IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 69 of 2016

STATE
V
SHAHISTA SHEWANI DEVI

Counsel		:	Mr. S. Shah with Mr. Z. Zunaid for the State
				Mr. A. K. Singh for the Accused

Dates of Hearing	: 	5-6 September and 11-12 September 2017
Date of Ruling		: 	13 September 2017

VOIR DIRE RULING

1.	The Accused in this case was charged with the following Information:

FIRST COUNT
Statement of Offence
CRIMINAL INTIMIDATION: Contrary to Section 375 (1), (a)(i) and (iv) of the Crimes Decree, 2009. 

Particulars of Offence
SHAHISTA SHEWANI DEVI on the 2nd of February, 2016 at Nasinu in the Central Division, without lawful excuse, threatened MANDUR LATA with a knife with intent to cause alarm to the said MANDUR LATA.

SECOND COUNT
Statement of Offence
ATTEMPTED MURDER: Contrary to Section 44 (1) and Section 237 of the Crimes Decree, 2009.

Particulars of Offence
SHAHISTA SHEWANI DEVI on the 2nd of February, 2016 at Nasinu in the Central Division, attempted to murder DIVYAN DAKSH PRASAD.

2.	The above mentioned Mandur Lata is said to be the mother-in-law of the Accused, while Divyan Daksh Prasad, is her 4 year old son.

3.	The investigations into this case had been conducted by the Nakasi Police Station.  

4.	The Accused is alleged to have been caution interviewed by Detective Corporal (DC) 3541 Isikeli Rokodreu at the Nakasi Police Station, on 2 and 3 February 2016. WDC 3483 Ana Likulagi, is said to have been present as the witnessing officer.

5.	The Accused is challenging the admissibility of the said caution interview statement. In her Grounds of Voir Dire, which she filed in Court on 15 of June 2017, pursuant to Section 288 of the Criminal Procedure Act No. 43 of 2009, she states the following:
The Accused intends to challenge the admissibility of the Caution Interview on the grounds that it was held unfairly, under duress, threats, fabrication, undue pressure and/or influence, and in breach of her Constitutional Rights.  Full particulars of the above grounds are stated in the paragraphs appearing hereinafter.

A)	That the Accused person was threatened during her interview.
B)	Her confession was fabricated and without giving her right to read before signing it.
C)	Her rights under the Constitution were breached. 

6.	In Ganga Ram and Shiu Charan v. Reginam; Criminal Appeal No. 46 of 1983 (13 July 1984) (unreported) the Fiji Court of Appeal outlined the two grounds to be considered for admissibility of confessions;

“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 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. Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also a 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 will, by trickery or by unfair treatment. Regina v. Sang (1980) AC 402. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

7.	Accordingly, in order for a confession made by an accused person to a police officer to be admissible as evidence against the maker of that confession, the confession should have been made by that accused voluntarily, meaning it should have been made by the accused on his own free will, with full appreciation of the legal consequences.  If the said confession is made as a result of oppression or if it is obtained in an unfair manner, such confession would not be admissible and should be excluded. Oppression is anything that undermines or weakens the exercise of free will.

8.	His Lordship, Justice Daniel Goundar in the case of the State vs. Maikeli Rawaqa and Segran Murti Criminal Case No. HAC 42 of 2004 (16 February 2008); held as follows: 
“The principal governing the admissibility of confessions are well settled.  Confessions could not properly be given in evidence unless it was shown that they were made voluntarily, that is, not obtained through violence, fear of prejudice, oppression, threats and promises or other improper inducements  (Ibrahim v R [1914] AC 599).  Even if such voluntariness is established, the trial Judge has the discretion to exclude the confessions on a general ground of unfairness (R v Sang [1980] AC 402).  In addition, confessions could be excluded for breaches of Constitutional rights.”

9.	The onus of proving voluntariness/lack of oppression and fairness, is on the prosecution and they must prove these matters beyond reasonable doubt.  If there has been a breach of any of the Accused’s Constitutional rights, the prosecution must prove that the Accused was not thereby prejudiced.  

10.	During the voir dire hearing the prosecution led the evidence of two witnesses, namely DC 3541 Isikeli Rokodreu, and WDC 3483 Ana Likulagi, in order to prove beyond a reasonable doubt that the caution interview statement was made voluntarily by the accused and that it was not obtained in an unfair manner. 

11.	DC 3541 Isikeli was the caution interviewing officer in this case. He is currently attached to the Criminal Investigation Department of the Nakasi Police Station. He testified that he had been instructed by the Crimes Officer to be the investigating officer in this case and to caution interview the Accused. The recording of the caution interview had commenced at 17.40 hours on 2 February 2016 and had been suspended at 18.30 hours for the day.  The recording of the interview had recommenced at 11.45 hours on 3 February 2016 and concluded at 15.09 hours on that day. The caution interview had been conducted inside the Crime Officer’s room at the Nakasi Police Station. He submitted that the witnessing officer was WDC 3483 Ana Likulagi.   

12.	The caution interview was conducted in the English language. The Accused had signed to acknowledge that she wished to be interviewed in the English language. At the commencement of the caution interview the accused had been informed that the interview will be conducted by the use of a personal computer and that she will be given the chance to read after the interview. The accused had not indicated any objection to this mode of recording of the caution interview.

13.	The original caution interview statement made in the English language was marked as Prosecution Voir Dire Exhibit 1.  

14.	DC Isikeli further testified that the Accused was afforded all her rights in terms of the Constitution and did not have any complaints to make at the time. She was given the opportunity to consult a lawyer of her choice or the Legal Aid Commission or for any religious member or family member to be present whilst she was being interviewed. The Accused had signed to acknowledge that she understood her rights.  

15.	The witness testified that before, during or after the caution interview statement, no threat, intimidation or coercion was made to the Accused to make the statement.

16.	In cross examination, it was suggested to the witness that the caution interview statement was recorded only on 3 February 2016, and not on 2 and 3 February as stated by him. It was also suggested that WDC 3483 Ana was not present during the time the caution interview statement was recorded. It was further suggested that the statement was not read back to the Accused before she signed it and that the statement was only signed by the Accused at 9.00 a.m. on 4 February 2016. The witness categorically denied these suggestions. He testified that the statement was not read back to the Accused as she was reading the statement while it was being typed.

17.	The Counsel for the Accused made an application for the Station Diary of the Nakasi Police Station for the relevant period (showing entries for the period 2 February – 4 February 2016) to be produced in Court. However, the State informed Court that the said Station Diary cannot be located at the Nakasi Police Station.

18.	During the cross examination the Investigation Diary of DC Isikeli was marked as Defence Voir Dire Exhibit 1.  This document corroborated the evidence of DC Isikeli.  However, the said Investigation Diary does not record the fact that WDC 3483 Ana was present during the time the caution interview statement was recorded.

19.	WDC 3483 Ana Likulagi testified that she was attached to the the Criminal Investigation Department of the Nakasi Police Station during the relevant time. She stated that she was the witnessing officer during the recording of the Accused’s caution interview statement.  She testified that the caution interview statement was recorded on 2 and 3 February 2016, and that she was present throughout the recording of the said statement. 

20.	However, during the cross examination, she stated that on 3 February 2016, she was on night duty and as such had reported for work only at 7.00 p.m. Her shift commenced at 7.00 p.m. on 3 February 2016 and concluded at 7.00 a.m. the next morning (4 February 2016). The State failed to re-examine this witness.

21.	The Accused gave evidence during the voir dire inquiry. She testified that she had been escorted by police officers from her residence to the Nakasi Police Station, on 2 February 2016.  She stated that on the said day she had been interviewed by Social Welfare officers and counseled by Inspector Chetty of the Nakasi Police Station.  However, no statement was recorded from her on that day. Her statement had only been recorded on 3 February 2016. The statement had been recorded by DC Isikeli.  WDC Ana had not been present at any time during the recording of the said statement. She had seen WDC Ana at the Police Station around 9.00 p.m. on 3 February 2016. 

22.	The Accused further testified that DC Isikeli had spoken to her in a frightening tone, which made her feel afraid. DC Isikeli had informed her that she will not be allowed to go home unless her statement was recorded. 

23.	She testified that she was not given an opportunity to read her statement prior to signing.  Her signature had been obtained on the said statement only on 4 February 2016, prior to being taken to the Magistrate’s Court of Nasinu. 

24.	During the voir dire hearing the defence also led the evidence of Manish Priyant Prasad, who is the husband of the Accused.  The said witness has been listed as a witness for the prosecution for the trial proper. He testified that the Accused and he are currently not living together.  He is living with his mother and his three children (It was brought to the notice of Court that there is a DVRO issued by the Magistrate’s Court of Nasinu against the Accused).

25.	This witness corroborated the evidence of the Accused in material particulars. On the instructions of the police, he had gone to the Nakasi Police Station on 2 February 2016, together with his mother and his children, to give a statement regarding the incident. He had been at the Police Station until 7.00 p.m. He confirmed that no statement was recorded from the Accused on 2 February 2016, because the police were waiting for Social Welfare officers to come to the station. 

26.	Manish Prasad further testified that he had gone back to the Police Station on 4 February 2016 around 9.00 a.m., to see the Accused. While at the Police Station he saw a police officer bring some papers and telling the Accused to sign on the said papers and then to meet her husband. The Accused had signed the papers without reading it. Later he had got to know from the Accused that it was her statement that she had signed.

27.	When analyzing the evidence led at this inquiry, it is clear that there are serious contradictions in the evidence of the prosecution witnesses. Although DC Isikeli has testified that WDC Ana was present as the witnessing officer during the recording of the Accused’s caution interview statement on 2 and 3 February 2016, and it is recorded as such in the caution interview statement (Prosecution Voir Dire Exhibit 1), it is clear from WDC Ana’s evidence that she had reported for duty only at 7.00 in the evening on 3 February 2016. As per the prosecution evidence, the recording of the caution interview statement had been concluded at 15.09 hours on that day. Therefore, it was not possible for WDC Ana to be present during the recording of the caution interview on 3 February 2016. 

28.	This gives credibility to the Accused’s position that WDC Ana was not present during the recording of the entirety of her caution interview statement. 

29.	In their written submissions the Counsel for the State has referred to the case of State v. Orisi Roko and Others [2001] FJHC 94 (27 November 2001); that any breaches of the Judge’s Rules, in particular in relation to the failure to have a witnessing officer and the failure to record the time of conclusion, were technical breaches which did not render the interview involuntary, oppressive or unfair. 

30.	However, the facts of the instant case can be clearly distinguished. Where the prosecution takes up the position that a particular witnessing officer was present during the interview, but it is revealed that it is not so or that it is untrue, this seriously discredits the prosecution evidence as a whole. 

31.	The Station Diary of the Nakasi Police Station for the relevant period was not produced by the prosecution. No justifiable explanation has been offered by the State for not producing the said Station Diary. In the opinion of this Court, this further discredits the prosecution case. 

32.	Court is also mindful of the fact that witness Manish Prasad, although the husband of the Accused, is a prosecution witness. His evidence during the inquiry further corroborated the evidence of the Accused in all material particulars. 

33.	As stated before, the onus of proving the voluntariness and fairness of a caution interview statement is on the prosecution and they must prove this beyond reasonable doubt. Taking into consideration all the evidence led at the hearing as a whole, this Court is of the opinion that the prosecution has failed to discharge this burden beyond reasonable doubt.

34.	In the circumstances, I hold that the caution interview statement of the Accused (Prosecution Voir Dire Exhibit 1) is not admissible in evidence.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 13th Day of September 2017

Solicitor for the State	: 	Office of the Director of Public Prosecutions, Suva.
Solicitor for the Accused	: 	Messrs A.K. Singh Law, Nausori.