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

CRIMINAL CASE NO: HAC 441 of 2018

STATE
V
1. ESALA VAKAWALETABUA
2. SEKONAIA QALOBULA 

Counsel		:	Ms. Bhavna Kantharia for the State
				Ms. Lavinia David for the 2nd Accused
Dates of Hearing	: 	15-17 November 2021
Date of Ruling		: 	22 November 2021

VOIR DIRE RULING

[1]	As per the Information filed by the Director of Public Prosecutions (DPP), the 1st accused, Esala Vakawaletabua, together with the 2nd Accused, Sekonaia Qalobula, were charged with the following offences: 
FIRST COUNT
Statement of Offence 
AGGRAVATED BURGLARY: Contrary to Section 313 (1) (a) of the Crimes Act 2009.
Particulars of Offence 
ESALA VAKAWALETABUA and SEKONAIA QALOBULA, on 18th November 2018, at Suva, in the Central Division, in the company of each other, broke and entered into the property of MAFI VAKACEGU, as trespassers, with intent to commit theft. 
SECOND COUNT
Statement of Offence 
THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.
Particulars of Offence 
ESALA VAKAWALETABUA and SEKONAIA QALOBULA, in the company of each other, on 18th November 2018, at Suva, in the Central Division, dishonestly appropriated (stole) 1x HTC mobile phone and 1 x Alcatel Touch mobile phone, the properties of MAFI VAKACEGU and DILA VOSANISIGA DAVETA with intention of permanently depriving them of the said properties.     

[2]	The 1st Accused, Esala Vakawaletabua, pleaded guilty to the two charges and was convicted on his own plea and sentenced by this Court on 11 August 2020. This case now proceeds only against the 2nd Accused, Sekonaia Qalobula (Hereinafter referred to as the Accused).  
[3]	Following his arrest, the Accused was caution interviewed by Detective Constable 3079 James Sukul, at the Crime Office, Totogo Police Station, on 22 November 2018. 
[4]	The State is relying on the caution interview statement made by the Accused. The Accused is challenging the admissibility of the said caution interview statement. 
[5]	In the Grounds for Voir Dire, which he filed in Court, on 24 October 2019, the Accused objects to the admissibility of his caution interview statement, on the following grounds:
1. 	At the time of the Accused’s caution interview, the right to remain        silent as given at Question & Answer 16 was unfair that it induced/threatened the Accused to admit to the offence if not then police would proceed further and prosecute him.

2.	That there was a breach of his rights under the Constitution Section 13 and the Judge’s Rules during his interview by the Police.

	The Accused has also requested for the State to furnish him with a copy of the Central Police Station diary and the Cell Book from 21 November 2018 to 23 November 2018 or when the Accused was at the Central Police Station until the date he was released.

[6]  	The Question and Answer No. 16 of the caution interview statement, which is the subject of contention, is reproduced below:

Q16:  	Mr. Sekonaia I also wish to advise you that should you wish to exercise your right to remain silent then I may not know your side of the story and as such may have to proceed against you with the evidence that the Police has or may have on hand against you. Do you understand that?

A:	Yes

The Law
[7]	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."
[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]	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, such confession would not be admissible and should be excluded. Oppression is anything that undermines or weakens the exercise of free will. However, even if such voluntariness is established, the trial Judge has the discretion of ruling such confession inadmissible, if it is obtained in an unfair manner (on general grounds of unfairness).
[10]	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.  
[11]	Section 13 of the 2013 Constitution (Constitution) sets out the rights of arrested and detained persons. Section 13 (1) (a) and (b) of the Constitution provides that:
	“(1) Every person who is arrested or detained has the right—
(a) to be informed promptly, in a language that he or she understands, of—
(i) the reason for the arrest or detention and the nature of any charge that may be brought against that person;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent.
(b) to remain silent” 
[12]	In terms of Section 13 (2) of the Constitution it is stated “Whenever this section requires information to be given to a person, that information must be given simply and clearly in a language that the person understands.”
[13]	Furthermore, Section 13 (1) (d) of the Constitution stipulates that “Every person who is arrested or detained has the right not to be compelled to make any confession or admission that could be used in evidence against that person.”
[14] 	In this case, the objection taken up by the defence is that at the time of the recording of the caution interview statement the Accused was not properly explained of his right to remain silent and had instead been informed that there may be consequences if he remained silent. The consequences being that should he exercise his right to remain silent then the Police may not know his side of the story and as such may have to proceed against him with the evidence that the Police has or may have in hand against him. 
[15]	Pursuant to hearing of legal submissions from the prosecution and the defence in a similar matter [HAC 343 of 2018], on 26 March 2020, this Court ruled that it does not deem it appropriate to exclude the caution interview statement made by the Accused as inadmissible prior to hearing of the evidence in that matter. Accordingly, a Voir Dire Inquiry was held to determine the admissibility of the said caution interview statement in the said matter. 
[16]	Similarly, a Voir Dire Inquiry was held in to determine the admissibility of the caution interview statement made by the Accused in this case.
[17]	During the said voir dire hearing the prosecution led the evidence of Detective Constable 3079 James Sukul (the Caution Interviewing Officer). The caution interview statement of the Accused was tendered to Court as Prosecution Voir Dire Exhibit P1.
[18]	The Accused exercised his right to remain silent.
The Prosecution Case
[19]	Detective Constable 3079 James Sukul testified that he is currently serving at Police Headquarters, at Centre Point. He has served the Fiji Police Force for a period of 18 years. In the year 2018 he was based in the Totogo Police Station. The witness said that he had been transferred to Police Headquarters barely a month ago. Otherwise, he has been based at Totogo Police Station throughout his career-16 years in the CID and 2 years in the uniform branch.
[20]	The witness testified that on 22 November 2018 he had received instructions to record the caution interview statement of Sekonaia Qalobula, the Accused in this case. The recording of the interview had commenced at 13:40 hours and concluded at 15:55 hours on the same day. The said interview had been conducted at the Crime Office of the Totogo Police Station. The Accused’s wife, Vetinia Digia, had also been present during the recording of the interview. 
[21]	The witness said that the Accused and his wife were already present in the Crime Office when he walked in to conduct the interview. He was unaware as to how or when the Accused’s wife arrived in the Crime office.
[22]	The witness testified that the recording of the interview was conducted on a computer in the English language. The Accused had agreed to the conducting of the interview in the English language. 
[23]	A total of 67 Questions had been asked from the Accused during the course of the interview. The officer testified that the Accused, his wife and himself signed the record of interview at the end of the recording. At the conclusion of the recording, the record of interview was printed out and signatures placed thereon. The witness said the first signature on the interview is of the Accused, the signature in the middle is of the Accused’s wife and his signature is on the far right. He confirmed that throughout the caution interview the signatures were placed in the same order. The caution interview statement of the Accused was tendered to Court as Voir Dire Exhibit P1.
[24]	DC James further testified that the Accused was given all his constitutional rights under Section 13 of the Constitution and that he understood the said rights (Question & Answer 3). The witness said that the Accused had not wanted to exercise any of the rights explained to him. He had said as follows: “No it’s okay. I’ve been visited by the Legal Aid Lawyer and my wife Vetinia is present here with me.” (Question & Answer 5).
[25]	The witness testified that during the recording of the interview the allegations against him were put to him and that the Accused was cautioned in the following manner: “You are not obliged to say anything unless you wish to do so, but what you say may be taken down in writing and will be given in evidence.” He said the Accused understood the allegations against him and the caution put to him (Question & Answer 14). The witness also confirmed that the Accused signed so as to certify that he understood the allegations and the caution put to him (Question & Answer 15).
[26]	In addition to the above the witness said that he had advised the Accused in the following manner at Question 16: “Mr. Sekonaia I also wish to advise you that should you wish to exercise your right to remain silent then I may not know your side of the story and as such may have to proceed against you with the evidence that the Police has or may have on hand against you. Do you understand that?”  The Accused had answered this question in the affirmative.
[27]	When asked as to what the Accused’s reaction was to this question the witness said: “He acknowledged that he understood and answered voluntarily and voluntarily signed when he was asked to sign.” 
[28]	DC James testified that the answers to all the questions were given voluntarily by the Accused and on his own free will without any force or threats whatsoever.
[29]	DC James identified the Accused in the dock as Sekonaia Qalobula and the person whose caution interview he had recorded on 22 November 2018.
[30]	The witness was cross-examined at length by the Counsel for the Defence and several suggestions were put to the witness. 
[31]	The crux of the cross-examination was that the Accused’s right to remain silent as given in Question 16 was unfair and that it had induced the Accused to admit to the offence. It was suggested to the witness that there was a breach of the Accused’s rights under Section 13 of the Constitution and the Judge’s Rules during the recording of the interview.

[32]	It was further suggested to the witness that the Accused’s rights have been breached by questioning him in the English language and by the absence of a Witnessing Officer during the recording of the interview. The defence position was that the Accused’s wife does not qualify as a Witnessing Officer.

[33]	It was also suggested that Questions 50 and 52 were unfair questions and it prejudiced the rights of the Accused.
[34]	A copy of the Totogo Police Station Diary from 21 November 2018 to 23 November 2018 was tendered to Court by the consent of both parties as Exhibit X1. Therein it is recorded that the Accused had been brought into the Police Station at 01:40 hours by DC 5298 Peni (Station Diary Entry No. 5 for 22 November 2018). Thereafter, there is an entry that the Accused had been searched and locked at 02:53 hours (Station Diary Entry No. 9 for 22 November 2018).

[35]	The next entry relating to the Accused is Entry No. 73, where it is noted that the Accused had been released from the cell and handed over to DC Peni at 10:20 hours, that day. The next entry relating to the Accused is Entry No. 171, where it is noted that DC Robert had brought the Accused and the accomplice to be re-locked in the cell. This entry is at 17:10 hours, the same day. 

[36]	There are no Station Diary entries to depict as to when the Accused was taken for the recording of his caution interview statement or as to when the recording of the interview commenced. Furthermore, there is no mention in the Station Diary as to when the Accused’s wife arrived at the Totogo Police Station.
Analysis
[37]	In this case the Prosecution has led the evidence of DC James Sukul, the Caution Interviewing Officer, to establish that the Accused gave his caution interview statement voluntarily and fairly.
[38]	Having heard the testimony of the above two Police witness I am satisfied that the caution interview statement was given by the Accused voluntarily.
[39]	In the voir dire grounds filed by the Accused there is no mention that he is challenging the voluntariness of the caution interview statement. The objection taken up by the defence is that at the time of the caution interview the Accused was not properly explained of his right to remain silent and had been informed that there were consequences to remaining silent.  
[40]	During the recording of the caution interview, the usual cautionary words ““You are not obliged to say anything unless you wish to do so, but what you say may be taken down in writing and will be given in evidence.”, have been put to the Accused (After Question and Answer 14). This would have been adequate to explain to the Accused that he has the right to remain silent [You are not obliged to say anything unless you wish to do so], and that there are consequences of not remaining silent [But what you say may be taken down in writing and given in evidence].
[41]	However, in this case, in addition to the above cautionary words being put to the Accused, the Caution Interviewing Officer has gone on to further explain to the Accused his rights in the following manner at Question 16: “Mr. Sekonaia I also wish to advise you that should you wish to exercise your right to remain silent then I may not know your side of the story and as such may have to proceed against you with the evidence that the Police has or may have on hand against you. Do you understand that?”  The Accused had answered this question in the affirmative.
[42]	In State v. Fusi [2018] FJHC 1083; HAC223.2017 (15 November 2018); His Lordship Justice Rajasinghe held:
“9.  DC Isoa in his evidence admitted that he put the question number nine to the accused as in the same form as it has been recorded in the caution interview. He then explained the reason for putting that question. I will now reproduce the said question nine and the answer in verbatim as it was recorded in the caution interview, that:
Q: Under the provisions of the constitution you have a right to remain silent but in that case we would not be able to get your side of the story and as such we may have to proceed further and prosecute you for the allegation with the evidence currently on hand. You shall feel free to make your choice now, are you willing to remain silent or will you make a statement now? 
A: I will make a statement.
10.	Having carefully considered the above questions, it is clear that the interviewing officer has not explained the accused the consequent of not remaining silent. Instead, he has told the accused that if he exercises his right to remain silent, he won’t be able to tell his side of the story, and that would allow the Police to continue to prosecute him with the available evidence. This has created a condition that unless the accused made a statement, the police would prosecute him. 

11.	Accordingly, I am of the view that this question has compelled or rather forced the accused to make a statement. The accused was not properly explained of his right to remain silent. Hence, he was not in a position to make an informed decision about his right to remain silent. Therefore, it has created a reasonable doubt whether the accused made his statement in the caution interview voluntarily. Moreover, the failure of the interviewing officer to properly explain the accused his right to remain silent and the consequences of remain silent as required under Section 13 (1) (a) (ii) and (b) of the Constitution has created a reasonable doubt whether the caution interview was conducted under a fair and just circumstances. 

12.	Accordingly, I find that the prosecution has failed to prove beyond reasonable doubt that the accused voluntarily gave his statement in the caution interview and it was recorded under fair and just circumstances. 

13.	In conclusion, I hold that the record of the caution interview of the accused is not admissible in evidence at the trial.”

[43]	His Lordship Justice Rajasinghe in State v. Ravutanasau & Another [2019] FJHC 1100; HAC377.2017 (31 October 2019); arrived at a similar finding.
[44] 	In State v Ratu Sela Dradra Matia [2019] FJHC 188; HAC260.2018 (13 March 2019); His Lordship Justice Goundar held that the right to remain silent as provided in the 2013 Constitution is not subject to any qualification. In the said judgment Goundar J stated:
	“[6] Section 13 (1) of the Constitution states that every person who is arrested or detained has the right to remain silent and that the right must be administered promptly, in a language that the accused understands. In Fiji the constitutional right to remain silent must be administered in unqualified terms. Otherwise, the right will become a dead letter. In the present case, the right to remain silent was qualified by an incentive to tell his side of the story to avoid being charged based on the allegation. The qualifications placed on the right to remain silent are inappropriate and objectionable. The qualifications were placed by an experienced police officer without any justification. The qualifications breached the accused’s constitutional right against self-incrimination. For these reasons, the admissions are disregarded and given no weight.”
[45] 	In State v Nabukavou [2020] FJHC 230; HAC343.2018 (26 March 2020); this Court held: “In my opinion, what would be most objectionable is the fact during the Officer who recorded the caution interview statement stating that there are consequences of remaining silent. In law there are no consequences of remaining silent. This is a constitutional right guaranteed under Section 13 (1) (a) (ii) of the Constitution.”
[46]	Considering all the evidence led in this case on behalf of the Prosecution in its totality, I am of the opinion that at the time of the recording of the Accused’s caution interview statement, the rights as explained to the Accused at Question 16 would have caused much prejudice to the Accused and thereby led to the caution interview statement being recorded in an unfair manner.  
 [47]	In the circumstances I hold that the caution interview statement of the Accused (Prosecution Voir Dire Exhibit P1) is not admissible in evidence. 

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 22nd Day of November 2021

Solicitors for the State	: 	Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused	: 	Office of the Legal Aid Commission, Suva.