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High Court of Fiji |
IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 6 OF 1992
STATE
-v-
1. VIVIAN MALFORD KOI
2. JULIAN LAUTOFA CROCKER
3. GEORGE FONOMOA
4. JOVILISI RAISILI
CHARGE: Conspiracy to commit forgery.
Obtaining goods by false pretence
Forgery
Uttering forged document
Obtaining money on forged document.
Mr. Satya Hettige for the State
Mr. Tevita Fa for 1st Accused
Mr. John Semisi for 2nd, 3rd & 4th Accused
RULING
When the learned prosecutor sought to call the Investigating Officer Detective PC Paulo Tabacece the Defence Counsels asked that the Assessors to retire so that a voir dire could be held as they wish to challenge the admissibility of statements given to the Police by the accused persons on the ground that they were not given voluntarily.
The Defence contended that the statements given by the accused persons were obtained as a result of assault and breach of the Judges' Rules by the Police.
On the other hand the Prosecution denied any assault on the accused persons by the Police, while in custody, and affirmed that their statements (E1,2,3,4,5 & 5A) were given voluntarily and of their own free will.
The Prosecution called six witnesses, all Police officers, Constables Paulo Tabacece, Waisea Tabakau, Luke Lavela, Cpl Tomasi Lotawa, ASP Lepani Moceleka and S.I. Emosi Vunisa. All of whom denied any assault at all inflicted on any of the accused persons.
Constable Paulo said in evidence that he interviewed 2nd accused under caution under Judges Rule 2 on Friday 10/5/91 after 4pm at the Serious Crime Office at Vanua House, in the presence of ASP Lepani and DSP Jahir Khan. S.I. Emosi was also around. According to him 2nd accused gave his statement (E1) on his own free will. No force was applied on him or promise given to him. At the end of the interview he did not want it to be read back to him, as he was satisfied with what he had said in his interview and which he signed at the end.
Det/Constable Waisea who interviewed 1st accused & 4th accused under caution at Vanua House, said, that both of them gave their statements voluntarily and no assault or force was applied on them by him or any other Police Officer. (1A's statement was tendered as Ex.E2 and 4A's Original Caution Interview in Fijian as E3 and English translation as E3A).
Cpl Tomasi Lotawa interviewed 3A at the Serious Crime Office at Vanua House under caution in the presence of ASP Lepani on Saturday 11/5/91. He said the 3A gave his statement voluntarily which he signed after it was read back to him. Cpl Tomasi added that he did not use any threat or force or promise to the 3A, nor did he assault him at any time during the interview. He denied seeing S.I.Emosi and ASP Lepani assaulting 1A and 2A. He also denied hearing ASP Lepani swearing at 1A and his Counsel Mr. Fa.
ASP Lepani, who was the Supervising Officer in this case, denied any assault at all on any of the accused persons, either by him or S.I. Emosi while in custody. They were cooperative with the Police and gave their statements voluntarily and of their own free will. He said that he allowed 1A to call Father Sam on the telephone on Saturday 11/5/91, who came down to Vanua House to see 1A. He was present when Father Sam was with 1A, who was crying and telling the priest that he was sorry for committing the offence. ASP Lepani further said that Constable Waisea did not tell him that 1A wanted Mr.Fa to be present during his interview nor did he swear at 1A and Mr.Fa.
Constable Luke Lavela, who charged 4A under caution in Fijian said that he did not assault or applied any force on him, and that he gave his statement voluntarily. Original Charge Statement as (E5 and English translation as E5A).
Actg.ASP Emosi Vunisa denied assaulting or threatening any of the accused persons while in Police custody. He denied breaking 1A's denture or punching him in Vanua House.
The Defence at the end of the case for the Prosecution called eight witnesses in support of their case against the Prosecution. In addition to the 4 accused persons, the Defence called 4 other witnesses, namely, Father Sam Koi, a distant cousin of 1A, 1A's wife Mrs Clara Koi, Doctor Dinesh Chaganlal and Varauni Mua, who was originally charged with the 4 accused persons, but the charges against him were subsequently withdrawn by the Prosecution.
Father Sam Koi said he was at his home on Saturday 11/5/91 when he received a telephone call from 1A, who asked if he could come down and see him at Vanua House. At Vanua House he saw 1A with shirt open and was holding his stomach with his hands. He looked very distressed and tears were coming from his eyes. 1A told him about the assault on him and showed him his cracked denture. Before Father Sam left, he said, he had asked ASP Lepani to stop the beating on 1A. On Sunday after the Church Service at 10am he went down to CPS to perform the Holy Communion for the 1A but was not allowed to do so. On cross examination Father Sam said he did not report the beating on 1A to any other Police officer as priests do not normally report beatings on parishioners.
1A said, that, when he came to Vanua House on Saturday morning 11/5/91 he was punched on the left cheek by S.I. Emosi and he flew across to the corner of the room. When he wanted to get up, he was further assaulted by Emosi on the stomach and other places. When he was punched by Emosi on the left cheek he felt that something had happened to his denture. When he checked it he found it broken. He kept the denture till the trial and tendered the same as Ex.D1. He added that Emosi was heavily smelt of liquor. While he was being interviewed by Constable Waisea the other 3 accused persons came in and Emosi started beating 2A for about 10 minutes in their presence. 1A's interview continued by Constable Waisea while Emosi was stepping on 1A's hand and toes, and swearing at him in Fijian. 1A said he was really broken and was scared of Emosi and agreed with all the questions put to him by Constable Waisea, because he was frightened, he might be assaulted further if he did not admit committing the offence. He asked ASP Lepani if he could call his priest, Father Sam, and was allowed to do so. When Father Sam arrived he told him about the assault on him and asked Father Sam to ask the officer in charge to stop the beating on him. Father Sam then asked ASP Lepani to stop the assault on him. 1A also accused ASP Lepani of banging his head against the table and twisting his ears. When he asked if his solicitor could be present during his interview ASP Lepani's swore at him and his solicitor.
During cross examination 1A admitted that his denture was cracked as a result of the punch on the left cheek by Emosi but it was not broken into two. He said that when his solicitor came to see him on Sunday morning he complained to him about the beating. He stated further that the statement he gave to Police was not given voluntarily; it was given under fear, and as a result of assault on him.
2A was taken to Vanua House on the morning of Friday 10/5/91 by ASP Lepani. He was confronted with 4A and he denied committing the offences alleged. He was slapped by Emosi and was directed to wait in his office. After waiting for 2 or 3 hours Constable Paulo then came to interview him. His interview ended at about 8pm and he was taken back to his home and told to come back the following day. He returned the next day which was Saturday 11/5/91. At Vanua House he saw 1A holding his stomach. 2A was then directed into Emosi's room where 1A was. 3A and 4A came in after him and while they were all inside that room, Emosi accused him of being involved in this case. 2A said he denied and was shocked when Emosi punched him in the body, and he fell down, and more blows followed. The assault continued for sometime. Emosi kept on assaulting him and spat on his face. He added, that because of the assault, 1A, 3A & 4A pleaded with him to admit committing the offence, so that the beating on him could stop. He then admitted committing the offence, as a result of the assault. His interview concluded on Monday, after which he was charged and then taken to Court with the other 3 accused persons on Tuesday morning. On Wednesday 15/5/91 he went to see Dr Chaganlal who examined him and prepared a report on him.
On cross examination 2A said he didn't complain to his Counsel Mr Fa when he was brought to Court nor did he complain to the Magistrate. He denied giving his statement to the Police voluntarily.
Dr Dinesh Chaganlal said that on 10/5/91 he examined both 1A & 2A in his surgery. 1A complained of pain on the right and lower chest wall as a result of Police assault. He found bruise on the right side of the eighth rib. In his opinion that was caused by blunt force. He was sent for Xray to CWM Hospital, which showed no bones broken. He examined his mouth and found no injuries but was shown a denture which had a partial break. (Medical Report of 1A tendered as Ex.D2). 2A was examined for pain in the lower chest wall as a result of Police assault. He had bruise on the left side of the chest and in the Doctor's opinion it was a result of force from blunt instrument. (Medical Report Ex.D3).
Mrs Clara Koi said that on Monday 13/5/91, when she visited her husband, 1A, at Vanua House a policeman Stg.Ali told her to tell her husband to plead guilty, as it was a waste of Courts' time and money if they hired a solicitor.
3A was taken to Vanua House on 11/5/91 by S.I. Emosi. At Vanua House he saw 1A crying on the phone. When he was asked by ASP Lepani if he forged any Bank document, he replied "No". He was then taken with 4A to where 1A was. S.I. Emosi then entered the room and punched 1A. Later when 2A came in, Emosi assaulted and also kicked him. 3A was also slapped on the head by Emosi who told him if he didn't talk he was going to get the same treatment as 1A & 2A. He was terrified and agreed to be interviewed by Constable Tomasi. Because of his fear of assault by Emosi he admitted taking part in the offence. He had no choice as he was frightened of being further assaulted. He added that on Tuesday 14/5/91, when they were being taken to Court, Constable Paulo told him to plead guilty and the Judge would be lenient and give him a suspended sentence. He said in cross examination he had no choice but to sign his interview. He said he gave his Bank account No 02-27215-200 under fear. He had to answer according to the wish of the Police. He denied giving his statement voluntarily and said the content of his statement is not true. He said that he mentioned assault on him to Mr.Fa. He did not complain to the Magistrate and was not examined by a Doctor.
Jovilisi, 4A, was brought from his village in Buretu on evening Thursday 9/5/91 and was taken to Vanua House with his cousin Moape. At Vanua House Paulo, Waisea, and S.I.Emosi questioned him about a stolen cheque from Bank. He denied any knowledge about it, and Emosi started punching him in the presence of his younger brother Semi Mua and Moape. Because of the pain he suffered from the assault he then admitted committing the offence.
On Friday while 2A was in Vanua House Police brought him and and forced him to tell 2A that he too was involved in the stolen cheque. He said he was slapped by Emosi to say that. 2A denied any knowledge and Police started slapping him. 4A said he had to answer according to the wish of the Police as he was frightened of being further assaulted. When he was taken to Court on Tuesday 14/5/91 he was advised by Police to plead guilty to the offence, and he could be B/O by the Court.
He said in cross examination that he was assaulted by Emosi on Thursday and Friday in the stomach and chest before the interview. He signed his statement under fear, and what he told Police on 9th & 10th May, 1991, was not true. He accused Waisea of advising him to plead guilty while the Trial within Trial was proceeding sometime the previous week but only told his solicitor sometime much later. He said he pleaded guilty to some charges when first brought to Court because he was frightened as he was being stared at by the people.
Varauni Mua, who was originally charged with the 4 accused persons, pleaded guilty at first because he was told by the Police to plead guilty. Later, on advice of his solicitor Mr Matebalavu he changed his plea to "Not Guilty", and subsequently the charges against him were withdrawn. He said he was in Vanua House, when 2A was denying his involvement in this case and Emosi slapping him on the head. 4A was also slapped while he was being confronted with 2A. He said he saw 2A being slapped for about an hour.
In this proceedings the main issue to be resolved by the Court is "Did the 4 accused persons give their statements to the Police voluntarily?". If it decides that they gave them voluntarily then they should be admitted, if it is otherwise, then they should be rejected.
I must however record my thanks to Counsels on both sides for providing me with a number of authorities which I found very helpful.
In the case for the defence there appears to be two main grounds for challenging the admissibility of the accuseds' statements namely:
(i) Confessions were made as a result of assault by the Police, and statements were made under fear and threat.
(ii) Breach of Judges Rules.
Let me deal first with the first ground of assault on all accused persons which is denied by the Police officers.
All accused persons accused S.I. Emosi of assaulting them while in custody. They suffered pain in the body, stomach, chest region and in the head as a result of punches, kicks and slaps inflicted on them by Emosi. It is in evidence that only 1A & 2A went for medical examination on 10/5/91 by Doctor Chaganlal. The doctor said that when he examined 1A his general condition was good but found a bruise on the side of the chest on the 8th rib. No other visible injuries found. He was sent to CWM Hospital for Xray and the result showed no bones broken. He checked his teeth and there was a partial break in his denture (D1) which 1A showed him. There was no injuries in the mouth.
When 2A was examined he complained of pain in the lower chest wall and the doctor found a bruise on 5th rib on the left side of the chest. He was not sent for Xray as his condition was normal. In the opinion of the Doctor the bruise found on both 1A & 2A were a result of blunt force. In cross examination he agreed that such bruise could be self-inflicted.
3A & 4A, although accused Emosi for assaulting them and causing a lot of body pain, they did not seek medical examination. Now, let us closely look at the allegation of assault. At the outset let me say that Emosi is quite a huge man and if the kind of assault the accused alleged to have been meted out by Emosi then one would have expected very serious injuries indeed to be suffered by the accused persons. Let us take the case of 1A first. If Emosi had hit him on the left cheek as claimed, 1A would have suffered very serious injuries indeed. When one looks at 1A's very light built, one would agree that he would not have only broken his denture, but also his jaw. The punches thrown by Emosi in the chest and stomach regions would have caused, again very serious injuries. But Doctor Chaganlal's finding, is only a bruise on the side of the chest on the 8th rib and no other visible injuries. The Xray result reveals no bones broken or other internal injuries.
Further more Father Sam Koi's evidence that he was so concerned of the assault on 1A, one of his parishioners, that he asked ASP Lepani to stop the assault on 1A. He didn't complain to other Senior Police Officers. One would have thought that, if he was really concerned as he claimed, he would have gone further to see that 1A's complaint of assault was taken to higher authorities within the Police Force or outside the Force. There is also the claim by 1A that he mentioned the assault on him to his solicitor when he visited him at Central Police Station on Sunday morning 12/5/91 yet no complaint was lodged with the Police or at the very least with the Magistrate when 1A was brought to Court with the other co-accused persons on Tuesday 14/5/91. I find this very strange. The 2A on the other hand said that he did not complain of assault to his solicitor, nor did he complain to the Magistrate when he appeared with the other accused persons on 14/5/91.
The 3A, although, he mentioned Police assault on him to his solicitor, he did not raise the matter with the Magistrate when he appeared before him.
The 4A alleged he was punched in the stomach and chest on Thursday and Friday yet he didn't complain to the Magistrate when he appeared before him on 14/5/91. He further said he pleaded guilty to some charges because he was frightened as he was being stared at by the people in Court.
The 4 accused persons are no ordinary persons they are men of certain intelligence and education as 1A, 2A & 3A held responsible positions in ANZ Bank and NBF respectively at the time of the commission of alleged crime. 4A is a Security Officer holding a responsible position with the Security Firm of Wormald by accompanying the Bank officer taking the money every morning from Victoria Parade Branch of ANZ to Waimanu Road Agency and then accompanying the Bank officer taking the days's taking from Waimanu Road Agency back to the Victoria Parade Branch.
With this kind of background I find it rather strange, why the accused persons failed to complain of Police assault, when they first appeared before the Magistrate. For reasons I have already mentioned I find the evidence of Varauni Mua of little credence.
On this ground of alleged assault by the Police I do not find it convincing enough for this Court to reject statements of the accused persons as not being given voluntarily.
(ii) Allegation of breach of Judges Rules.
There is the allegation that both 2A & 4A were not administered with the proper Judges Rule (Preamble d) by the Police when they had sufficient evidence to charge them. Because of such a breach the statements should be excluded.
In Jagendra Sharma v Regina FCA, VOL.16 p.5 the FCA held:
(1) That the Judges Rules are rules of conduct directed to the Police and no more.
In R v. Convery 1968 NZLR page 429.
The appellant's argument is that the statements should not have been admitted as being in breach of r.r. 2 and 3 of the Judges Rules.
It was stated in that case
"It has to be remembered that they are not rules of law. See R v. Bass [1953] 1 Q.B 680; [1953] 1 AER 1064 and Smith v. Queen [1957] HCA 3; (1957) 97 C.L.R. 100. The Court should not just ask itself was one of the Judges' Rules broken? The real question is were the circumstances under which the statement was obtained such that in the interests of Justice it would be unfair to admit them and in deciding that regard must be had to whether there was a breach of the Judges Rule".
In answer to the above question I do not believe that the circumstances under which the statements of 2A and 4A were obtained would render such statements unfair to admit in the interests of justice.
There are other matters of concern to this Court that need to be mentioned one of which is the carelessness of the Interviewing Officers as regards their incorrect recording of the dates of interview. I refer in particular to Cpl Waisea Takabau (then Constable) in his record of interview of 1A. Mr.Fa took him to great length, calling for both the Station Diary and Cell Book at CPS to be brought to Court before Waisea agreed that his record of the dates are incorrect. Be that as it may I do not find it so prejudicial that it should affect the volunteerness of 1A's statement. Again, there has been allegation of Police attempt in persuading the accused persons to plead guilty when they appeared in Court. Even there is the allegation of 4A against Waisea of Advising him to plead guilty while the Trial within a Trial was in progress, and there is the allegation of Mrs Clara Koi against Sgt Ali of telling her at Vanua House on 13/5/91 to tell her husband to plead guilty as it was a waste of Courts' time and money if they hired a solicitor.
There is also the long period in which the 4 accused persons were kept in custody. The 4A was kept as from Thursday 9/5/91 till Tuesday 14/5/91 and the other 4 Accuseds from Saturday till Tuesday 14/5/91 when they were all taken before the Magistrate who granted them bail. There appears to have been breach of Judges Rules in particular 4A who could have been taken before the Magistrate on Monday 13/5/91. However the Prosecution have explained away that because there were originally 41 counts preferred against the Accused persons, and that the ANZ Bank closed during the weekend the Police had to detain the accuseds till Monday when they were ready to charge all the accused persons. A similar situation did occur in the case of Mackintosh CAR 1983 at page 178. In that case the Court of Appeal
Held; "that clearly there had been a breach of principle (d) of the preamble to the Judge's Rules because by Friday and certainly on Saturday the Police were in a position to charge the appellant with a large number of armed robberies. They could and should then have brought him before the justices pursuant to Section 38(4) of the Magistrates' Courts Act 1952 (Section 26 of CPC Cap 21). However by Saturday all the statements had been made voluntarily by the appellant and it was only after Saturday that there was any behaviour by the Police which the Court found difficult to excuse. Nevertheless, that behaviour did not affect the statements made before the weekend and thus, as there was nothing to suggest that any breach of the Judge's Rules had rendered them inadmissible, the statements had properly been admitted in evidence and the appeal would be dismissed,"
The accused in that case had made admissions in a statement under caution on August 2, 1979 and should have been charged and brought before a Magistrate's court on August 3, 1979. No charge was made until Tuesday August 7, 1979 at 12.45pm.
In the case R v. Sang AELR 1979, Vol 2 page 1231 Lord Diplock said:
(1) A trial Judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.
(2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused, after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.
In the present case I find that the probative value of the evidence sought to be admitted by the Prosecution far outweighs its prejudicial effect. I therefore find that the statements of the 4 accused persons were given voluntarily and therefore admissible, and I so rule.
S W Kepa
JUDGE
6th May, 1993
RULING
While Cpl Waisea Tabakau was reading the Original Fijian Caution Interview of the 4A, Mr Semisi raised his objection to his reading out Question 6 as it was highly prejudicial to the 4A. At this stage the assessors were asked to retire so that the issue could be discussed in their absence. Because Mr Semisi was not only objecting to Questions in 4A's interview statement but also certain Questions in the Caution Interview of the 2A & 3A, the Court for convenience sake directed both Mr Semisi and Mr Hettige to prepare their submissions in relation to all Questions objected to by Mr Semisi to be presented today to enable the Court to give a ruling on the matter, whether the answers given by the 2A, 3A, 4A to the Police in their Caution Interview Statements ought to be withheld from the Assessors on the grounds that the prejudicial effect outweighs the probative value and is irrelevant to the charges before the Court.
The Questions objected to in relation to each of the three accuseds namely are:-
I have read all the above questions and answers and I intend to give my ruling as of general application to them as it would be too time-consuming and quite formidable to deal with each individual question, after I have dealt with the relevant law.
Mr Semisi in his submission referred to the case of R v. Sang (1979) 2AER R1222 at page 1228 per Lord Diplock:
"So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value."
He also referred to Blackstones Criminal Practice, in particular the pages relevant to "Editing of Confessions".
He submitted that the answers to Questions referred to above are highly prejudicial and the effect far outweighs the probative value, and therefore the Court should exercise its discretion in favour of the Defence.
Mr Hettige in reply submitted, that the Questions objected to by the Defence Counsel are not prejudicial at all as the probative value far outweighs the prejudicial value if there is any. He added that since the Caution Interview Statements of the Accuseds have been admitted after the Trial within a Trial the whole interview ought to be admitted.
To substantiate his argument be referred to Blackstones Criminal Practice para F17.40 headed. "Editing at Trial to Protect Accused".
"Where the confession of an accused person is admitted in evidence against him, the whole confession is admissible, notwithstanding that it includes matter prejudicial to the Accused. In Turner v. Underwood [1948] 2 KB 284 the response of the accused when charged with an offence of indecency was to say "I have done time for this before", and it was held that the whole complaint was admissible in evidence before the Magistrates. However, Lord Godded noted (at p.286) that: It is the practice as a rule in cases which are tried before juries that where the Court knows there is something said by a man in his statement which admits a persons conviction, or shows other matter reflecting on his character, the Court sees that that is not read out to the jury."
He also referred to the case of Turner v. Underwood 1948 2 KB. p. 284 where it was held:
(1) Although as a general rule it was the practice in jury cases that where the court knew of something in a defendants' statement which admitted a previous conviction or which otherwise reflected on his character it would not allow that part of the statement to be read out to the jury, nevertheless it was not a rule of law that what a man said in relation to the charge was not evidence against him.
There is no doubt that the statements of each accused contains certain admissions implicating the other accuseds. This is the main objection of Mr Semisi. He has asked the Court to exercise its discretion in favour of the Accuseds and withhold the objected Questions from the Assessors.
May I again refer to Blackstones Criminal Practice F.17.33. at page 1979 headed "Confession Implicating Co-Accused".
"A confession made by an accused person which is admitted in evidence is evidence against him. (Police & Criminal Evidence Act 1984; s.76(ii). It is not, however evidence against any other person implicated in it (Rhodes (1959) 44 Cr. Appl. R. 23), unless it is made in the presence of that person and he acknowledges the incriminating parts so as to make them, in effect, his own.----"
There is no doubt at all that the admission made by each accused in this case to the Police is evidence against him alone. I appreciate the danger of leaving the Questions and Answers objected to by the Defence to the Assessors, nonetheless these questions are relevant to the Prosecutions case.
While I acknowledge that this court has the discretion to withhold these Questions and Answers from the Assessors if it is in its opinion the prejudicial effect outweighs its probative value it is also true that the Court also has the discretion to admit evidence if in its opinion the probative value outweighs the prejudicial effect.
I've taken pains to peruse the statements of the accused persons thoroughly and considered the prejudicial effect and the probative value of the evidence in question, in the light of the authorities cited, and I find that the probative value of the evidence in question outweighs its prejudicial effect, and in the exercise of my disc-action, I will allow the Prosecution to read the questions and answers objected to to the assessors, and I so rule.
S W Kepa
JUDGE
14th May, 1993.
HAC0006D.92S
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