State v Rawat - Written Reasons for Voir Dire Ruling [2016] FJHC 1139; HAC146.2011L (23 December 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
LAUTOKA CRIMINAL CASE NO. HAC 146 OF 2011L

STATE

vs

TARUN KUMAR RAWAT

Counsels : Mr. Y. Prasad, Mr. S. Nath and Mr. A Dutt for State
Mr. A. Singh for Accused
Hearing : 14 November, 2016
Ruling : 14 November, 2016
Written Reasons : 23 December, 2016

WRITTEN REASONS FOR VOIR DIRE RULING

1. The accused was charged with “murder”, contrary to section 237 of the Crimes Decree 2009. It was alleged that on 21 July 2011, at Nadi in the Western Division, he murdered Tevita Tabua.
   
2. During the police investigation, the accused was caution interviewed by D/Corporal 2019 Anil Kumar, at Nadi Police Station, on 23, 25 and 26 July 2011. In his caution interview statements, the accused allegedly admitted repeatedly punching and stoning the deceased to death. He was formally charged by D/Corporal 2505 Wayne Tanu on 26 July 2011. He appeared to admit killing the deceased on 21 July 2011. The accused challenged the admissibility of the above caution interview and charge statements in a voir dire on 14 November 2016.
   
3. The prosecution called five witnesses, 3 serving police officers and 2 ex-police officers. The defence called the accused as their only witness. There were 6 witnesses in total. The parties made their closing submissions. I heard them. I ruled the caution interview and charge statements as admissible evidence. I said I would give my written reasons later. Because of the pressure of trial time and the pending trial cases, I wasn’t able to deliver my reasons until now. Below are my reasons.
   
   4. The law in this area is well settled. On 13^th July 1984, the Fiji Court of Appeal in Ganga Ram &ShiuCharan vReginam, 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. The prosecution’s witnesses’ evidence were all similar. They said, they did not assault, threaten or forced the accused to make his admissions in his caution interview and charge statements. They said, he was given his right to counsel and other rights. They said, he was formally cautioned and was given the standard rest and meal breaks. They said, the accused willingly signed his caution interview and charge statements, and the same were counter-signed by the police. They said, the accused made no complaints of any untoward police behaviour when he first appeared in the Magistrate Court and High Court, on this matter. They said, the accused gave his statements voluntarily and out of his own free will.
   
6. The accused, on the other hand, denied the above when he gave evidence. He said, when caution interviewed he was handcuffed by police. He said, they repeatedly assaulted him during the interview. He said, he was later blindfolded, taken in a police vehicle to a secluded spot, and repeatedly assaulted. He said, his will was sapped, and he decided to admit whatever the police wanted. He said, he did not give his caution interview and charge statements voluntarily.
   
7. I have carefully listened to and considered the parties’ evidence and their closing submissions. I find the prosecution’s witnesses’ evidence to be more credible than the accused’s evidence. Had he really been assaulted or threatened by police while he was in their custody, he would have complained to the Magistrate Court or High Court, when he first appeared in those courts. However, he did not. This to me showed he had no complaints against the police. I accept that he gave his caution interview and charge statements to police voluntarily.
   
8. In giving my reasons abovementioned, I bear in mind what the Court of Appeal said in SisaKalisoqo 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 State : Office of the Director of Public Prosecution, Lautoka
Solicitor for Accused : A. J. Singh Lawyers, Nadi