State v AB - Ruling [2016] FJHC 58; HAC181.2011 (3 February 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 181 OF 2011

BETWEEN :

STATE

AND :

AB

Counsel : Mr. Niudamu for State
Mrs. Narara for the Accused

Date of Hearing : 3rd of February 2016
Date of Ruling : 3rd of February 2016

RULING

Introduction

1. Prosecution proposes to give in evidence the caution interview of the accused person, for which accused person objected on following grounds that;

1. At the time of his interview the accused was coerced by WDC Asenaca to admit the alleged offence,
   

ii. The accused was forced to comply with the questions put to him and also to endure his signature,

2. Accordingly, the voir dire hearing was conducted on the 3rd of February 2016. The prosecution called one witnesses. The accused neither gave evidence nor called any other witnesses for the defence. At the conclusion of the hearing the learned counsel for the prosecution and the accused made their respective closing submissions. Having carefully considered the evidence adduced during the course of the hearing and the respective submissions of the parties, I now proceed to pronounce my ruling as follows.
The Law

3. The Privy Council in Wong Kam –Ming v The Queen (1982) A.C. 247 at 261 has discussed the basic control over admissibility of statement, where it was held that; "The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."
4. The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test of admissibility of caution interview of the accused person at the trial, where it was held that "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 or 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 (1914) AC 599. DPP v Pin 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." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

5. It appears that the test enunciated in Shiu Charan (supra) constitutes two components. The first is the test of oppression. The court is required to satisfy that the statement in the caution interview had been taken without any form of force, threats, intimidation, or inducement by offer of any advantage. The second component is that, even though the court is satisfied that the statement was given voluntarily without any form of threat, force, intimidation or inducement, it is still required to satisfy that no any general grounds of unfairness existed before or during the recording of the caution interview.
Analyses
6. The Interviewing officer gave evidence for the prosecution, explaining the manner that she recorded the caution interview of the accused person. She stated that there was no intimidation, force, coerce, threat, promise, or manipulation on the accused to give his answers. The accused freely gave his answers in the caution interview. The accused looked fit and gave his answers voluntarily. At the conclusion of the recording of the interview, the accused has signed the caution interview. WDC Asenaca stated in her evidence that the accused was given all of his right during the caution interview.
7. During the cross examination, WDC Asenaca admitted that she did not actually asked the accused whether he was fit to give his answers. However, she explained that she asked the accused whether he was suffering from any form of sickness, for which he answered "no". She confirmed that the accused had his breakfast. She then came to a conclusion that the accused was fit to commence the caution interview.

8. WDC Asenaca further admitted that she has over sighted to sign on the some of the pages of the caution interview, but the accused has signed on them in order to confirm that he gave his answers. She denied that she forced the accused to sign the caution interview. She stated that there is no need for her to sign at the end of every question and answers of the caution interview.

9. The accused did not give any evidence. I am mindful of the fact it is the burden of the prosecution to prove beyond reasonable doubt that the caution interview was properly and fairly recorded. However, the questions asked by the learned counsel for the accused are not evidence. Hence, there is no evidence from the defence that the accused was coerced and forced to answer by the interviewing officer.

10. Having considered the evidence given by WDC Asenaca and the manner she gave her evidence, I am of the view that her evidence is true and trustworthy. Hence, I accept her evidence.

11. In my conclusion, I am satisfied that the accused neither coerced nor forced to answer or endorsed his signature by the interviewing officer. I accordingly hold that the caution interview of the accused person is admissible in evidence at the hearing.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
03rd of February 2016

Solicitors : Office of the Director of Public Prosecutions
Office of Legal Aid Commission