State v Tabuavula [2016] FJMC 5; Criminal Case 345 of 2012 (21 January 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 345/2012

STATE

V

SANAILA TABUAVULA

Counsel: Mr.Vodokisolomone for the State
Ms. Boseiwaqa (LAC) for the Accused
Date of Ruling : 21st of January 2016

RULING ON VOIR DIRE

1. The accused is charged with 02 counts of Aggravated Robbery, 01 count of Theft, 01 count of Driving Motor vehicle without a valid licence, 01 count of Driving Motor Vehicle in contravention of Third party policy risk and one count of escaping Lawful Custody in this Court. Now he is challenging the admissibility of his caution statement based mainly on assault.
   
2. The Prosecution called 03 police officers during the voir-dire hearing.
   
3. PW1 was PC Namata who was part of the team who arrested the accused near village 6 on 01/03/2012. The accused was taken to Valelavu police station and handed over to charge room. He was not assaulted on that day. Under cross-examination the witness said there were 03 officers for the arrest and neither he nor any other police officers assaulted the accused. He was not injured on that day.
   
4. PW2 was Sgt .Amani Bosenawai who was in charge of the strike back unit on that day and was part of the team who arrested the accused. He was not assaulted on that day and was taken to Valelavu police station. PW2 did not have contact with the accused from 01st March to 03rdMarch and was not also in the police vehicle. Under cross- examination the witness said he did not assault the accused in the interview and was not involved in that interview.
   
5. PW3 was DC Amani Bola, who conducted the caution interview of the accused on 03/03/2012. This was conducted in Nabua Police Station and DC Sanjay was present. The interview was conducted in English language and the accused signed the interview. He was not assaulted or forced during the interview. The interview was marked as P1. Under cross- examination the witness said he was not present during the arrest and was not taken to hospital after the interview. DS Salaniata took him to Samabulla health center after he complained about body pain .
   
6. For the defence the accused and another witness gave evidence. In his evidence the accused said he was arrested near the mini bus stand on 01/03/2012 by strike back unit. He was assaulted and punched . They put him to the twin cab and took him to Nabua Police station . But from there he was taken to Valelavu Police Station and locked in cell. Next morning they took him to second floor office where the officers from strike back unit questioned him and assaulted him. Then they took him to Nabua Police Station strike back unit office where he was assaulted again . The accused told the police to take his statement as he could not bear the assaults and admitted to the offences. After the interview he was taken to health center where doctor found injuries in his body from the assaults. The medical report was marked as D1. Under cross-examination the witness said he was assaulted by PC Namata and could not lodge a complaint because the police was there.
   
7. DW2 was IowaneBenedito and in his evidence said he saw the accused taken to strike back office on 03/03/2012 and heard the assault and swearing by police officers. When he was brought out from the room the witness saw the accused limping and eyes swollen.
   
8. Having summarized the evidence in the above manner now I would consider the applicable law for this case.
   
9. In Wong Kam-ming v The Queen (1980) A.C. 247, P.C., the Privy Council observed that:
   

"[t]he basic control over the admissibility of statements 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 turn for an answer to the voluntariness of the confessions."

10. In Ganga Ram &ShiuCharan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984, the Fiji Court of Appeal elaborated this in the following manner.
    

"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)AC574.

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".

11. The main allegation by the accused is that from the time of the arrest up to the interview he was assaulted by police officers and because of that he admitted to the offences. But the State is denying that and called police officers to rebut that.
    
12. But there is a medical report marked as D1 before this Court and according to that the doctor who conducted the examination on 04/03/2012 found injuries on the accused face, leg and body. There is no evidence to show that the accused was injured before the arrest and therefore only reasonable inference I can draw is that these injuries happened whilst in police custody. And these injuries are consistent with what the accused was saying throughout the hearing.
    
13. Accordingly I find that the Prosecution has failed to prove beyond reasonable doubt the accused gave the confession voluntarily. Therefore this statement is not admissible in the trial proper.
    

Shageeth Somaratne
Resident Magistrate