State v Naduva [2013] FJMC 358; Criminal Case 1606.2010 (4 October 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 1606/2010

STATE

V

FABIANO DAKAI NADUVA

For Prosecution : Ms. Latu for the State
Accused : Ms. Raisa for the Legal Aid

Date of hearing : 26th September 2013
Date of Ruling : 04th October 2013

RULING ON VOIR DIRE

[1] The accused is charged with three counts of Indecent Assault contrary to section 154(1) of the Penal Code.

[2] When this was called on 29th December 2010 the defence counsel informed the Court that they object to the caution statement to be tendered in the trial.

[3] Voir dire grounds were filed on 20th March 2013. The main grounds were that the accused was intimidated and assaulted by police officers at the time he was taken from his place and at the C.I.D. office and there was breach of rights under the Judges Rules.

[4] Voir dire hearing was conducted on 26th September 2013 and the prosecution called four police officers as witnesses. The accused gave evidence for his case.

[5] PW1 was PC Aseli Tunuaka, the arresting officer. He said on 10th September 2010 around 12 o'clock he went to the accused's house with DC Inoke. He met the accused there and explained the reason and arrested him. The accused was handed over to the IO. PW1 said he did not assault, threatened and intimidated the accused. In cross examination PW1 said there were only three officers present that day and the driver did not assault him in the vehicle. He also denied that the accused was assaulted in the C.I.D. Office.

[6] PW2, DC Inoke was the IO as well as Interviewing officer. He also went to the accused's house and denied he was assaulted in the vehicle. Interview commenced on 10th September 2010 and concluded on 11th September 2010. PW2 also said in evidence in chief as well as cross examination that the accused was not subject to any assault or intimidation during the interview. In cross examination he also said WDC Salaseni was present as a witnessing officer and she may have overlooked some pages when signing the interview.

[7] Third witness was WDC Saleshini and she said she witnessed the interview two days. She said by mistake she did not sign some pages. By consent the charge statement was tendered through PW4.

[8] The accused said on that day he was arrested by pW1 and PW2 and he was not given any reason for the arrest. In the vehicle the driver assaulted him and in C.I.D. Headquarters also he was assaulted and was intimidated. In cross examination also he said was assaulted by police officers.

[9] Having briefly considered the evidence led in the hearing it would be pertinent to consider also the relevant law regarding this kind of applications.

[10] The classic statement of the common law rule as to admissibility of confessions was that of Lord Summer in Ibrahim v R [1914] AC 599 at 609:

"It has been long been established ..... that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntarily statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority." (Murphy on Evidence 10th Edition at page 300)

[11 ] In Fiji this was discussed in the case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, where the 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".

[12] Therefore the prosecution got the onus to prove that the statement was obtained voluntarily and without use of force, threats, oppression or any inducement.

[13] Also the prosecution needs to prove that the statements were obtained without any breaches of the accused's rights (Judges Rules) and if there were any breaches, there was no resulting prejudice to the accused.

[14] The burden lies on the prosecution and standard of proof is beyond reasonable doubt. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

[15] Two main witnesses (PW1 and PW2) called by the prosecution denied any assault or intimidation whilst bringing the accused to the station and in the Headquarters. Their evidence was consistent with each other.

[16] Also the documents tendered by the prosecution showed that there were no visible injuries on the accused whilst he was in custody.

[17] Only concern for me was that the witnessing officer failing to sign in the entire interview notes. But I am prepared to accept that she may have overlooked that.

[18] Even though the accused in his evidence as well as cross examination said he was assaulted I am not prepared to accept that. As noted above I am satisfied with the evidence given by the prosecution's witnesses.

[19] Therefore I decide that the Caution Interview of the accused is admissible in the main hearing.

04th October 2013

H.S.P.Somaratne
Resident Magistrate