State v Hurtado [2015] FJHC 1030; HAC073.2014S (24 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2014S

STATE

vs

AIDAN ALEC HURTADO

Counsels : Mr. M. Delaney and Ms. S. Navia for State
Ms. S. Vaniqi for Accused
Hearings : 2, 3, 4 and 5 November, 2015
Ruling : 5 November, 2015
Written Reasons: 24 December, 2015

WRITTEN REASONS FOR VOIR DIRE RULING

1. In Suva High Court Criminal Case No. HAC 073 of 2014S, the applicant was facing the following charge:
   

Statement of Offence

UNLAWFUL IMPORTATION OF ILLICIT DRUGS: Contrary to Section 4 of the Illicit Drugs Control Act 2004.

Particulars of Offence

AIDAN ALEC HURTADO between the 7th and 10th of February 2014 imported into the Republic of Fiji at Nadi in the Western Division, 20.5042 kilograms of illicit drugs namely cocaine without lawful authority.

2. During the police investigation, the police allegedly caution interviewed the accused at the CID Headquarters in Toorak, Suva on 18, 19 and 20 February 2014, in the English language. He was caution interviewed by Detective Inspector Aiyaz Ali (PW3), and this interview was witnessed by Detective Corporal Rinesh Prasad (PW4). PW3 allegedly asked the accused a total of 364 questions, and the accused allegedly gave 364 answers. He was formally charged by police on 20 February 2014.
   

3. During the caution interview, the accused allegedly admitted the offence. In his charge statement, he allegedly said, he was sorry for the problems he caused. In the four days voir dire trial, the accused challenged the admissibility of his caution interview and charge statements, on the grounds that he does not understand and read English. He said, he only read and spoke Spanish. He said, his interview and charge statements were a fabrication by police.

4. The prosecution called five witnesses, all police officers. The defence called the accused, and his parents. The prosecution said that, when the accused was interviewed and formally charged, his right to counsel and all his other rights were given to him. They said, he was formally cautioned, and was given the standard rest and meal breaks. They said, he understood the English language, and that's why they interviewed and formally charged him in the English language. They said, he gave his interview and charge statements voluntarily and out of his own free will.

5. The defence, on the other hand, denied the prosecution's version of events. He said, ever since he was 2 years old, he resided in Columbia and spoke only Spanish. He also read Spanish. He said, he does not understand English. He said, when he was caution interviewed and formally charged, the police communicated with him in English. He said, he did not understand what the police were saying. He said, the police wrote the questions and answers to his interview and when he was formally charged. They told him to sign the above statements. He said, he did so without understanding what they were.

6. He said, the answers the police said he gave in his police caution interview and charge statements were a complete fabrication by police. He said, he did not give the above statements voluntarily and they were not given out of his own free will. He asked that because of the above, his caution interview and charge statements be ruled as inadmissible evidence.

7. 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..."

8. I have carefully considered the evidence given by the prosecution's and the defence's witnesses. I have carefully compared and analyzed them. After considering the authority mentioned in paragraph 7 hereof, and after looking at all the facts, I have come to the conclusion that the accused understood simple English and gave his caution interview and charge statements voluntarily and out of his own free will. I therefore rule that his caution interview and charge statements are admissible evidence, and the same could be used in the trial proper, but its weight and value, are matters for the assessors to decide.

9. In giving my reasons abovementioned, I bear in mind what the Court of Appeal said in Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, where their Lordships said: "...We have of recent times said that in giving a decision after a trial within a trial there are good reasons for the Judge to express himself with an economy of words..."

10. The above were the reasons for my ruling on 5 November 2015.

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Vaniqi Lawyers, Suva.