State v Tamani [2014] FJMC 55; Criminal Case 43.2006 (3 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 43/2006

STATE

V

ESAVA TAMANI

For Prosecution : PC Josuha
Accused : Mr. Waqanibete from the Legal Aid

RULING ON VOIR DIRE

[1] The accused is charged with one count of Found in possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.

[2] The accused had made admissions in his caution statement (31/07/2006) and now he is challenging the admissibility of that in this Court.

[3] Both parties informed me that a voir dire hearing was conducted before Resident magistrate Waqaivolavola on 14th June 2007 and had no objection for me to deliver the ruling based on those proceedings.

[4] The grounds for voir dire were that the accused did not comprehend the contents of the interview because of his disability and being a person with no hearing and speaking abilities was prejudiced by the failure of the interviewing officer to ensure that the interview was conducted in the presence of either a specialist or a relative.

[5] For the voir dire hearing on 14th June 2007 the prosecution called three witnesses. PW1 was Inise Tawaketini a teacher for the deaf. He was called to interpret the proceedings in the Court but in cross examination admitted he was not present at the police station during the interview.

[6] Second witness was Miliana Nareno (aunt of the accused) and she said she communicate with the accused in sign language. In cross examination she said she had to say things several times before the accused could understand them.

[7] Final witness for the prosecution was WPC Loata the interviewing officer. She conducted the interview on 31/07/2006 and used two dialects because he was deaf. In cross examination she said the accused understood her questions and she managed to know what he was telling by reading his lips. She also admitted that she did not call anyone from the Deaf and Dumb school and in re-examination said she got the answers in the interview through him.

[8] The accused opted to remain silent in the voir dire hearing and both parties filed written submissions after the hearing.

[9] The State in their submission argued that the accused clearly understood what was being said in the interview and he was not prejudiced by absence of either a member of the Deaf association nor relatives.

[10] In his written submission the learned counsel from the Legal Aid pointed out that police had breached the constitutional rights of the accused and therefore the caution statement is inadmisible.

[11] Now I would briefly consider the relevant law in this kind of application.

[12] The basic control over admissibility of statement was discussed in the judgment of Lord Hailsham of Marylebone in the decision of the Privy Council in Wong Kam-Ming v. The Queen (1982) A.C 247 at 261 (as cited in the Fiji High Court case of State v. Rokotuiwai – ruling on voir dire [1996] FJHC; HAC009r.95s (21 November 1996),

"The basic controls over admissibility of statement 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] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must for an answer to the voluntariness of the confessions".

[13]This rule was also strongly emphasized in the Fiji Court of Appeal case of Shiu Charan v. R (F.C.A., Crim. App. 46.83),

"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 (194) 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 a 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".

[14] Madame Justice Shameem succinctly stated in State v. Rokotuiwai (supra) at pg. 4,
"It is for the prosecution to prove beyond reasonable doubt that the admissions are voluntary. I remind myself of that...It is essentially a matter of fact".

[15] 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.'

[16] I believe only issue to be determined in this hearing is whether the State has conducted the caution interview of the accused fairly considering his disability.

[17] In Blackstones Criminal Practice 2005 at page 1058, para D1.27 says:

"If any arrested person does not understand English or appears to be deaf and the custody officer cannot communicate with him, he must call an interpreter as soon as practicable and ask him to provide the information)".

[18] In this case the interviewing officer testified that she managed to communicate with the accused and therefore did not call an interpreter. But the State admitted in the written submission that the officer in cross- examination admitted that the accused may not have understood the questions because of his disability which naturally raise a doubt about the fairness of the interview.

[19] The interviewing officer in her evidence also said she had no difficulty communicating with the accused. In fact I note that she managed to conduct the caution interview well within an hour (0810 hrs to 0915hrs). But PW2, the aunt of the accused said the accused stayed with her for 10 years but still she had to repeat two or three times before he could understand her. But surprisingly interviewing officer who had met the accused for the first time had no difficulty in communicating with him.

[20] Based on the reasons above I am not satisfied that considering the disability of the accused the police had conducted the caution interview fairly and decide that the statement is not admissible in the trial proper.

03rd April 2014

H.S.P .Somaratne
Resident Magistrate