Regina v Aitorea - Ruling Voire Dire [2011] SBMC 8; Criminal Case 1187 of 2010 (5 August 2011)

IN THE CENTRAL MAGISTRATE COURT

Criminal Case No. 1187/10

REGINA

V

EDDIE AITOREA

Date of Hearing; 06/06/11
Date of Ruling: 05/08/11
Prosecution: PC Metope
Defence: Mrs M. Manaka

RULING ON VOIR DIRE

(1) The defendant is charged with one count of shop breaking contrary to section 300 (a) of the Penal Code. It is alleged that sometimes between 31/5/10 and 1/6/10 he broke and entered a shop, the property of Lucy Li and stole goods from the shop. He was charged on 16/7/10.

(2) The defendant was arrested by the police on 2/7/10 and he was interviewed on the same day in which he made certain confessions and he is now challenging that the record of interview is not admissible.

(3) He gave 2 grounds for challenging the record of interview. They are:

(a) That the record of interview was unfairly obtained;

(b) That it was involuntary.

(4) The prosecution called 2 witnesses, the interviewing officer PC Raymond Tongapada (Raymond) and Acting/Sgt Collin Ramusalu (Collin) the witnessing officer.

(5) Collin said that he arrested the defendant at China Town whilst he was travelling in a bus and brought him to the Central police Station where he participated in a record of interview.

(6) The evidence of both Collin and Raymond are:

• - That the record of interview commenced at 3.23p.m and concluded at 4.40p.m on 2/7/10
  
• - That Raymond did the questioning in Pidgin English and that Collin was the witnessing officer and that he was present right through the record of interview.
  
• - That the accused was cautioned and given the right to either remain silent or participate in the record of interview
  
• - That he was given the right to the services of a lawyer and he elected not to have a lawyer and said that he will have a lawyer when he attends court.
  
• - That he freely answered all the questions put to him.
  
• - That at the completion of the record of interview he signed each page of the record of interview and it was signed by Raymond- as the interviewing officer and Collin as the witnessing officer.
  

(7) In cross-examination, Raymond denied that he was with Collin when the defendant was arrested. He also denied that the defendant wanted to remain silent during the course of the record of interview. It was put to him that the accused did not sign the record of interview and in response said that he did.

(8) In cross-examination of Collin it was suggested to him that he made some notes during the record of interview and he said that he did not. This question about making note was not put to Raymond. It was put to him that the defendant and said at 4 different times. that he wanted to remain silent. The defence counsel did not cross examine Collin at all in relation to the defendant signing the record of interview when Collins's as well as Raymond's evidence is that the defendant signed on all pages.

(9) The defendant when giving evidence said that he was arrested at SSEC church at Kukum. He said that the record of interview commenced at 9.00am and concluded at 10.15am. It was not put to Collin that the defendant was arrested at SSEC church at Kukum. It was not put to Raymond and Collin that the record of interview commenced at 9.00am and concluded at 10.15am.

(10) In cross-examination, the defendant said that he was threatened and forced by both Raymond and Collin to participate in the record of interview. Neither Raymond nor Collin were cross-examined about this issue of threat and force. It was the defence case that the defendant did not sign the record of interview. In his evidence he said quite emphatically that he did not sign the record of interview but in cross examination he agreed that he signed the second last page of the record of interview. He also agreed that he did not want any lawyer to be present but wanted one when he attended court and that corresponds to the answer No. 24.in the record of interview. Upon further cross-examination he agreed that he told Raymond to write something and eventually he said that he agreed with the entire contents of the record of interview. When suggested to him that he signed the record of interview as he agreed with everything he said only signed the portion he agreed with and not the ones that he did not agree with.

(11) Both the prosecution witness gave evidence in a very consistent and forthright manner and I find them to be truthful witnesses whereas the defendant gave evidence in a confused manner and he left the impression that he was far from being honest. I therefore accept the evidence of the prosecution witnesses and reject the evidence of the defendant.

(12) The onus of proof is on the prosecution to prove beyond all doubt that the admission was made voluntarily for the confession to be admissible as evidence.

(13) Having found that prosecution witness to be truthful and having rejected the defendant's evidence I am satisfied that the prosecution has proved beyond all doubt that the admission was made voluntarily and I hold that the record of interview shall be admitted into evidence and in doing so I have taken into account the provisions of Section169 of the Evidence Act 2009, which provides that having regards to all the circumstances I could still refuse to admit the admission if it was unfair to the defendant. I find as a matter of fact that there was no unfairness to the defendant.

Shafi Khan
Principal Magistrate