State v Vodo [2014] FJMC 96; Criminal Case 1566.2012 (30 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 1566/2012

STATE

V

SAILOME VODO

Ms. Kant for the State
The accused in person

Date of Hearing : 30/05/2014
Date of Ruling : 30/05/2014

RULING ON VOIR DIRE

[1] The accused is charged with two others for 2 counts of Aggravated Robbery , 03 counts of Theft and one count of Damaging property contrary to various provisions of the Crimes Decree No 44 of 2009.

[2] The accused had made admissions in his caution statement dated 10th November 2012 and now he is challenging the admissibility of that in this Court.

[3] The basis for his objections were that he was verbally assaulted , was under oppression , intimidated by the Interviewing Officer. He filed these grounds on 27th April 2013

[4] A voir dire hearing was conducted today in which the prosecution called the interviewing officer whilst the accused gave evidence for the defence .

[5] PW1 was DC 3665 Josaia who conducted the caution interview of the accused. He gave the accused all his rights and he did not assault or threaten the accused before or during the interview . There were no others present apart from him and the accused during the interview and the accused did not complain about anything during the interview. He also said that the accused was not intimidated or oppressed during the interview. The accused was given the right to cross- examine this witness but he declined.

[6] The accused in his evidence said he was assaulted by the arresting officer and during the interview some police officers assaulted him. Also he was not given his rights .

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

[8] 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".

[9]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".

[10] 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".

[11] 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.'

[12] I have considered the evidence presented by both parties in this hearing. From these I am satisfied about the version presented by the prosecution. I am satisfied that the interviewing officer did not verbally or physically assault or intimidate the accused during the interview. Also I note the interview lasted only two hours and I do not consider there would be any oppression for the accused during that time.

[13] I also find that the accused is not a credible witness. He never mentioned in his voir dire grounds that he was assaulted by the arresting officer. This came to light first time only today during the hearing. Also he was contradicting himself in his evidence .

[14] Based on the reasons mentioned above I am satisfied that the State has managed to prove beyond reasonable doubt that the accused gave his caution statement voluntarily.

[15] Therefore I decide that the caution statement of the accused is admissible in the trial proper.

H.S.P .Somaratne
Resident Magistrate