State v Volau [2013] FJHC 98; HAC0168.2011S (8 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 0168 OF 2011S

STATE

vs

VILIKESA VOLAU

Counsels : Mr. Y. Prasad for State
Mr. S. Waqainabete for Accused
Hearings : 4th March, 2013
Ruling : 4th March, 2013
Written Reasons: 8th March, 2013

WRITTEN REASONS FOR RULING IN A "TRIAL WITHIN A TRIAL"

1. The accused was caution interviewed by Corporal 387 George Bower, at the Crime Office, at Levuka Police Station, on 27th January, 2011. He allegedly confessed to inserting his finger into a 14 year old female complainant's vagina at Natauloa Village, Naira, on 24th January, 2011. In this "trial within a trial", the accused is challenging the admissibility of his alleged confession. He said, he was threatened by Corporal Bower to give his confession.
   
2. On 4th March, 2013, I heard the "trial within a trial". The prosecution called two witnesses, that is, the caution interviewing officer (Corporal George Bower) and the witnessing officer (DC 3770 Sosiceni Tamani). The defence called the accused. After hearing the evidence, I ruled the caution interview statements as admissible evidence, and I said I would give my reasons later. Below are my reasons.
   
3. The law in this area is well settled. On 13th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v Reginam, Criminal Appeal No. 46 of 1983, said the following, "....it will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as the "flattery of hope or the tyranny of fear" Ibrahim v R (1941) AC 599. DPP v Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account ...."
   
4. The dispute in this "trial within a trial" was like any other. The prosecution said, they did not assault, threaten or made promises to the accused before, during and after the caution interview. On the other hand, the accused said, he was threatened and forced to make the confession. In this case, I found the prosecution's evidence credible, and consequently, I ruled in their favour.
   
5. In ruling in the prosecution's favour, I took into account the authorities mentioned in paragraph 3 hereof, and found the accused gave his confession voluntarily, and I refuse to exercise my discretion to rule the same inadmissible on the grounds of general unfairness. The acceptance or otherwise of the confession in the trial proper, will be a matter for the assessors.
   

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva
Solicitor for Accused : Legal Aid Commission, Suva