State v Hussain - Voir Dire Ruling [2015] FJHC 160; HAC248.2013S (6 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 248 OF 2013S

STATE

vs

MUBARAK HUSSAIN

Counsels : Ms. A. Vavadakua for State
Accused in Person
Hearing : 2 March, 2015
Ruling : 2 March, 2015
Written Reasons: 6 March, 2015

WRITTEN REASONS FOR VOIR DIRE RULING

1. The accused is charged with "burglary" [count no. 1], "rape" [count no. 2 and 3] and "sexual assault" [count no. 4]. During the police investigation, he was caution interviewed by police on 1 and 2 June 2013, at Nausori Police Station. He was formally charged by police on 2 June 2013, at Nausori Police Station.
   
2. In his police caution interview statements and charge statements, the accused allegedly admitted the offence to police. In a voir dire held on 2 March 2015, the accused challenged the admissibility of the above interview and charge statements. The prosecution called a total of four witnesses [all police officers], and the defence called the accused himself to give evidence.
   
3. The issue was basically similar to that often argued in a voir dire. The police said the accused gave his interview and charge statements voluntarily and out of his own free will. The police said, they did not assault, threaten or made promises to the accused, while he was in their custody. The accused said exactly the opposite. He said, the police assaulted him and put chillies on his private parts to force him to confess. He said, they forced him to sign his interview and charge statements. He said, he never gave his interview and charge statements voluntarily, and they should be struck out, as inadmissible evidence.
   

4. 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 ...."

5. I have heard all the evidence. I accept the prosecution's witnesses evidence as credible, I accept what they said. I rule that the accused's caution interview statements and charge statements are admissible evidence, and their acceptance or otherwise will be a matter for the assessors.

6. The above are the reasons for my ruling on 2 March 2015.

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : In Person.