State v Tuidraki [2012] FJMC 221; Criminal Case 567.2012 (17 September 2012)

IN THE RESIDENT MAGISTRATES COURTOF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 567/2010

STATE

vs.

1. ISEI TUIDRAKI
2. VANUELI NAWAISALA

Sgt.Naidu for prosecution.
Accused in person

RULING [voir dire]

INTRODUCTION

[1] The prosecution is to adduce into evidence at the trial proper, one interview conducted under caution with accused on the 12 June. The interview contains admissions to the charge of theft allegedly committed on 19 May 2010 wherein the accused has said that he stole a pair of bullocks.

[2] The prosecution did not inform to court that they will rely on the charge statement.

[3] The accused objects to the admissibility of the caution interview on the ground of assault and threat before and during the interview.

THE LAW

[4] The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R.1983 (unreported) outlined the two -part test for the exclusion of confessions at p.8.and this case has been cited by Judge Paul K. Madigan in State V Atik [2010] FJHC; HAC 045.2009(7 June 2010)

"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 (sic) 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 – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914) A.C. 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. (R v Sanag (1980) A.C.402, 436CE. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account."

[5] The matter is for court to decide therefore whether this interview was conducted freely and not as a result of threats, assaults, promise or inducements made to the accused by a person or persons in authority, the police. If the court found that there has been threat, promise, inducement or unfairness, then the court can in its discretion exclude the interview. If the accused's common law rights found to have been breached, then that will lead to exclusion of the confessions obtained from him, unless the prosecution can show that the accused was not thereby prejudiced. These rights include the right to (i) to have legal representative of his choice and (ii) to have access to family or next of kin.

[6] The burden of proving voluntariness, fairness and lack of prejudice to the accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling this court has reminded itself of that.

EVIDENCE OF PROSECUTION

[7] At preliminary inquiry, only one witness namely D/C Timoci gave evidence for the prosecution.

[8] DC Timoci (PW1) stated he was the officer who interviewed the accused on the 12th of June 2010. He did not have knowledge of any assault, threat, inducement or promise used by him to the accused during the interview and he gave all his rights including his right to counsel. He further stated that the accused did not make any complaint during the interview. He also stated that there was no witnessing officer present during the course of the interview.

[9] The accused cross examined PW1. During the Cross Examination PW1 stated that he arrested the accused on 12th June 2010 but denied that he arrested the accused on 9th May 2010. He denied assaulting or putting chilie on the body of the accused. He also stated that he interviewed the accused in the station but denied the suggestion that the accused was interviewed at the sugar cane field. He also denied that the suggestion that the accused did not make any statement and that he incorporated the second accused's statement into the 1st accused's caution interview.

[10] In Re-Examination PW1 stated that he didn't threaten the first accused. He also stated that Sgt. Seruvi was not present during the interview.

EVIDENCE OF ACCUSED:

[11] The 1st accused gave sworn evidence on his behalf and call one witness namely Vishva Deap Karon (DW2) to give evidence for him.
[11] The 1st accused gave sworn evidence for the limited purpose of voir dire enquiry. A summary of evidence of the first accused is as follows:-

"Police officers assaulted me. They did not follow the procedure. I am the bad guy that's why they picked me. They put chilies all over my body. PC Seruvi and Saiyasi assaulted me. The complainant saw what they did on that day. When get released from prison I will take action against them.

I was in hospital for one day. I have a Medical Report. I can tender it. [Accused tendered M/R issued to him as D/Ex-1]".

[12] Under Cross Examination first accused told that he complained of the police assault but they did not take any action while he was in custody. He also told that police officer did not want to take him to hospital. He said 'no, interviewing officer told lie' to the suggestion that he is lying in court. He further told that he was interviewed at Sugar cane Station.

[13] In Re-Examination he stated that he was assaulted before and during the caution interview and they arrested the co-accused first.

[14] DW2 gave evidence in support of the accused. He in Examination in Chief stated that: On 17th June 2010 the first accused asked him to take him to hospital. He asked what had happened. Then the accused told him that he was taken to Sugar cane field and they put chili in his bottom. DW2 also stated that he noticed bruises over the body of the accused and marks on the wrist. He further stated that he did not know why he was taken to police station and The Medical Report issued to the accused was under his docket.

[15] He under Cross Examination stated that the first accused worked for him as a driver. He also stated that he did not see police officers assaulting the accused and the accused told him about the police assault.

DETERMINATION

[16] PW1 stated in evidence that the accused made the confession and the statements were recorded voluntarily and no force or threat used to get these statements from the accused. PW1 confirmed that he gave the accused all his rights before recording the statements but he opted not to exercise any of his rights. He told that they did not receive any complaint of assault, threat or force from the accused. PW1 also told that he did not have any knowledge of the accused complaining of the assault, threat or force to any other police officers or police complaint unit.

[17] Under cross examination PW1 denied that the accused was assaulted and threatened during the record of interview and the charge statement.

[18] The accused maintained that he was assaulted and threatened during the caution interview. He said that police officers assaulted him and put chili on his body. He had reported this to police but no action was taken. The accused was able to name the police officers who assaulted him. He was released on bail on 16th June 2010. He was medically examined on 17th June 2010.

[19] The Medical Report issued to the accused was marked and tendered in evidence as D/Ex-1. According to the Medical Report the victim had laceration on both wrests with other mark or injuries. In the Medical Report the doctor has noted the brief circumstances of the incident according to the patient as follow:-

"He was assaulted by RSU personnel and CID personnel sometimes last Friday".

[20] In that Medical Report (D/EX-1) the doctor has opined that injuries on wrist most likely due to contact of blunt object like handcuffs.

[21] The accused after he was released on bail, told to DW2 that he was assaulted by police while in custody. DW2 confirmed this to court and stated that he took the accused to hospital and he had the Medical Report of the accused in his docket.

[22] PW1 stated that there was no witnessing officer present during the caution interview. The record of the caution interview contains no signature of the witnessing officer. PW1's evidence was not supported by a witnessing officer or any other police officer. The prosecution relies solely on PW1's evidence to prove voluntariness of the statement of the accused.

[22] The the accused has been consistent in his evidence. His evidence was confirmed by DW2. I therefore accept the evidence adduced by the accused that the caution interview contains no voluntary statements.

[22] In the circumstances, the court holds that the prosecution has not proven beyond reasonable doubt that the accused's caution interview of 12th June 2010 was given voluntarily and of his free will, and without threat or inducement, and therefore I must rule the caution interview of the accused is inadmissible in evidence in this trial.

...............................
M H Mohamed Ajmeer
Resident Magistrate

17th day of September, 2012
At Nadi.