State v Fraser - Voire Dire Ruling [2014] FJHC 712; HAC022.2010 (25 September 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022/2010

BETWEEN:

THE STATE

AND:

JACK ANTHONY FRASER

COUNSEL : Mr F. Lacanivalu for the State
Ms. S. Jiuta for the Accused

Dates of Hearing : 22-24/09/2014
Date of Ruling : 25/09/2014

VOIR DIRE RULING

[1] The accused Jack Anthony Fraser is charged for one count of Robbery with Violence contrary to Section 293(1) (b) of the Penal Code Cap 17 by the Director of Public Prosecution. The state intends to rely on the Record of Interview of the accused.

[2] The accused objects to the admissibility of a caution interview made on 8/12/2009 at Crime Office Lautoka Police Station on the basis that it was not voluntarily made but induced by threats and assault. The oral grounds on which he initially challenged the admissibility are:

(a) That the statements were obtained in circumstances that were unfair to the Accused;

(b) The Accused was systematically softened to the interview in that he was kept in custody in circumstances which was degrading and inhumane;

(c) That the statements were obtained in circumstances that were oppressive;

(d) That the statements were obtained in breach of Rule 2 and 4 of the Judge's Rules;

(e) That the Statements were obtained in breach of the Accused's right to Counsel before his arrest, before his Caution Interview and whilst in custody.

(f) That the Accused was assaulted when he was arrested in Suva and brought to Lautoka. He was further assaulted on the way from Suva to Lautoka.

(g) The Accused was further threatened of assault by the Police Officers who arrested him and further threats were made by the Interviewing Officer in presence of the Police Officer who was sitting whilst the second Accused was interviewed.

(h) The Accused was coerced by Police Officers to admit the alleged offence.

(i) The Accused was forced to comply with the questions put to him and also to endorse his signature.

[3] The test for the admissibility of statement made by an accused to person in authority is whether it was voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights. The burden proving voluntariness, fairness, lack of oppression and observance of constitutional rights rests on the prosecution and all matters must be proved beyond reasonable doubt.

[4] 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

[5] 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 [1979] UKHL 3; [1980] AC 402). A further ground that an admission or a confession could be excluded is for breaches of constitutional rights.

[6] 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 reasonable doubt that the accused was not thereby prejudiced.

The Prosecution case

[7] At the Voire Dire inquiry Prosecution called 04 witnesses in the following
order.

[8] DC/Marika Qolocava has completed 12 years service in Fiji Police Force. He was attached to CID branch Lautoka Police Station in the year 2010. He was the investigating Officer in this case. On 18/12/2009 before recording caution interview statement of the accused, he had visited the crime scene and recorded the statement of the complainant.

[9] The interview was conducted at CID Office, Lautoka without a witnessing
Officer. All the rights were given to the accused. Caution Interview was recorded in English language in question and answer form. Accused was normal during the interview. Interview was commenced on 18/12/2009 at 7.50 hours and concluded at 16.40 hours. Necessary breaks were given to the accused. The Accused and the witness placed their signatures after completion of the caution interview statement. The accused was not assaulted before, during or after recording the caution interview statement. Original caution interview statement was marked as P1. He identified the accused in open court.

[10] In the cross- examination witness said that as the accused co-operated with
him he did not summoned a witnessing officer. Witness admitted that signatures not obtained in all pages. He further admitted that he was fully aware of the incident before recording the caution interview statement of the accused as he had recorded the statement of the complainant and interviewed another accused of this case. Further the movement of the accused not recorded in any of the books. The interview was recorded in an open room in presence of CID officers. Witness reiterated that he cautioned the accused before recording the caution interview statement. He denied assaulting the accused during the caution interview recording.

[11] DC/3830 Apenisa was on duty at Lautoka Police Station on 18/12/2009. He
released the accused Jack Fraser to DC/Marika for recording of his caution interview statement. He had released the accused several times but none of them were recorded in the station diary. He is unable to recall whether the accused was assaulted by the interviewing officer or any police officers of the station.

[12] PC/Ropate Yagomate had locked the accused on 18/12/2009 after he assumed
duty at 3.00pm. He too is unable to recall whether the accused was assaulted by the interviewing officer or any police officers of the station.

[13] DC/ Misidomo Baseisei had charged the accused on 18/12/2009 in English
language. He was cautioned before the charge. Accused was not subjected to any threat or assault by any of the police officers during the charge. The charge statement was mark as P2.

[14] In the cross examination witness denied that he forced the accused to sign the
charge statement.

[15] After closing the prosecution case defence was called and the accused gave
evidence from witness box.

[16] According to the accused he was arrested on 15/12/2009 by CID officers. After
assaulting he was taken to Lautoka Police Station for further inquiry. While going to Lautoka in a vehicle, he was subjected to assault and threat. He was threatened that the officers were going to insert the baton into his anus. He was sworn at several times and was spat at by the police officers. He was locked in a cell and was not given any food. He was interviewed in presence of CID officers and the charging officer. Only one break was given.

[17] In the cross - examination accused admitted that he did not complain to
anybody regarding police assault. He further said that his signature was obtained forcibly. Answering questions put forward regarding certain questions in the caution interview statement, the accused said that he did not answered those questions voluntarily. Finally the accused said that the charge statement was not recorded voluntarily.

[18] That is the end of the defence case.

[19] The accused's main contention is that he was assaulted and threatened before
and during recording of his caution interview statement. The officer who recorded the caution interview statement admitted that CID officers who accompanied the accused to Lautoka Police Station were present when the interview was recorded. They were not present as witnessing officers.

[20] Further neither the accused nor the recording officer had placed their signatures to several pages of the caution interview statement. Further he was not taken to a doctor before or after recording of his caution interview statement. His movements were not recorded in any of the books maintained in the police.

[21] In this case the police had not followed proper procedure to record the caution interview of the accused. Presence of CID officers and not obtaining signatures to several pages of the caution interview statement creates a serious doubt as to the genuinity of recording the caution interview statement.

[22] I, therefore, rule out the admissibility of the alleged Caution Interview Statement of the accused marked as P1 and the Charge Statement marked as P2 on the ground of involuntariness. It admission in evidence will affect the fairness of the proceedings. Accordingly, I reject the Caution Interview Statement and Charge Statement of the accused as being irrelevant.

P. Kumararatnam
JUDGE

At Lautoka
25/09/2014

Solicitors: Director of Public Prosecutions
Legal Aid Commissions