IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 46 of 2010

State

v.

Gopal Goundar

BEFORE MR. CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For State : Cpl Subramani 
Accused : Present - Represented by Mr. S Nacolawa

RULING – Voir dire

Introduction

The Accused is charged with Rape, contrary to Section 149 & 150 of the Penal Code, Cap 17.

The defence has challenged the caution interview of the accused and submitted that it was unfairly and involuntarily obtained. 

The Court on 15th and 16th August 2011 held a voir dire to ascertain if the caution interview was voluntarily obtained. 

The Law

The burden of proving that the statements (caution-interview statements and the charge statements) were obtained voluntarily and without oppression is on the prosecution. The burden is also on the prosecution to prove that the statements were obtained without any breaches of the accused’s rights, and if there were any breaches, there was no resulting prejudice to the accused. The standard of proof is that of beyond reasonable doubt. 

In the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, Fiji Court of Appeal stated:

"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 (1914) 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 (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".

The Pricy Council, in the case of Wong Kam-Ming v The Queen (1980) A.C. 247, P.C., observed that:

[t]he basic control over admissibility of statements 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 (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.

The Evidence

The Prosecution called 2 witnesses, the interviewing officer and the witnessing officer to the caution interview.

The accused gave evidence and no other witnesses were called. 

Analysis

The Court noted the deameanour of all the witnesses. The accused told the Court that he is a pastor, educated upto 5th form and that he holds a Diploma in Bible Study. The caution interview of the accused was conducted in English. The accused was given all the rights prescribed by law. The accused also signed the caution interview. 

From the evidence of the accused the Court noted that the accused is well spoken and knowledgeable. The accused conversed well and gave explicit responses to the questions in Court in English. The interviewing officer and the witnessing officer denied the allegations that they used force or threatened the accused. 

The Court found the evidence of the police officers to be consistent, honest and compelling. Each of the witnesses appeared to be taken aback by the suggestion that there were threats made to the accused. In contrast, the Court noted that the accused had the opportunity lodge complains against the officers if he was intimidated and force used against him. The accused did not at any point in time lodge a complaint that the officers used force or intimidated him. 

The Court prefers the prosecution evidence and in so doing finds that the caution interview was clearly, and voluntarily conducted and therefore is admissible in evidence in the trial proper

Chaitanya Lakshman
RESIDENT MAGISTRATE
23rd September 2011