State v Naua - Ruling on Voire Dire [2015] FJHC 106; HAC162.2013 (17 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No HAC 162 of 2013

STATE

v

KANEA NAUA

Counsel: Ms. P. Madanavosa for the State
Ms. M. Tarai (L.A.C.) for the accused.

Date of hearing: 17 February 2015
Date of Ruling: 17 February 2015

RULING
ON VOIR DIRE

1. The State seeks to adduce into evidence the record of an interview under caution made by the accused on the 13th and 14th April 2013 at Nasinu.
   
2. The accused objects to the admissibility of this record on the following grounds:
   
   1. He has been educated to Form 3 level in Kiribati and his English is not good enough to express himself clearly. The interview was conducted in English.
      
   2. He was not given enough time and did not understand the availability of Legal Aid Counsel.
      
   3. That the record of interview was not read back to him.
      
3. Other grounds relating to veracity of the answers were also raised but such issues are not a matter for this enquiry but a matter for the assessors.
   
4. Two witnesses gave evidence for the prosecution, the statement recorder and his witness. PW1, DC 3627 Kibau told the Court that he is based at Rabi Community Post. He speaks fluent Rabi dialect as well as English. He knows the accused very well from mixing in the Rabi community. He told the Court that when he interviewed the accused under caution, the accused was very well aware of the allegations being made against him and he understood the questions being asked of him. The only word that the accused did not understand was the word "obliged" which PW1 explained to him in the Rabi dialect. PW1 said he recorded all answers as given by the accused. He did say that he told him that when he gave his answers truthfully he might be able to say differently in Court. As far as reading the record back, he did say the accused chose not to read over the record when he had finished. The witness could not recall if he read it over to him or not. PW1 he explained to the accused his legal rights in both Rabi dialect and in English, and he understood the explanation. At no time did the accused make any complaint to him about not understanding or not being able to express himself.
   
5. PW2 was a witness to this process. He confirmed that the accused appeared to be understanding the process and participating willingly in it. He did however affirm that PW1 did not read over the interview to the accused. The accused never did complain during the interview about not understanding what was happening.
   
6. After the prosecution had closed its case on this voir dire, the accused took time with his counsel to discuss his options in defence. Counsel then told the Court that the accused elected to remain silent and to call no witness.
   
7. It is quite within the rights of an accused to remain silent and in fact it is a principle enshrined in section 14(2)(j) of the Constitution (2013). However in voir dire proceedings by not giving evidence there is no evidence before the Court of improprieties conducted during the caution interview process nor is there evidence, as has been claimed in this case, that the accused could not understand the language used in the interview. The grounds of objection are not in themselves evidence nor are questions put to the witnesses.
   
8. In a valiant attempt to have the record of interview held inadmissible, counsel for the accused relied on her closing address on the inconsistencies in the evidence of PW1 and PW2 as well as a breach of the Judges' Rules by not reading the record of interview back to the accused.
   

Analysis

9. I found the evidence of the two police officers to be true and reliable. The first prosecution witness told the Court that he knew the accused very well from the Rabi community and he knew that he understands English well and that he was fully aware of the procedure that was being undertaken. There were indeed discrepancies in the evidence of the two police officers but these were minor and did not go to the heart of the voluntariness of the interview. Nor did the claimed breach of the Judges' Rules have any bearing on the voluntariness of the interview. It is now well accepted that the Judges Rules are not rules of law and the failure to read the interview over to the accused does not affect my ruling here.
   
10. In the circumstances and relying on the convincing evidence of the two police officers I find that the interview conducted with the accused under caution was with the voluntary participation of the accused, and there being no evidence before me of any improprieties or oppression, I rule that the record of the interview be admitted into evidence.
    

P.K. Madigan
Judge

At Suva
17 February 2015