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IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 006 OF 2000S
STATE
-v-
WATISONI BAINIVANUA
Mr F. Vosarogo for the State
Accused in Person
Hearing: 7th & 8th June 2001
Ruling: 8th June 2001
RULING ON VOIR DIRE
The Accused objects to the admission in evidence of his statements to the police on the grounds that he was assaulted by police, and
forced to sign the statements. As a result of his objections, a trial within a trial was held in the absence of the assessors. The
prosecution called 7 police witnesses who gave evidence as to the time and circumstances of the accused’s custody at the Raiwaqa
Police Station, and of the taking of his statements under caution. The accused gave evidence on oath, and called one witness.
As a matter of law, a confession made by the accused to the police, is a statement made to a person in authority. As such, the statement
is only admissible if the prosecution has proved that it is voluntary, and that it has not been obtained by hope of advantage, or
fear or by oppression. The prosecution must prove admissibility beyond reasonable doubt. Breaches of Judges Rules are relevant to
the question of admissibility but the overriding principle is that of voluntariness.
It is not necessary to traverse in detail the evidence of each witness. Suffice it to say that the evidence of the prosecution is
that the accused was brought in for questioning in another matter, by the police at Raiwaqa Police Station, on 25th March 1998 at
7.40pm. He was locked in the cell, and was interviewed by police officers at 8am on the 26th of March. He was locked up again in
the cell at 8.40am. He was then interviewed for this case from 7.35pm on the 26th. At 9pm the interview was suspended, and resumed
the next morning starting with a reconstruction at Rups Investments in Raiwaqa. The interview ended at 10.30am and a charge statement
was obtained immediately thereafter.
There can be no doubt at all, that whilst the accused was at the Raiwaqa Police Station, he was in custody. He was locked in the cell,
and was not free to go home. The question of the voluntariness of the statements must therefore be considered from the position of
a person in police custody.
He was interviewed by DC Malakai Seru from 7.30pm on 26th March 1998, in the Raiwaqa Police Station Crime Office. The interview included
a reconstruction of the scene at Rups Investments at Grantham Road, on the morning of the 27th of March.
The reconstruction took place before 9am. The interview resumed at 9am and five questions later, it came to an end. There is no recorded
time for the termination of the interview. However the Accused was taken back to the cell after he was interviewed and charged. He
was taken to the courthouse at about 2pm the same day.
The Accused was charged by DC 1877 Daveta, between 10.30am and 10.50am, immediately after the conclusion of the interview.
In both his caution statement and his charge statement, the Accused made incriminatory statements.
The accused alleges assault and oppression. In particular he alleges that he was assaulted whilst in custody, that he complained about
his injuries, and that DC Malakai forced him to make a statement. He alleges that DC Daveta, the charging officer, also assaulted
him on his hands, with a stick. These allegations were all denied by the officers concerned.
On oath, the accused said he was picked up in Raiwaqa by police officers in a van, while he was on his way to a grog party at about
6pm on the 25th of March. He said he was forced into the van and handcuffed. At the Raiwaqa Police Station he was made to sit on
the floor, and he was beaten by 15 policemen none of whom he could identify. He said that he was accused of taking part in a lot
of cases including this one. He was locked in a cell, and released the next morning. He was then taken to the Crime Office where
he was beaten again by DC Malakai and DC Daveta with another police officer. He said that they fabricated the statement and the charge
statement and that he finally signed the statements out of fear.
He said that the statements were made up by the police from information they received from Taniela. He said that at the reconstruction
of the scene (the time of which he could not recall) the police showed him the place where the robbery occurred. He said he was taken
to court at 3pm on the same day with a number of injuries.
He said he complained to the Magistrate who ordered a medical check-up, but that he was never allowed to go to the hospital. He said
that on his release from custody 2 weeks later, he did not see a doctor but instead opted for traditional massage. He said he went
to the x-ray department of the hospital 2 months ago as proof that he had a broken rib but that he has not been given the x-ray report.
He was vigorously cross-examined by State Counsel.
Under cross-examination he said he had also complained to the Ombudsman, and agreed that he had not put to DC Malakai and DC Daveta
that they had fabricated his interview and charge statements.
Defence Witness 2 Josefa Baleloa, is a serving prisoner who gave evidence that on the 25th of March 1998, he had been in a cell at
the Raiwaqa Police Station, when the accused was brought in. He said he saw the accused being severely beaten by police officers
in the reception area and in the cell. He said that he was beaten in the cell again the next day. He himself went to court at 9am
on the 26th. Under cross-examination DW2 was unable to remember the details of the incident but said the accused had been taken to
the Crime Office where he had also been beaten. He agreed that he had forgotten all about the case until the accused had refreshed
his memory this morning before he gave evidence.
After considering all this evidence, and after directing myself that the burden of proving voluntariness and admissibility is on the
prosecution, I am satisfied beyond reasonable doubt that the police officers at Raiwaqa Police Station acted properly in the custody
and interview of the accused. I find no breaches of the Judges Rules and am satisfied that the circumstances of the accused’s custody,
which was admittedly long (41 hours in total) included plenty of time for rest and refreshment. I am satisfied that the interview
and the charge statements were both given by the accused voluntarily without fear of threat or violence, and without hope of advantage.
I am also satisfied beyond reasonable doubt that the circumstances in which the interview was taken were not oppressive and that
no assault was inflicted on the accused at the Raiwaqa Police Station.
I found the prosecution witnesses to be consistent and credible, and I accept their account of events on the 25th, 26th and 27th of
March 1998. As to the Defence case I find material discrepancies in the evidence, and no consistent medical evidence confirming the
injuries allegedly caused by the police on the accused.
The prosecution may lead evidence of caution and charge statements.
Nazhat Shameem
JUDGE
At Suva
8th June 2001
Hac0006d.00s
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