State v Vuli - Writtens reasons for voir dire ruling [2016] FJHC 146; HAC174.2014S (4 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 174 OF 2014S

STATE

vs

JEKESONI VULI

Counsels : Mr. T. Qalinauci for State
Ms. L. Raisua for Accused
Hearings : 8 and 9 February, 2016
Ruling : 9 February, 2016
Written Reasons : 4 March, 2016

WRITTEN REASONS FOR VOIR DIRE RULING

1. The accused faced a charge of "aggravated robbery", contrary to section 311 (1)(a) of the Crimes Decree 2009. It was alleged that on 1 May 2014, at 2.30am, he and six others broke into the complainant's home at Nasinu, threatened his family and stole $31,350 worth of properties.
   
2. During the police investigation, the accused was caution interviewed by police on 31 May and 1 June 2014, wherein he allegedly admitted the offence. On 8 and 9 February 2016, the accused challenged the admissibility of his caution interview statements in a voir dire.
   
3. The prosecution called three witnesses, while the defence called the accused himself. I heard the parties and after hearing their closing submissions, I ruled the accused's caution interview statements as admissible 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. In this case, the dispute between the parties was familiar. The police caution interview officer (PW2) said the accused was given his right to counsel, his right to see his relatives and was given the standard rest and meal breaks. He was formally cautioned. He said, the accused co-operated with police and gave his statements voluntarily. The above were confirmed by the police witnessing officer (PW3). Both PW2 and PW3 said they did not assault, threaten or made false promises to the accused while he was in their custody.
   
6. The accused, on the other hand said, both PW2 and PW3 assaulted him during the interview. He said, they also swore at him and his mother. Because of the above, he admitted the offence. He said, he did not do so voluntarily.
   
7. I have carefully considered the parties' version of events. I have listened very carefully to their evidence. After considering the authorities mentioned in paragraph 4 hereof, and after looking at all the facts, I have come to the conclusion that the accused gave his caution interview statements voluntarily and out of his own free will. I therefore ruled his caution interview statements as admissible evidence, and the same could be used in the trial proper, but its weight and value, are matters for the assessors to decide.
   
8. 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..."
   
9. The above were the reasons for my ruling on 9 February 2016.
   

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.