Diani v State [2012] FJHC 1352; HAC083.2011 (3 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 083/2011

BETWEEN:

THE STATE

AND:

EMOSI DIANI

COUNSEL: Ms A Lomani for the State
Mr A Vakaloloma for the Accused

Date of Hearing: 01-02/10/2012
Date of Ruling: 03/10/2012

VOIR DIRE RULING

01. The accused objects to the admissibility of the caution interview made on the 01/02/2011 at Nausori Police Station, on the basis that it was not voluntarily made but induced by threats and promises. The oral grounds on which he initially challenged the admissibility are:

1. That he was told to admit to make it easy and promised that he will not have imprison sentence.
   

2. That he was not fully explained the consequences of what was being questioned for and alleged offence.

3. That he was threatened by the interviewing officers.
   

02. The test for the admissibility of statement 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.

03. 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.

04. At the Voir dire inquiry Prosecution called two witnesses.

1. W/Cpl 2997 Susana Yaca was the officer who recorded the caution interview of the accused. According to her she has completed 09 years in police service. She is in charge of Juvenile Branch and Sexual Offence Unit of Nausori Police Station. She is attached to these units since 2009. On 01/02/2011 she has been instructed to record the caution interview of the accused by Crime Officer Shailesh. Accordingly she has recorded the Caution Interview of Emosi Diani at Crime Office in Nausori Police Station. It was commenced on 01/02/2011 at 10.00am. Only she and accused were present at that time. She could not get a witnessing police officer as no other police officers present in the police station except Cop. Jolame who charged the accused on 02/02/2011. Interview was recorded in Fijian language as per the request of the accused. She had explained all rights of the accused and consequence of a caution interview statement. Caution interview was recorded in question and answer form. She has translated the same in to English language. During the interview accused was calm and voluntarily answered the questions put to him. After recording the caution interview statement both accused and she placed their signatures. The hand written original caution interview statement was marked as P1 and the typed English translation was marked as P2. She identified the accused in open court.

In the cross examination she said that the accused was arrested on 01/02/2011 in the morning. She admitted that accused told her that he was suffering from blood pressure. She did not take the accused to hospital as accused told her that he has medicines. Witness further said that accused had told her that he would seek assistance from a lawyer on a subsequent date. She said that she knew what judges rules are.

In the re-examination witness said that she is not a doctor but admitted that she knew what blood pressure is.

2. Jolame Waqavuni was the charging officer who gave evidence next. According to him he charged the accused on 02/02/2011 at Crime Office, Nausori Police Station. Before the charge he had explained all the rights of the accused. Accused has extended fullest support to him. The charge was taken in Fijian Language and he had translated the same into English language. He identified the accused in open court.

In the cross examination witness said that he only charged the accused on 02/02/2011 at Crime Office, Nausori Police Station. He was unable to say whether the charges were wrong or not.

He was not re-examined by the state.

Prosecution then closed their case.

05. Defence was called and explained the rights of the accused. Accused elected to give evidence from witness box.

1. Accused giving evidence said that he was arrested on 01/02/2011 at 9.00 am at Nausori Town by police officers. He has come to Nausori Town in order to sell his produce in the market. He had not taken his breakfast at the time of his arrest. He was taken to a police station and kept one hour without morning tea. As he was hungry he felt dizziness. During the interview he was not given anything by the police. Though he said that he is suffering from high blood pressure, he was not taken to a doctor. He denied that he show his medicines to the police officer who recorded his caution interview statement. He denied that he read his caution interview statement before he placed his signature. He said that he was scared and afraid when he was taken to the police station.
   

In the cross examination accused said he is 85 years old and he brought up the victim when she was three months old. He says that he is suffering from high blood pressure since 2010. He denied that he possessed his medicines at the time of his arrest. He admitted that he was aware of the charge at the time of recording his caution interview statement.

In the re-examination accused said that he had high blood pressure at the time of recording his caution interview statement.

Analysis

The police officers giving evidence said that the accused was never forced to make a statement. He was in good health when his caution interview statement recorded. He was given all of his rights before recording his interview.

Accused in his evidence said that he was suffering from high blood pressure when his caution interview statement was recorded. Further he was without his medicine and breakfast when he was interviewed.

Having heard the evidence by prosecution and the defence, I accept the evidence of the police officers that the accused was not threatened and ill treated while his caution interview was recorded.

I am satisfied that the prosecution has proved beyond reasonable doubt that the accused made the Caution Interview Statement voluntary and that he was not threatened, ill-treated or oppressed. I have considered the demeanour of all the witnesses who testified before me.

I find the Caution Interview Statement to be admissible in evidence.

P.Kumararatnam
JUDGE

At Suva
03/10/2012