Kalou v State [2012] FJHC 995; HAC57.2011 (26 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMNAL JURISDICTION

Criminal Case No. HAC 57 of 2011

BETWEEN:

PETERO KALOU

AND:

STATE

BEFORE : Mr. Justice Paul K. Madigan

Counsel : Mr. M Mataiva for the State
Accused in person.

Date of Hearing : 26 March 2012
Date of Ruling : 26 March 2012

VOIR DIRE RULING

1. The State seeks to adduce in evidence on the general issue, a cautioned interview made by the accused on 27 October 2011 at the Savusavu Police Station, along with a charge statement in answer to the charges made two days later. The accused alleges that these statements were obtained by inducement, he being told by the officers to "make it easy on yourself and admit".
   
2. The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional (now read Common Law) rights. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that burden remains on the State throughout. The standarof course beyond reasonablenable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State.
   
3. ​Evidence of inducement should I find it proved, amounts to an attack on the voluntariness of the statement in that the inducement would sap the will of the accused, and render his participation as unwilling.
   
4. The State called three witnesses in support of it's case on the voir dire. The first was DC 3430 Koroca. He gave rather hesitant and unhelpful evidence that it was he who conducted the interview with the accused in the Fijian vernacular and that it was he who recorded it. He was certain that no inducements had been offered to the accused and he was certain that he was never told that he should "make it easy for himself by confessing". At no time did the accused make any complaints to him and if he had done so, he would have recorded it in the interview.
   
5. P.C Peni, was the officer who took the charge statement from the accused. He did not offer any inducements to the accused, nor did the accused make any complaints or protests to him about the creation of either document. He did however allow an astonishing admission. He said that the accused admitted to him that he did have sexual intercourse with his daughter but that he had never used a dagger to achieve this. The witness said that this admission was contained in the charge statement. However he subsequently resiled from that position and admitted that this confession was made by the accused after the charge statement was finished and that he never wrote it down. He was of the view that as it was uttered after charge it was unnecessary to record it in the answer to charge statement but finally admitted to the Court that it was important and should have been recorded.
   
6. The third witness for the State was WDC Maca who translated the two documents into English and who could take the State's case no further than that.
   
7. The accused, on being explained his rights elected to remain silent and give no evidence.
   

Analysis

8. While the main prosecution witness was hesitant and unsure of his brief, he was adamant that he had offered no inducements to the accused. This coupled with the fact that there was no evidence before the court that any inducements were made leads the court to the inevitable conclusion that the caution interview was conducted voluntarily by the accused. There is no suggestion of oppression surrounding the interview and I therefore find that the answers were given voluntarily. It may be adduced into evidence in the trial on the general issue.
   
9. The position on the charge statement however is quite different. Although there is no evidence that there were improprieties extended to the accused, it is a matter of some concern to the Court that it is admitted that words were uttered by the accused which were not recorded. In the circumstances, I cannot be sure that the charge statement is an accurate record of what transpired during the charging process with the result I find it cannot be relied upon and it is therefore inadmissible and cannot be used at trial.
   

   Paul K. Madigan
   JUDGE

At Labasa
26 March 2012