State v Nagaqia - Ruling Voir Dire [2015] FJHC 974; HAC126.2015 (4 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 126 of 2015

STATE

v.

LASARO NAGAQIA

Counsel: Ms. S. Kant with Mr. E. Samisoni for State
Ms. L. Ratidara for Accused

Date of Hearing : 03rd December 2015
Date of Ruling : 04th December 2015

RULING
[Voir Dire]

1. The accused Lasaro Naqaqia challenges the admissibility of his caution interview statement he made to the police on 19th March 2015 on the following grounds:
   
   1. That no one else was present during the interview;
      
   2. That the interviewing officer verbally harassed him to admit after he denied the allegation.
      

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 Interviewing officer to give evidence. He said that he caution interviewed the accused and gave his right to counsel, right to have a family member or a church member present. He said that the accused did not wish anybody to be present. He said that he did not harass the accused verbally to make admission. Caution interview statement had been taken in i-taukei language and translated to English language by him and both the original i-taukei language statement and the translation were produced in evidence. He said that the accused read the statement himself and signed.
   
4. In cross examination he said that it takes about 1 hour and 15 minutes to come to the Police station from Wainimakutu village. Accused was not accompanied by anybody. He denied verbally threatening the accused. It was suggested that he threatened the accused saying that he would break his penis if he did not admit. He denied doing so.
   
5. Accused giving evidence said that he was arrested and taken to the police station and that he was 18 years old then. At the police station the Interviewing officer swore at him saying "boci, say it". He said that he was very scared as it was the first time at the police station. He said that he admitted in his interview as the Interviewing officer was talking to him roughly.
   
6. In cross examination he said that he was interviewed in i-taukei language and that he understood. He said that he was asked whether he would like to consult a lawyer, family member or church member, he then said 'No'. He said that he did not want anybody to be present at the interview. He also said that he knew that he was not obliged to say anything unless he wished to do so, as it was explained to him.
   
7. In further cross examination, he said that he was forced to answer and forced to say what he said. He then said that he wanted somebody to be with him but the police officer had said 'No'. He said that he did not tell the Magistrate or the Judge that he was forced to admit, because he was scared.
   
8. The police officer in his evidence clearly said that he gave all the rights to the accused and that the accused made the statement voluntarily. Police officer was consistent in his evidence. I find that the police officer was forthright and his evidence would be relied upon.
   
9. It was suggested to the police officer when he was cross examined, that he told the accused that he would break his penis. However, the accused did not say that in his evidence. Accused said that he was told 'boci, say it'. In his own evidence the accused said that his rights were given and that he did not want to have somebody to be with him at the interview. Changing his own version he again said that he wanted somebody, but police denied it. I bear in mind that the accused was 18 years old. However the accused contradicted himself in his evidence 'per say'. Evidence of the accused is tainted with inconsistencies and cannot be relied upon.
   
10. I find that the prosecution has proved beyond reasonable doubt that caution interview statement was recorded fairly, accused was given his rights, and the statement was made by the accused voluntarily.
    
11. Therefore 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