Fiji Independent Commission Against Corruption v Sukanaivalu [2018] FJMC 153; Private Prosecution 72 of 2013 (12 February 2018)

IN THE MAGISTRATES COURT AT LAUTOKA

CRIMINAL JURISDICTION

Private Prosecution No: 72 of 13

FICAC

-vs-

SULIASI SUKANAIVALU

DATE : Monday 12^th February 2018

COUNSEL : Ms.Puleiwai for STATE

Mr.Raratabu for ACCUSED

RULING ON VOIR DIRE

01. The Prosecution seeks to adduce into evidence the record of a caution interview of the accused made on 21^st April 2013 and the charge statement dated 21^st June 2013. The accused objects to the admissibility of these documents on the following grounds;

1. That statements were obtained in circumstances that were unconstitutional to the accused. Prior to the accused being interviewed, he was not given his constitutional rights as per section 13 of the Constitution of the Republic of Fiji 2013.
2. That the statements were obtained I breach of Rule 2 and 4 of the Judge’s Rules.

100. The accused was systematically softened to the interview in that he was not advised of his constitutional rights.
     

02. The preamble to the Judges Rules states as follows:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

03. Therefore, the burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, rests at all times with the prosecution.

04. In the case of Ganga Ram and Shiu Charan v R (FCA Crim. App. 46/1983) Fiji Court of Appeal outlined the two-part test for the exclusion of confessions at page 8:

"It be r 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 use of force, threats or prejudice or inducement by offer of some advantage-what has been picturesquely described as 'flatter of hope or the tyranny of fear.' Ibrahim v R&#1601914>1914) A.C. 559; DPP v Pin Lin (1976) A.C. 574.

Secondly, even if such voluntariness is established, therelso need to consider whether the more general ground of unfairness exists in the way in whin which the police behaved, perhaps by breach of the Judges Rules falling short of over bearing the will, by trickery or by unfair treatment. Regina v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

05. Bearing the above legal principles in mind I now analysis the evidence adduced by prosecution with regard to the caution interview and charge statement.

06. PW1, Kelemedi Naidiri; the interviewing officer gave his evidence and stated that on 20^th April 2013 they went to the accused and found that he is engage in his religious rituals as he is a Seventh Day Adventist but informed his regarding the caution interview. He further said that accused opted to come on the following day which is 21^st of April 2013. He said that accused was given his rights and explained them to him before his caution interview. It was also stated that after every break accused was explained of his rights. He said that none of the occasions accused opted to exercise his rights. The caution interview was marked as prosecution exhibit 01 (PE 1) and the portions of the caution interview were read out to show that his rights were explained during the interview.

07. It was further revealed by his evidence that cation interview was suspended on 21^st of April 2013 and continued again on 23^rd of April 2013. PW1 said that accused turned up at the office on his own free will on the second date as well. He gave evidence that on the second date as well accused was explained of his rights but he opted not to exercise his rights.

08. PW2, Sokoveti Lutua was the witnessing officer of the caution interview and she stated that they approached accused on the particular day and asked him to be present at their office after lunch. She explained in her evidence as to how she witnessed the caution interview and identified the accused while in the dock. She informed that all of his rights were explained to the accused by PW1 Kelemedi; the interviewing officer, but accused opted not to exercise any of his rights. She identified her signature placed the Exhibit 1 (PE 1).

09. PW3 Avneel Prasad gave his evidence being the witnessing officer for charge statement. In his evidence he said that one Mr. Umit Singh was the charging officer and currently he has migrated. He said that as the witnessing officer he observed that accused was given all his constitutional rights and process was conducted in a transparent and fair manner to the accused. During his evidence charge statement was marked as Exhibit 2 (PE 2)

10. After the conclusion of the prosecution case accused was explained of his rights and accused opt to give evidence on his behalf.
    
11. Accused in giving evidence stated that on 21^st April 2013 while he was attending church administration meeting the officers who gave evidence approached him and said that they need to get a statement but permitted him to come after 12 noon. He said that on his way to FICAC office at Lautoka they came again and asked him to hop into the vehicle they came and took him to FICAC office. Accused said that he was arrested by officer Naidiri and interviewed under caution after detaining him inside the office for about 2 hours. He further added that he was not given any rights or explained about them but just proceeded to question him.
    
12. First ground of voir dire is that accused did not given his constitutional rights prior to his interview and circumstances were unconstitutional. At this juncture the question arises whether he was really arrested before he was caution interviewed.
    
13. The witnesses for prosecution said in their evidence that they never arrested him but asked him to come to FICAC office. It is to be noted that officers have given him a chance to attend his religious believes and turn up himself at office thereafter. This shows that he was free to make his decision and therefore cannot be interpreted as an arrest. Further it is revealed by evidence that on his way to FICAC office he was asked to get in to their vehicle. Accused in his evidence said that he was arrested at this point but the interviewing officer said that he was not. By the evidence of the PW1 it is obvious that accused was released on 21^st April 2013 asking him to avail himself on 23^rd of April 2013 for further interviewing. This has never been challenged by the accused and therefore shows that accused was not arrested.
    
14. In the light of above evidence court is of the view that accused has never been arrested on 21^st April 2013 before his caution interview. Therefore rights under section 13 of the Constitution do not come to play. But prosecution even at this stage had explained his rights by Q16 to Q20 of the caution interview marked as PE1 and for the second day by Q135 to Q137. Therefore, prosecution has proved that accused’s constitutional rights have not been violated.
    
15. With regard to the second voir dire ground the answer is crystal clear as per the Q9-20 and Q132-Q139 of the caution interview marked as PE1 and the Q12 of the charge statement marked as PE2. Therefore, without much analysis I conclude that Judges’ Rule 2 and 4 is complied with and properly administrated during the caution interview and charge statement.
    
    16. The third allegation or the voir dire ground is that he was systematically soften to interview in that he was not advised of his constitutional rights. Accused has failed to state as to how he was systematically softened to the interview. During his cross examination it was revealed that he was a formal officer of judicial department and the FICAC office itself. He admitted that he has under gone several trainings and worked close with legal practitioners. His evidence was heavily challenged and court also noticed the he was trying to circumvent with snobbish explanations. Court is of the view that he is an educated person with much exposed to legal knowledge so that even without explaining much, he should be aware of his legal rights.
        
    17. Having said that court does not take lightly that prosecution should not explain and give his rights under constitution and the burden of proving shift to accused at any time. After careful consideration of the marked documents PE1 and PE2 it is observed that throughout the interview and charge statement his constitutional rights have been explained and given to him.
        
    18. Accordingly the evidence adduced by the prosecution, this court is of the view that prosecution has proved beyond reasonable doubt that accused has been given all his constitutional rights as to preserve the fairness and voluntariness of the statement by accused. Therefore, I conclude that the caution interview of the Accused is admissible in evidence.
        

Bandula Gunaratne
Resident Magistrate
At Lautoka
12^th February 2018