State v Caucau - Written reasons for voir dire ruling [2016] FJHC 113; HAC011.2014LAB (18 February 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 011 OF 2014LAB

STATE

vs

URAIA CAUCAU
SERU TUKANA

Counsels : Ms. W. Elo for State
Ms. S. Dunn for 1st Accused
Mr. M. Fesaitu for 2nd Accused

Hearing : 15 February, 2016
Ruling : 15 February, 2016
Written Reasons : 18 February, 2016

WRITTEN REASONS FOR VOIR DIRE RULING

1. The accuseds were charged with raping the complainant on 20 December 2013, contrary to section 207 (1) and (2) (a) of the Crimes Decree 2009. During the police investigation, they allegedly made some confessions when caution interviewed by police.
   
2. On 15 February 2016, in a voir dire, they challenged the admissibility of their police caution interview statements, on the ground that, the same were not given voluntarily to the police. The prosecution called two witnesses. For the defence, only Accused No. 2 gave evidence.
   
3. I heard the witnesses on 15 February 2016, and at the end of the voir dire, I ruled the two accuseds' caution interview statements as inadmissible evidence. I said I would give my written reasons later. Below are my reasons.
   
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 carefully considered the evidence of the prosecution's witnesses and the defence witness. I have compared and analyzed all of them. After considering the authority mentioned in paragraph 4 hereof, and after looking at all the facts, I have come to the conclusion that the accuseds did not give their caution interview statements voluntarily. I therefore rule that their caution interview statements are declared as inadmissible evidence, and they cannot be tendered as evidence in the trial proper.
   
6. 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..."
   

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa.

Solicitor for the Accuseds : Office of the Legal Aid Commission, Labasa