State v Kalpa [2013] FJMC 183; Criminal Case 166.2010 (6 May 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 166 /2010

STATE

V

RONALD RAJESH KALPA

For Prosecution : Sgt. Lenitasi
Accused : Mr. Tawake from the Legal Aid

Date of Hearing : 30 April 2013
Date of Ruling : 06 May 2013

RULING ON VOIR DIRE

[1] The accused is charged with one count of Burglary contrary to section 312 (1) of the Crimes Decree and one count of Theft contrary to section 291(1) of the Crimes Decree.

[2] The prosecution wanted to tender the confession made by the accused to PC Umlesh Raj. The defence objected to that.

[3] The defence alleged that PC Umlesh, the interviewing officer assaulted the accused whilst recording the statement and because of that the accused admitted the offence.

[4] A voir dire hearing was started on 30 April 2013 and the prosecution called PC Umlesh as a witness. The accused gave sworn evidence.

SUMMARAY OF EVIDENCE

[5] Only witness called by the prosecution was PC Umlesh who conducted the interview of the accused. He said the interview was conducted in Navua police station and there were no other officers when he interviewed the accused. In cross examination PC Umlesh said as there were no other officers available he conducted the interview alone and interview was conducted in English. The witness also denied assaulting the accused whilst conducting the interview. He also denied it was done in Police Bure and said all the rights were given and it was done in a fair manner. The prosecution did not call any other witnesses.

[6] The accused in his evidence said PC Umlesh is his uncle and the interview was conducted in Bure. The accused further stated that he admitted the offence because PC Umlesh assaulted him in his chest and face. After he was given bail the accused went to the hospital and his medical report was tendered as Defence EX-01.

[7] In cross examination the accused admitted that he did not lodge any complaint about the assault nor informed the magistrate when he was produced to the Court. The accused also said he could not remember when he went to see a doctor. The defence also did not call any other witnesses and closed their case.

THE LAW

[8] 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 [1979] UKHL 3; (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".

[9] Therefore the prosecution needs to prove that the statement was obtained voluntarily and without oppression. Also the prosecution needs 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 imposed on the prosecution is beyond reasonable doubt.

ANALYSIS OF THE EVIDENCE

[10] PC Umlesh, the office who conducted the interview was confident giving evidence in the Court and denied assaulting the accused. On the other hand the accused was not confident even in his evidence in chief.

[11] Also I find the accused's version is not probable. He did not lodge any complaint about the assault. Even when he was produced before a magistrate he did not complain about this assault.

[12] The accused was granted bail by the Court on 11 May 2010 and the accused said he could not remember the date when he went to see a doctor. But from the medical report I note he was examined only 24 May 2010, nearly 13 days after the bail. No valid explanation was given for this delay again making the defence's case weak.

[13] PC Umlesh has also given a satisfactory explanation for conducting the interview alone and doing that in English and the Court is satisfied about that.

[14] Based on above mentioned reasons I conclude that the prosecution has proved beyond reasonable doubt that the accused gave the statement voluntarily and there was no assault during the interview.

[15] Therefore I rule that the accused's confession is admissible as an evidence for the prosecution's case.

H.S.P.Somaratne
Resident Magistrate, Navua