IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 15 OF 2014

BETWEEN :

STATE

AND :

KINIJOJI VUDA
ILAISA TULELE TOKALAUVERE
MALAKAI KOTOBALAVU
SIRELI LILO

Counsel : Mr. Niudamu for State
First Accused is absent, 
Ms S. Nasedra for the Second Accused 
Mr. R. Vananalagi for the Third Accused
Fourth Accused in person

Date of Hearing : 9th, 10th, and 11th of February 2016
Date of Ruling : 12th of February 2016

RULING

1.	The Prosecution proposes to give in evidence the caution interviews of the four accused persons. The first accused has failed to surrender to the hearing, hence the court ordered a trial in absentia against the first accused. The remaining three accused persons objected the admissibility of their respective caution interviews in evidence. The objections of the accused persons are mainly founded on the ground that they were assaulted, oppressed and forced to make confession during the recording of their caution interviews. Second accused person further alleged that he was assaulted at the time of his arrest by the police officers.

2.	Accordingly, a voir dire hearing was conducted on 9th, 10th and 11th of February 2016. The prosecution called fourteen witnesses. It includes the officers who involved in arresting of the four accused persons and the officers who conducted the respective caution interviews of the four accused persons. Subsequent to the prosecution case, the second, third and fourth accused persons gave evidence. The mother of the second accused and the doctor who conducted the medical examinations of the four accused persons on 3rd of February 2014 also gave evidence for the defence. At the conclusion of the hearing, I invited the respective parties to file their written submissions, which they filed accordingly. Having carefully considered the evidence presented during the hearing and respective submissions of the parties, I now proceed to pronounce my ruling as follows. 

3.	The prosecution presented evidence that the four accused persons were arrested on four separate occasions without any form of violence inflicting on them. Apart from the first and third accused persons, other two had no visible injuries at the time of their arrest. The first accused had a swollen lips and the third accused had an injury on his left eye. The witnesses of the prosecution who involved in the arresting of the suspects specifically stated in their evidence that the accused persons looked normal and fit. The interviewing officers and the witnessing officers of the respective caution interviews of the four accused persons stated in their evidence that the accused were treated fairly. They have given all their rights prior to and during the caution interviews. There was no force, intimidation, threat, or promise made to the accused in order to get their statements. 

4.	In contrast, the three accused persons in their evidence stated that they were assaulted, forced and oppressed by the respective interviewing officers and witnessing officers during the recording of their respective caution interviews. They alleged that their answers in the caution interviews were not given voluntarily. The mother of the second accused person stated in her evidence that she saw the injuries on her son when he was produced at the magistrate court in Tavua. Doctor Anaseini Maisema in her evidence explained the medical findings that she found on the four accused persons, when she examined them on the 3rd of February 2014. She went further and stated that the injuries that she observed on the accused persons may have resulted from a blunt object. 

5.	Having briefly outlined the prosecution and the defence case, I now draw my attention to the applicable law on the issue of admissibility of the confession of the accused person in evidence. 

6.	The scope of the hearing of voir dire is extended only to the admissibility of the confessionary statement of the accused in evidence. The probative value of it still remains for the assessors during the trial proper. (G vs UK ( 9370/81, 35 DR 75). 

7.	Lord Carswell in R v Mushtaq ( 2005) 3 All ER 885, at 908 held that; 

"It has long been recognised that the content of a confession made by an accused person has to be evaluated with great care in order to determine whether it can safely be accepted as an admission against his interest. The approach of the law to that evaluation has varied over the years and the rules applied by the courts have to be kept under review to ensure that they reflect the standards accepted by each generation". 

8.	Accordingly, it appears that the court is required to adopt a cautionary approach in order to admit the confession of an accused in evidence. Justice Gounder in State v Akanisi Panapasa ( Criminal Case No 34 of 2009) has outlined the general rule on admissibility of confession, where his lordship found that;

"As a matter of general rule, a confession made by an accused person to a person in authority out of court is admissible only if the confession was made voluntarily. The rule which was developed by the English common law is the state of law in Fiji". 

9.	Lord Griffiths in Lam Chi-Ming and others v R ( 1991) 3 All ER 172) having discussed the recent developments in English cases found three main objectives for the rejection of an improperly obtained confession. His Lordship held that;

"Their lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviours by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary". 

10.	Accordingly, it appears that the principle of rejection of an improperly obtained confession is founded on three main grounds, 

i.	Unreliability of the confession, 
ii.	Rights against self-incrimination, 
iii.	To prevent undesirable police conduct on the person in their custody. 

11.	Having understood the principle of rejection of improperly obtained confession, I now turn onto the issues of test of voluntariness. 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 controls 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 Summer in Ibrahim v R (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."

12.	The Fiji Court of Appeal in Shiu Charan v R (F.C.A. Crim. App. 46/83) has discussed the applicable test to determine the voluntariness of caution interview, 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 (1980) AC 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).

13.	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.

14.	Section 13 and 14 of the Constitution have recognised and endorsed the main three objectives of the principle of rejection of an improperly obtained confession in evidence. Particularly, Section 13 (d) of the Constitution has specifically recognised the right against self-incrimination, where it states that;

 "Not to be compelled to make any confession or admission that could be used in evidence against that person". 

15.	Section 14 ( k) of the Constitution states that; 

"Not to have unlawfully obtained evidence adduced against him or her unless the interest of justice requires it to be admitted". 

16.	The court is required to consider all the existing circumstances including the conduct of the parties in order to determine whether such circumstances and conduct has oppressively and unfairly affected the free will of the accused person in making his confession. 

17.	It is the burden on the prosecution to prove beyond reasonable doubt that the confession in the caution interview was made voluntarily and without the existence of any form of general unfairness (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996). This burden on the prosecution remains throughout the hearing.

18.	I now turn onto this instant case, where the four accused challenge the admissibility of their respective caution interviews on the ground of oppression. 

19.	Edmund Davies LJ in R v Prager ( 1972) 1 ALL ER 1114 has discussed the definition of " oppression", where his Lordship held that;

In an address to the Bentham Club in 1968d, Lord MacDermott described 'oppressive questioning' as—

'questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent.'

20.	The four accused persons allege that they were assaulted by the police officers during the recording of their respective caution interviews. The prosecution presented evidence to establish that the four accused were given their rights and treated fairly during the recording of their respective caution interviews. According to the witnesses of the prosecution, the four accused had no visible injuries apart from the first and third accused persons. The first accused had a swollen lip and the third accused had an injury on his left eye. They all appeared well and fit prior to and during the recording of their caution interviews. 

21.	However, the defence tendered the medical reports of the four accused persons to establish that they were assaulted and tortured by the police during the recording of their respective caution interviews. They alleged that they sustained injuries due to the assault and torture by the police. 

22.	Dr. Anaseini while tendering the medical report of the first accused explained the special medical findings she found on the first accused. She has found that the first accused had a tender left cheek and also a small abscess on his upper lips. Furthermore, he had tenderness on his left side chest but no bruises noted. His abdominal wall was soft but tender to touch. She stated that her professional opinion is that the injuries would have resulted from an impact of a blunt object. 

23.	In respect of the second accused, Dr. Anaseini stated in her evidence that she found three markings of a rod on his back. He had a painful left knee and tender sacral region. She stated in her evidence that the injuries would have resulted from an impact of a blunt object. 

24.	Dr. Anaseini found that the third accused was limping while he came for the medical examination. She has found that the third accused had a 1cm laceration and tenderness on his occiput region. Further, he had a contusion on his left eye. It was a haemorrhage eye. His right chest wall was swollen. It was a mild swelling with tenderness. He also had back tenderness at his lumber region. Her professional opinion is that those injuries would have resulted from an impact of a blunt object. 

25.	Dr. Anaseni stated in her evidence that she found an abrasion mark on the wrist of the fourth accused and it appeared as mark of handcuff. He had pain on the scapula region. He also had tender chest with slight redness. Her professional opinion on those injuries was that the injuries would have resulted from a impact of a blunt object. 

26.	The prosecution and the defence agreed that the four accused persons were taken to the medical examination soon after they were produced in the Magistrate court. They were in the police custody before they were produced in the court. 

27.	In view of the evidence presented by the defence, there is a reasonable doubt that whether the four accused person sustained those injuries due to the alleged assault and torture by the police as they claimed. The prosecution in their evidence stated that the four accused had no visible injuries when they were arrested apart from the first and third accused person. In view of the medical reports, the first and the third accused persons also had more injuries than of the injuries they had at the time of their arrest as claimed by the prosecution. The prosecution has failed to provide evidence to negate the doubt created by the defence. 

28.	In view of the reasons discussed above, it is my opinion that the prosecution has failed to prove beyond reasonable doubt that the confessionary statements made by the four accused persons in their respective caution interviews were made voluntarily and without the existence of any unfair circumstance which likely to render it unreliable. I accordingly hold that the four caution interviews of the four accused person are inadmissible in evidence. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
12th of February 2016

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