IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 193/2010

BETWEEN:

THE STATE

AND:

1.WAISEA SOATA
2. ISIMELI WAKANIYASI

BEFORE: Hon. Justice Mr Prabaharan Kumararatnam
COUNSEL: Ms T. Leweni for the State
Accused in Person

Date of Hearing: 19-20/06/2012
Date of Ruling: 22/06/2012

VOIR DIRE RULING

01.	The accused Waisea Soata and Isimeli Wakaniyasi are jointly charged for two counts of Robbery with Violence on amended information by Director of Public Prosecution. The state intends to rely on the Records of Interview of the accused.

02. The 1st accused objects to the admissibility of a caution interview made on 11/09/2009 at Valelevu Police Station, on the basis that it was not voluntarily made but induced by threats and assault. 

03. The 2nd accused objects to the admissibility of a caution interview made on 23/09/2009 at Valelevu Police Station, on the basis that it was not voluntarily made but induced by threats and assault. 

04. 	The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

05. Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear.

The Law

06. The principles governing the admissibility of an admission or a confession are well settled. A confession or an admission made by an accused to a person in authority could not be properly given in evidence unless it was shown that it was made voluntarily, that is, not obtained through violence, fear or prejudice, oppression, threats and promises or other inducements (Ibrahim v R {1914} AC 59). Even if such voluntariness is established, the trial court has discretion to exclude a confession or an admission on the ground of unfairness (R v Sang [1980] AC 402). A further ground that an admission or a confession could be excluded is for breaches of constitutional rights.

07. Oppression is anything that undermines or weakens the exercise of free will (R v Prestly [1965] 51 Cr. App.R). The onus of proving voluntariness, fairness and lack of oppression is on the prosecution and they must prove these matters beyond a reasonable doubt. If there has been a breach of any of the accused's constitutional rights, the prosecution must prove beyond a reasonable doubt that the accused was not thereby prejudiced.

The Prosecution case 

08. At the Voir dire inquiry Prosecution called five (05) witnesses in the 
 following order.

1.	DC4322/Vinaya Namata was instructed by D/Sgt. Amani to arrest 1st accused from his residence at Munda Lane, Nabua. He arrested him and brought to Nabua Police Station on 04/09/2009.He had gone in a police vehicle with a team. At the time of arrest 1st accused was informed reason for his arrest and explained all of his rights. At the Nabua police he had seen 2nd accused with police officers from Lautoka. He had greeted 2nd accused at the police station. He said that neither he nor any police officer assaulted, threatened, intimidated, forced or put pressure on the accused. He identified 1st and 2nd accused in the court. 

In the cross examination by 1st accused he denied that he assaulted and threatened 1st accused while he was in his custody. After handing over 1st accused to Nabua Police Station he had gone for other duties.
In the cross examination by 2nd accused witness told court that he can't re-call the day when he saw 2nd accused at Nabua Police Station. He further said that all notes had been entered in his note book. 

Witness was not re-examined by the state.

2.	DC/1841 Sashi Kumar gave evidence next. According to him he was the investigating officer in this case. His duties are to compile dockets, compile witnesses list and submit the file to court. According to him both accused were interviewed under caution and handed over the original caution interview statements to the registry in Valelevu Police Station. When searched the exhibits after it were handed over to Valelevu Police Station registry only one was found which belong to 2nd accused. He could not locate original caution interview statement of 1st accused. Hence moved to mark photo copy of the same. At this point 1st accused objected for the application.

In the cross examination by 1st accused witness admitted that original caution interview statement of 1st accused had been misplaced. He further admitted that he only has the photo copy of the caution interview statement of 1st accused.

2nd accused did not cross examine the witness.

He was not subjected for re-examination. 

3.	D/Sgt 373 Lemeki Mawalu who interviewed 1st accused under caution gave evidence next. On 11/09/2009 his supervising officer had directed him to interview 1st accused under caution. The interview was conducted in Crime Branch, Valelevu Police Station. A/D/Cpl Pita Qiolevu functioned as witnessing officer. All rights were given to the accused. The accused was appeared to be normal. The interview was recorded in English language. It was recorded in question and answer form. Neither he nor any police officer assaulted, threatened, intimidated, forced or put pressure on the accused. He identified the 1st accused in open court. The photo copy of the caution interview statement of 1st accused marked as Exhibit-01(a) and the typed one marked as Exhibit-01(b) He identified his signature and 1st accused's signature.

In the cross examination by 1st accused witness said 1st accused gave his statement voluntarily. He denied any assault either by him or any other police officer during the interview. According to him nobody certified that the 1st accused was physically and mentally fit at that time. Witness further said that PC/Pita Qiolevu who was present at the time of his interview was not a witnessing officer. He was present to help the witness.

He was not cross examined by 2nd accused. State Counsel did not re-examine the witness. 

4.	A/D/Cpl. Pita Qiolevu gave evidence next. According to him he was the witnessing officer of the caution interview statement of 1st accused. According to him he was present throughout the interview and assisted Lemiki Mawalu who recorded the caution interview statement of 1st accused at Valelevu police station. 1st accused had answered the questions fairly and signed the statement. He identified the signature of 1st accused. He admitted that he has not signed the caution interview statement. 

In the cross examination by 1st accused witness admitted that he forgot to sign the caution interview statement. Witness told court that the accused gave his statement on his free will.

He was not cross examined by 2nd accused. State Counsel did not re-examine the witness.

5.	DC /3724 Josevata Vikili who recorded the caution interview statement of 2nd accused gave evidence next. On 23/09/2009 his supervising officer had directed him to interview 2nd accused under caution. The interview was conducted in Crime Branch, Valelevu Police Station. All rights were given to the accused. The interview was recorded in English language. Neither he nor any police officer assaulted, threatened, intimidated, forced or put pressure on the accused. He identified the 2nd accused in open court. The original caution interview statement of 2nd accused marked as Exhibit-02(a) and the typed copy marked as Exhibit-02(b). He identified the signature of 2nd accused. No witnessing officer was present at the time of the interview. 

In the cross examination by 2nd accused witness said 2nd accused gave his statement voluntarily and placed his signature. Witness admitted that there was no witnessing officer present. Witness admitted that 2nd accused's name was elicited by other suspects whom were arrested in relation to this case.

Answering to questions put forward by court witness admitted that only accused had signed the caution interview statement. He admitted that he has not signed the caution interview statement of 2nd accused. Further he failed to answer the court as to how he was going to prove that the caution interview statement of 2nd accused was recorded by him in absence of his signature.

 1st accused did not cross examine the witness.

In the re-examination witness said that he forgot to sign the caution interview statement of 2nd accused.

09.	After calling five witnesses and marking Exhibits-01(a) (b) and 02(a) (b) prosecution closed their case.

10. 	After closing the prosecution case defence was called and explained the rights to both accused. Both opted to remain silent. 

11. 	The original caution interview statement of 1st accused was not produced before this court. Sgt/Lemiki Mawalu who recorded the caution interview statement of 1st accused said that Cpl/Pita Qiolevu was present not as a witnessing officer. He was present during the interview to assist the interviewing officer. But a contradictory position was taken by Cpl/Pita Qiolevu. According to him he was present during as a witnessing officer but he failed to counter sign the statement. This contradictory position very clearly shows that the caution interview statement was not recorded properly. 

12. 	In respect of 2nd accused a serious doubt had been raised regarding voluntariness of recording his caution interview statement. The police officer who recorded the caution interview statement has failed to sign the statement. The caution interview statement was only signed by the 2nd accused and his signature appears at end of every page. This doubt had been further aggravated as his caution interview statement was not counter signed by any police officer.

13. 	The evidence of the police witnesses for the prosecution, as shown above, was unsatisfactory, tainted with contradictions and uncertainty.

14.	I, therefore, rule out the admissibility of the alleged caution interview statements of both accused marked as Exhibit- 01(a) and Exhibit-02(a) on the grounds of their involuntariness and unfairness. Their admission in evidence will affect the fairness of the proceedings. Accordingly, I reject the caution interview statements of both accused as being irrelevant.

P.Kumararatnam
JUDGE

At Suva
22/06/2012