State v Naicker - Ruling [2015] FJHC 529; HAC279.2013 (7 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 279 of 2013

STATE

V

KISHORE NAICKER

Counsel: Mr. A. Pakafor State
Mr. J. Savou for Accused

Date of Hearing: 6th July 2015
Ruling: 7th July 2015

RULING
[Voir Dire]

1. The accused challenges the admissibility of his caution interview statement he made to the police on 22/07/2013 on the following ground:
   
1. That the accused's caution interview was recorded in the English language however he was questioned in the Fiji – Hindi language neither being any opportunity given to him prior to signing to read his caution interview nor be explained of its contents.
   
2. The prosecution must prove beyond reasonable doubt that the confession made by the accused was voluntary, and was made without threats, inducement, promise or oppression. Also prosecution must prove that the accused was given his rights and if his rights were breached that he was not prejudiced by the breach.
   
3. Prosecution called the Interviewing Officer to give evidence. He said that he gave the accused his rights. The accused has opted to record the interview in English language. He said he explained the accused the contents of the interview. The accused understood the contents and signed, he said. He denied that he questioned the accused in Fiji Hindi language. He said that he gave the accused the opportunity to read, but the accused wanted it to be read over to him. He said that the contents were explained to the accused and he understood and signed.
   
4. Accused giving evidence said that he opted to record the interview in Hindi. He said that the officer questioned him in Hindi and recorded it in English. There had been no witnessing officer. He said he signed because the police officer wanted him to sign. In cross examination he said that he cannot read Hindustani language, yet he wanted the interview to be conducted in Hindi. He said he sometimes read the Fiji Times newspaper. On questioning about question 65 where he was asked whether he wanted to add, alter or correct anything, he said he answered 'no'.
   
5. The accused did not challenge the voluntariness of him making the caution interview statement. He did not allege that he was oppressed or threatened.
   
6. His grievance is that he was unfairly treated. That he was questioned in Hindi language but recorded in English language. That he was not given an opportunity to read the statement.
7. However the accused admitted that he cannot read Hindustani. He also admitted that he said 'No' when he was asked whether he wanted to alter, add or delete anything in his statement. He admitted that he cannot read Hindustani but can read English a little bit.He even reads the Fiji Times newspaper. I find that the accused was not truthful when he said that he did not know the contents when he signed.
   
8. Having heard the evidence of the officer who recorded the caution interview statement and the accused, I accept the evidence of the police officer as truthful and forthright. I find that the prosecution has proved beyond reasonable doubt that the caution interview statement was made voluntary and without oppression. I also find that the accused was given all his rights and also no prejudice caused to him by recording the caution interview statement in English language. Therefore I find that the prosecution proved beyond reasonable doubt that the accused was treated fairly when recording the caution interview statement.
   
9. I hold that the interview statement be admissible in evidence.
   

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for Accused