IN THE HIGH COURT OF FIJI AT SUVA

CRIMINAL JURISDICTION

Criminal Case No. HAC 258 of 2022

BETWEEN: THE STATE

AND: 1. TUPENI NASAU

2. WAISEA SASALU

For the State: Mr. Naimila

For the 1st Accused: No appearance.
For the 2nd Accused: Mr. Navuni and Ms. Chand

Date of Voir Dire: 12th March 2024

Date of Ruling: 22nd March 2024

Voir Dire Ruling

1. The two Accused persons are charged with the following offences under the
Information filed on the 1st day of September 2022: -

INFORMATION BY THE
DIRECTOR OF PUBLIC PROSECUTION

TUPENI NASAU AND WAISEA SASALU are charged with the following
offence:

Statement of Offence
AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes
Act 2009

Particulars of Offence
TUPENI NASAU and WAISEA SASALU on the 28th of July 2022 at Suva
in the Central Division, in the company of each other, stole 1 x Navy dark blue
Infinix mobile phone, and assorted cards from RAVISHEK CHANDAR and
immediately before stealing from RAVISHEK CHANDAR used force on him.

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2. The two Accused persons were first produced in the Suva Magistrate’s Court on the
1st of August 2022 and the matter was sent up to the High Court in Suva.

3. They were arraigned in the High Court on the 15th of August 2022 and although the
record does not record the date when the plea was taken, it is safe to say that the
Accused have both pleaded not guilty, with the first Accused representing himself
and the second Accused being represented by the Legal Aid Commission.

4. The first Accused indicated on the 20th of September 2022 that he wished to
challenge the record of interview and he was given time to file the voir dire grounds.

The voir Dire Grounds.

5. The 1st Accused submitted his voir dire grounds on the 20th of September 2022. He
challenges his record of interview on the following grounds: -

(i) Question and answers 84 to 90 were fabricated by the interviewing officer

and it was not his answer. This is not a voir dire issue as it is evidential in
nature and will be dealt with at the substantive trial.

(ii) He was given false promises by the interviewing officer that if he cooperated
with the investigation, they would decrease the charge to Theft. Even though
he had no knowledge of the case, he just said yes to the allegations and then
later he knew that they were lying.

(iii) There was no witnessing officer at the interview and there was no signature
of the witnessing officer to prove that he was present.

6. The matter was fixed for trial from the 11th to the 15th of March 2024 in the presence
of both Accused, and the matter was fixed for PTC on the 31st of January 2021.

7. When the matter was called again on the 31st of January 2024, the 1st Accused was
not present therefore a bench warrant was issued for his arrest. The warrant was
made returnable for the 29th of February 2024 and on that date the Court was advised
that the 1st Accused had apparently left the country and the Police were directed to
confirm the same with an updated bench warrant report.

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8. On the next mention date, 6th March 2024, State counsel advised the Court that they
were unable to obtain the 1st Accused’s travel history and advised that they would
try and get confirmation of his whereabouts through other means, either through an
affidavit or by leading evidence from witnesses. The matter was then adjourned to
the Trial date – 11th March.

9. On the first day of Trial, the State made an oral application for Trial in Absentia
with respect to Accused 1 Tupeni Nasau and this application was supported by the
affidavit of the investigating officer Sgt. 2391 Ulaiasi Robanakadavu.

10. After hearing from both parties and considering the affidavit in support, the Court
granted the application for Trial in absentia against Tupeni Nasau, commencing
with a voir dire hearing as he had challenged the record of interview and filed voir
dire grounds.

11. The voir dire hearing commenced on the 12th of March 2024.

The voir Dire Hearing.

12. The State called the following witnesses: -

(i) PW1- PC 7527 Emosi

(ii) PW2 – DC 7541 Bruno
(iii) PW3 – DC 4321 Aasaeli Tuivuaka
(iv) PW4 – DC 3536 Josaia
(v) PW5 – Sergeant Mataiasi

13. The following documents were tendered into evidence: -

(i) Exhibit P1 – Record of Interview for Tupeni Nasau

(ii) Exhibit P2 – Tupeni Nasau’s identification details (MC Form 1A)
(iii) Exhibit P3 – Coloured photograph of Tupeni Nasau
(iv) Exhibit P4 – Charge Statement of Tupeni Nasau

14. The first two witnesses are the arresting officers. On the night of the 28th of July
2022, the two officers received information relating to two robberies – one at the

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 Terry Walk and the other later that night at Carnarvon Street. The description of the
two suspects in both incidents were provided and the two officers proceeded on
mobile patrol throughout Suva.

15. They saw the two suspects when they were driving along Victoria Parade and they
saw them in front of Temptation 2 Nightclub. They called out to them however the
two suspects ignored them and entered the nightclub.

16. The two officers then got off and followed the two suspects into the nightclub and
they saw them standing at the Bar. They brought them outside the club and into the
Police vehicle.

17. PW1 then formally arrested them – he formally introduced himself, informed them
of the allegations raised against them and informed them of their constitutional
rights. PW1 identified the 1st Accused from his photograph.

18. This testimony was corroborated by PC Bruno (PW2) and he confirmed that he did
not assault, threaten or make any false promises to the two suspects while they were
in his custody nor did he see PW1 doing that to the two suspects.

19. The next witness was DC Asaeli based at the Crime Branch at Totogo Police Station.
On the 28th of July 2022 he was on day shift, and he was instructed by the
investigating officer to interview the suspect Tupeni Nasau.

20. He confirmed that he interviewed Tupeni Nasau in the Crimes general office, and
the interview was witnessed by DC Josaia. The Accused elected to be interviewed
in the English language. The three of them signed on every page except at page 2
and the last page the witness forgot to put his signature, but the Accused and the
witnessing officer signed on every page.

21. The interview commenced at 10:55 am on the 29th of July 2022 and the interview
was concluded in one day.

22. He put the allegations to the Accused Tupeni Nasau, and he advised that he
understood the allegations, but he refused to sign to acknowledge the allegations.

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23. He then gave Tupeni Nasau the right to counsel, the right to remain silent and the
consequences of not remaining silent. He also informed him of his right to bathroom
and meal breaks or to rest.

24. There were three breaks in the interview – the first break was at 12:30 pm to have
his lunch and rest for 20 minutes. The second break was for Tupeni Nasau to rest as
he was complaining of a toothache and this break was for 2 hours. The third break
was to attend scene reconstruction.

25. He confirmed that Tupeni Nasau answered all the questions put to him and he did
not threaten, intimidate, or make any promises to him in order to elicit his answers.

26. After the interview he filled in the Accused identification detail form. He identified
Tupeni Nasau from his photograph.

27. The fourth witness PW4 was DC Josaia Bukaniraraki, of the Crime Branch, Totogo
Police Station. He confirmed that he witnessed the interview, and he did not
threaten, intimidate or promise anything to Tupeni Nasau in exchange for his
statement nor did he see the interviewing officer do any of these things to Tupeni
Nasau.

28. He also did not see the witness threaten, intimidate, or make any promises to Tupeni
Nasau in exchange for his statement.

29. The last witness was Sergeant Mataiasi, the charging officer. He confirmed that he
recorded the charge, and the charge statement was recorded in English. He
cautioned the Accused and accorded him his rights.

30. That was the evidence for the State.

Analysis

31. The Constitution guarantees the following rights to an arrested or detained person
at section 13 and for the purposes of this voir dire challenge, the relevant sections
are section 13 (1) (a) to (d), which provides as follows: -

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 “Rights of arrested and detained persons

13.—(1) Every person who is arrested or detained has the right—

(a) to be informed promptly, in a language that he or she understands, of—

(i) the reason for the arrest or detention and the nature of any charge
that may be brought against that person;

(ii) the right to remain silent; and

(iii) the consequences of not remaining silent;

(b) to remain silent;

(c) to communicate with a legal practitioner of his or her choice in private in

the place where he or she is detained, to be informed of that right promptly
and, if he or she does not have sufficient means to engage a legal practitioner
and the interests of justice so require, to be given the services of a legal
practitioner under a scheme for legal aid by the Legal Aid Commission;

(d) not to be compelled to make any confession or admission that could be used
in evidence against that person;” (Emphasis added)

32. Section 288 of the Criminal Procedure Act provides for voir dire hearings to be
conducted at any stage of the proceedings after the plea has been taken.

33. The principles relating to voir dire hearings are well settled and were discussed in
the case of State –v- Nakauyaca – Voir Dire Ruling [2020] FJHC 825; HAC 283 of
2019 (9 October 2020).

34. The law was discussed from paragraphs 6 to 9 of the judgment as follows: -

“The Law

[6] In Ganga Ram and Shiu Charan v. Reginam; Criminal Appeal No. 46 of 1983
(13 July 1984) (unreported) the Fiji Court of Appeal outlined the two grounds to be
considered for admissibility of confessions;

“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 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 [1914] AC 599; DPP v. Ping Lin (1976) AC
574. Secondly even if such voluntariness is established there is also a 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

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 of overbearing will, by trickery or by unfair treatment>Regina v. Sang [1979]
UKHL 3; (1980) AC 402. This is a matter of over overriding discretion and
one cannot specifically categorize the matters which might be taken into
account."

[7] His Lordship, Justice Daniel Goundar in the case of the State vs. Maikeli Rawaqa
and Segran Murti Criminal Case No. HAC 42 of 2004 (16 February 2008); held as
follows:

“The principal governing the admissibility of confessions are well settled.

Confessions could not properly be given in evidence unless it was shown that
they were made voluntarily, that is, not obtained through violence, fear of
prejudice, oppression, threats and promises or other improper
inducements (Ibrahim v R [1914] AC 599). Even if such voluntariness is
established, the trial Judge has the discretion to exclude the confessions on a
general ground of unfairness (R v Sang [1979] UKHL 3; [1980] AC 402). In
addition, confessions could be excluded for breaches of Constitutional rights.”

[8] Accordingly, in order for a confession made by an Accused person to a

police officer to be admissible as evidence against the maker of that confession,
the confession should have been made by that Accused voluntarily, meaning it
should have been made by the Accused on his own free will, with full
appreciation of the legal consequences. If the said confession is made as a
result of oppression, such confession would not be admissible and should be
excluded. Oppression is anything that undermines or weakens the exercise of
free will. However, even if such voluntariness is established, the trial Judge
has the discretion of ruling such confession inadmissible, if it is obtained in an
unfair manner (on general grounds of unfairness).

[9] The onus of proving voluntariness/lack of oppression and fairness is on the

prosecution and they must prove these matters beyond reasonable doubt. If
there has been a breach of any of the Accused’s Constitutional rights, the
prosecution must prove that the Accused was not thereby prejudiced.”

35. The Court of Appeal also discussed this in the case of Josateki Lulu v State [2016]
AAU 43/11 (HAC 62/10S) 29 November 2016 where the Court stated as follows:-

“In assessing weight and value of a confession, assessors should take into
consideration all circumstances in which it was made, including allegations of
force, if true. Trial judge is bound to place a defence challenging the caution
interview on the basis that D simply agreed to what the police wanted him to
admit due to persistent physical assault already inflicted upon him and a fear
of similar assault in the future by police, to evaluate probative value and weight
to be attached to the caution interview. Detached direction is adequate

36. The Accused Tupeni Nasau answered a total of 92 questions, and he was given
breaks at his request. He was advised of all his rights, and he chose not to exercise
his right to counsel.

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37. After considering the evidence led, I am satisfied beyond a reasonable doubt that
the 1st Accused Tupeni Nasau, answered the questions that have been taken down
by DC Aasaeli in the record of interview that has been tendered as Exhibit P1.

38. Th+e Court is further satisfied beyond a reasonable doubt that the Tupeni Nasau
gave the statement of his own free will without any coercion, physical assault or
any false promises or inducements on him.

39. I have also examined the conduct of the Police officers at the arrest, during the
interview and during the conduct of the charge and I am satisfied that they acted
fairly and accorded to him all of his rights and protections under the Constitution
and the law.

40. I therefore find that the State has discharged its burden and the statement of Tupeni
Nasau shall be admissible in evidence against him at the Trial of this matter.

41. So ordered.

cc: - Office of the Director of Public Prosecutions

- Office of the Legal Aid Commission
-