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State v Kuruvoli - decision on voir dire [1995] FJHC 96; Hac0002d.95s (22 May 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0002 OF 1995

Between:

STATE

And:

JOELI KURUVOLI
IOBE TAKALA
APEMELEKI APARAKI

Counsel: Mr. MacNaughtan for State
Mr. Veretawatini for Accused

Voire dire Hearing: 19 and 22 May 1995
Decision: 22 May 1995

ORAL DECISION OF PAIN J. ON VOIR DIRE

Accused No.2, Iobe Takala, has challenged the admissibility of statements alleged to have been made by him in a caution interview on the 1st February 1993 and on being charged on 23rd September 1993. Evidence has been heard and Counsel submissions made on a voir dire conducted in the absence of the assessors.

Having formed a clear view on the issues, I intend to give an immediate ruling so that the trial can proceed without further delay. In doing so this oral decision may not deal with every piece of evidence and every submission of counsel.

However I have taken them all into consideration. This ruling, at this stage of the trial, dealing with credibility of witnesses is limited to the matters in issue on the voir dire and essential for determination of those issues.

At the commencement of the voir dire, counsel for the accused advised that the challenge to the statement was made on the basis that it was not a voluntary statement. It was induced by threats to the accused that he would be held in custody if he did not confess. In his submissions, counsel has confirmed that this remains his predominant and substantial ground.

In determining this issue of voluntariness, I have been guided by the principles set out in the Court of Appeal decisions of Ganga Ram & Siu Charan v R (Cr. App. No. 46 of 1983) and Kamlesh Lata v R (Cr. App. No.71 of 1983).

The evidence given has been relatively extensive covering in detail the events leading up to the accused's statement being taken. However, the issues come within a narrow compass. The defence submits that the accused was forced to make the statement by threats by the interviewing officer. It is alleged that this officer told the accused not to deny that he was involved in the offence and that he had power to hold the accused in custody until the accused was taken to court. The accused did not give the statement freely because the officer was threatening and the accused believed he would be held in custody if he did not cooperate.

The prosecutor submitted on the basis of the Director of Public Prosecution v Ping Lin 1976 AC 574 that a two pronged approach is involved. The Court must consider whether the conduct complained of was capable of exciting fear in the suspect and, if so, then whether it did operate to make him confess. However, this case requires a preliminary determination before such issues become relevant. That is, whether such threats were in fact made. This is denied by the prosecution.

The onus falls squarely on the prosecution to prove beyond reasonable doubt that the accused's statement was given voluntarily. To do this the prosecution relies principally on the evidence of the interviewing officer, Detective Corporal Eroni Soqo. Evidence has also been given by other Police Officers who were in the room in support of the prosecution case. These witnesses and particularly Corporal Eroni say that no threats were made. The onus is on the prosecution to prove that.

In addition to the four Police Officers, the accused himself gave evidence. There is considerable conflict of evidence between the witnesses. This is particularly so as between the accused and Corporal Eroni. It also occurs between the accused and other Police witnesses and there are discrepancies in the evidence given by the Police Officers themselves. However some historical matters leading up to the interview are beyond dispute.

The accused had previously made a statement to the police which made no admission that he had been involved in any attack on the deceased. The police subsequently interviewed a witness or witnesses who implicated the accused. It was decided that the accused should be interviewed as a suspect.

On the 1st of February 1992 he was taken to the Nausori Police Station by Corporal Eroni. There is a dispute as to whether the other accused and some witnesses were also taken to the Police Station at that time. There is also some dispute as to what actually occurred after the accused was taken to the Police Station. Unfortunately, the accused's version of many of these matters was never put to Corporal Eroni in cross examination. However, it is beyond any dispute that the accused was acquainted with the fact that other witnesses had implicated him in the assault. Constable Eroni said that this was done by confronting the accused with those witnesses. The accused said it was by Corporal Eroni advising him about the witnesses statements.

The interview was conducted in the Nausori Crime Office. The accused and Corporal Eroni were seated at a table on one side of the room. Other people including other police officers in the investigation team were at a table on the other side of the room drinking yaqona.

The vital issue on the voir dire is the nature of the interview that then took place. There is a complete conflict of evidence between the accused and Corporal Eroni. The other Police Officers who gave evidence are of minimal value on this issue. They say that they did not see or hear Constable Eroni make any threats to the accused. However none of them was witnessing the interview in the sense of standing by, observing and listening. To them the interview was proceeding regularly although they could not hear what was actually being said.

Sergeant Eroni gave evidence of the interview being conducted in accordance with normal police procedures. He said that the usual cautions were given and the accused signed the statement in various places to confirm this. The accused elected to give a narrative of events and after that Corporal Eroni asked him questions. The narrative, questions and answers were all recorded in the statement. They were read over to the accused. He acknowledged that they were correct, had nothing to add and signed the statement. Corporal Eroni said that the accused was completely cooperative and no threats were made to him. Under cross examination he specifically denied that he had "threatened the accused to comply or he would be in custody for the whole of the proceedings".

The accused gave evidence. He said that he was never given any explanation about his rights. Sergeant Eroni merely told him that he had statements from people who saw him involved in the incident. His evidence then proceeded: "He told me not to deny it. If I do he has the power to remand me until I am taken to Court. He was looking into my eyes and speaking to me harshly. It was getting late. I knew that he was telling the truth. I knew that if I made it difficult for him I would be remanded". He later said, "I did not give the statement freely because the officer was threatening in the way that he said he had powers to remand me until the case is called in Court. After that threat I gave the statement. That was not long after the threat". He also said that he was scared throughout the statement. He was not told that he could add or alter anything and it was not read to him. He said that he signed the statement because Corporal Eroni told him to sign and he was obliged to do what the Corporal said. Again a good many of these matters were never put to Corporal Eroni in cross examination.

There was a direct conflict of evidence between Corporal Eroni and the accused regarding the conduct of this interview and whether any threats were made to the accused. The onus is on the prosecution to prove that they were not made.

I have carefully considered all the evidence given on the voir dire. I observed the demeanour of Constable Eroni and the accused in the witness box and their answers under cross examination. I have not overlooked the fact that Corporal Eroni is an experienced Police Officer and the accused is a villager who is not accustomed to giving evidence. Nevertheless on the crucial issues relating to the interview, I unhesitatingly accept the evidence of Corporal Eroni and reject that of the accused.

On this issue of credibility, I have been influenced by a number of matters. It is appropriate that I should record some of these.

A very significant matter is the inconsistency in the accused's evidence. He radically changed his story in the course of giving evidence. In evidence in chief, he said that he was told that the questions put to him should be answered with the word, yes. He was told this throughout the interview and Corporal Eroni was writing all the time. Under cross examination, he confirmed that he did not tell the Corporal what is recorded in the statement. The Corporal told him those things and he just answered, yes. The statement has two parts. The first part is in narrative form and the second comprises questions and answers. State Counsel then put to the accused specific matters stated at the beginning of the narrative part of the statement. The accused confirmed that Corporal Eroni had said those things to him, and he had replied, yes. When asked how Corporal Eroni would have known about those matters, he said that the Corporal must have assumed what took place or got the information from other witnesses. As this line of questioning continued the accused's evidence became more implausible. Constable Eroni could not have known all the matters recorded in the statement. The accused then changed his story and said that Corporal Eroni asked him to explain what happened. He gave this explanation and Corporal Eroni wrote it down. He said that this continued until near the end of the narrative but he did not say the last few sentences. Not surprisingly these sentences in the narrative contain admissions. In further cross examination, he agreed that Corporal Eroni asked the questions and he gave the answers that are recorded in the remainder of the statement. Significantly these answers contain information regarding the incident which go beyond the portion of the narrative alleged to have been compiled by Corporal Eroni.

I have given this lengthy explanation to show the very significant change made by the accused in his testimony. Initially he swore that all the statement was compiled by Corporal Eroni and he merely answered yes to the matters put to him. Finally he agreed that virtually all the narrative was given by him and he gave all the answers to the questions that follow in the statement. That evidence was then in complete agreement with the evidence given by Corporal Eroni except for the very small portion of the statement that the accused said was compiled by the Corporal. This change of sworn testimony was particularly damaging to the accused's credibility on issues arising on the voir dire. I must say that the cross examination completely discredited the accused.

I will quickly traverse some of the other matters relevant to credibility.

Corporal Eroni impressed me as an experienced detective. He certainly did not compose the statement as first alleged by the accused. It is most unlikely that he would have ignored proper police practices regarding warnings and other matters as alleged by the accused. Indeed the statement itself with the accused's signature in numerous places is confirmatory of correct procedures being followed. The accused's rejection of the Corporal's evidence of following normal procedures for an interview is quite implausible.

The evidence satisfies me that the accused received hospitable treatment from the police. There was an atmosphere of cordiality in the room where the interview took place. The accused was fully cooperating. There was no reason for Corporal Eroni to threaten the accused in the manner alleged. Indeed, as Counsel for the accused pointed out, on Corporal Eroni's evidence, the accused had already made a verbal admission of involvement.

The accused said he reached only Form 6 at school. He had never been to a police station and never made a statement before. He said that he was scared during the interview.

However the atmosphere in the Crime Office and hospitality he was given, should have put him at ease. Moreover he had earlier made a statement to the police about this matter.

Also in giving evidence he showed a knowledge of such procedures as remand, being bound over and suspended sentence. He was not as naive or experienced as he would have the Court believe.

Detective Const. Petero Aniti was present as witnessing officer for the interview. I found him a reliable witness. He was in the Crime Office all the time the accused was there. He confirmed the evidence of Corporal Eroni regarding the general sequence of events. He observed the interview taking place and saw the accused signed the statement. He did not sign the statement as a witness. However it is clear from his evidence and the evidence of the other police witnesses that the accused was cooperating and the interview appeared to be proceeding in a completely normal manner. They observed nothing to alert them to any concerns of the accused.

I do not propose to traverse any further aspects of the evidence. As I earlier said I reject the evidence of the accused that he was threatened by Corporal Eroni that he could be held in custody and it was under the burden of this threat that he made a statement. I accept the evidence of Corporal Eroni. His evidence, together with the testimony of the other police officers satisfies me beyond reasonable doubt that the accused was not threatened and voluntarily made his statement.

In his final submissions, Counsel for the accused made submissions regarding the police procedures and Judges Rules. He submitted on the authority of R v Sang 1990 AC 402 that the statement should be excluded because its prejudicial effect outweighs its probative value. I take this to be a submission under the second broad ground upon which a confession may be excluded, namely that it was obtained unfairly.

Counsel submitted that there was a breach of the Judges Rules because the accused was not cautioned during the substantial period from when he was taken by the police from his village until he was subsequently interviewed. I interpolate here that long delays are common place and tolerated in this community and the accused was treated considerately and given food and drink over that period. However the Judges Rules impose no obligation on the police to caution during that period. Rule 2 requires the caution to be given before any questions are put to the suspect. I am satisfied that this was done by Corporal Eroni before the interview commenced.

Counsel also suggested that a confrontation of a suspect with the evidence or statements of witnesses before interview is not a proper practice. I disagree. It is quite in order for a suspect to be acquainted with the details of the allegations made against him. In this case that may have been done in a rather graphic way. But the accused was then warned that he was not obliged to make a statement. There was no unfairness.

Counsel also referred to police procedures and particularly the failure of police officers to note certain events in their notebooks and to have those notebooks available. Those are matters of comment in relation to their testimony but do not constitute unfairness in the taking of the statement.

I find no unfairness on the part of the police in this case that would call for the exclusion of the statement.

No specific evidence was given on the voir dire alleging that the charge statement made by the accused was induced by threat or as otherwise not voluntarily given. Nor was there any challenge to the procedures for charging the accused. Sometimes in these cases the reasons for declaring a caution statement not to have been voluntarily made are, in fairness, extended to cover the charge statement as well. However in this case the caution statement is proved to have been voluntarily made. The evidence of Constable Petero Aniti and Corporal Eroni, which I accept, proves that the statement made by the accused when charged, was completely voluntary and there was no suggestion of any unfairness.

Accordingly, I rule that both the caution statement made by the accused, Iobe Takala, on the 1st of February 1993 and the charge statement made by him on the 23rd September 1993, are admissible as part of the prosecution case in this trial.

JUSTICE D.B. PAIN

HAC0002D.95S