State v Nalawa - Written Reasons for Voire Dire Ruling [2016] FJHC 69; HAC257.2015S (8 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 257 OF 2015S

STATE

vs

ILAITIA NALAWA

Counsels : Ms. S. Puamau, Mr. Y. Prasad and Ms. S. Serukai for State
Mr. P. Tawake and Mr. A. Paka for Accused
Hearings :16, 17 and 18 December, 2015
Ruling : 18 December, 2015
Written Reasons : 8 February, 2016

WRITTEN REASONS FOR VOIRE RULING

1. The accused was charged with " Burglary", contrary to section 312(1) of the Crimes Decree 2009 (count no. 1); "Theft", contrary to section 291(1) of the above Decree; "Assault with intent to commit rape", contrary to section 209 of the above Decree and "Rape", contrary to section 207(1) and (2)(a) of the above Decree.
   
2. It was alleged that on 7 July 2015, at Nasinu in the Central Division, he entered the dwelling house of the first complainant (33 years old) as a trespasser with intent to steal therefrom (count no. 1), and stole $337.95 worth of her properties (count no. 2). On the third count, it was alleged that he assaulted a 9 year old female complainant with intent to rape her on the same day at Nasinu in the Central Division (count no. 3), and later raped her (count no. 4).
   
3. During the police investigation, the police caution interviewed him on 22, 23 and 24 July 2015 at Nausori Police Station. They also formally charged him at Nausori Police Station on 24 July 2015.
   
4. In a "trial within a trial" on 16, 17 and 18 December 2015, the accused challenged the admissibility of the above statements. The police called 9 witnesses and the defence called 2 witnesses. I heard the witnesses. At the end of the "trial within a trial", I ruled the accused's police caution interview and charge statements as admissible evidence, and I said I would give my reasons later. Below are my reasons.
   
5. 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 ...."
   
6. I have carefully considered the evidence of all the prosecutions' and defence's witnesses. I have compared and analyzed all of them. After considering the authority mentioned in paragraph 5 hereof, and after looking at all the facts, I have come to the conclusion that the accused gave his caution interview and charge statements voluntarily and out of his own free will. I therefore rule that the caution interview and charge statements are admissible evidence, and could be used in the trial proper, but its acceptance or otherwise, are matters for the assessors.
   
7. 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..."
   
8. The above were the reasons for my ruling on 18 December 2015.
   

Salesi Temo
JUDGE

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