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Magistrates Court of Fiji |
IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 114/08
BETWEEN:
STATE
AND:
VILIAME SAWAILAU
Prosecution: Mr S. Tuwaqa (DPO/W)
Accused: Ms Tarai (Legal Aid Office)
Hearing: 19th April 2013 and 18th May 2013
Ruling: 31st July 2013
Ruling on Voir Dire
Background
Law
"The test for the admissibility of statements made by an accused to person in authority is whether they were voluntary, obtained without oppression or unfairness or in breach of any Constitutional Rights now Common Law rights. The burden proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the prosecution and all matters must be proved beyond reasonable doubt.
Evidence of threats of violence, if accepted by the court, is sufficient to raise a reasonable doubt as to voluntariness. If what the accused says is true, it would create an oppressive climate of fear."
"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 Pin 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."
Evidence
He was on crime standby when he received report of an allegation of rape from Nukulau village. He went to attend the report with PC Paul and WPC Nandhani. At village met PW4 (Meli Nausuca) visited scene and also arrested accused and brought him to police station. Accused was informed of his rights and he was not assaulted by them. Accused did not complain of any assault. He was taken in police vehicle. Accused wasn't threatened, induced or assaulted accused whilst being escorted to the station.
In cross examination confirms that accused was given his rights. He informed accused of the allegation and that they were taking him to station for questioning and also informed accused of his right to counsel. According to him accused appeared to understand rights given to him and understood what they told him. He was not present during the caution interview. He confirms that his name appears on the caution interview however he was not present and doesn't know why his name is written in the interview. He didn't initial the interview and the person who put his name in the interview is lying. He didn't tell PC Esava to write down rape in the interview. He was not present during the interview.
In re-examination he stated that his not telling lies to court. He was to be present for the interview however he was not present. PC Esava must have put his name down in the interview.
He recalls caution interviewing the accused at CID office Rakiraki Police Station. Accused appeared normal and Constable Hakim was present as witnessing officer. Rights of accused were given. He didn't assault, threaten or intimidate the accused at any time and neither did any police officer do the same whilst accused was in their custody. Accused made no complaints. Shown interview and identifies his signature and signature of accused.
In cross examination he recalls that Constable Hakim was also present. He denies accused confessing to assault of complainant only. He stated that accused admitted the allegation of rape. He stated that accused never wanted the interview read back to him and he never read back the interview. He was aware that accused only reached class 5 and didn't understand English. He explained the medical report to accused in Fijian. He was not told by PC Hakim to write down in interview that accused raped. He didn't tell accused to admit the offence. He confirms that accused signed the interview but never signed the last page of the interview. He denies forging accused signature on last page on copy of interview. He doesn't know who signed accused signature on last page of copy of interview. He didn't fabricate accused answers. Accused didn't sign last page of interview as he forgot to give last page to accused to sign. He stated that Judge's rules were never breached. He wrote down what accused told him. He didn't force accused to admit to the allegation of rape. Answers of accused were not obtained by force.
In re-examination he stated that his not lying to court. He didn't breach judge's rules and he didn't fabricate the caution interview of accused.
In cross examination he stated that he can't recall how long interview took. PC Hakim was present and seated close by the table. Hakim
was present but he can't recall whether he was present throughout the interview. He stated that interview was read back to him.
In re-examination he stated that the interview was read back but the rape part was never mentioned to him.
Analysis & Finding
Samuela Qica
Resident Magistrate
31st July 2013
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URL: http://www.paclii.org/fj/cases/FJMC/2013/283.html