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State v Tuiyanawai [2005] FJHC 130; HAC0022D.2004S (10 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 OF 2004S

STATE

v.

SAMISONI TUIYANAWAI;
SEMISI WAINIQOLO;
SOLOMONI BOINI; and
MOSESE YACO

Hearing: 7th June 2005
Ruling: 10th June 2005

Counsel: Mr. W. Kuruisaqila for State
All Accused in person

RULING ON VOIRE DIRE

The 1st, 2nd and 3rd Accused persons object to the admissibility of their statements to the police. The basis of their objections can be listed as follows:

1st Accused – Oppression on the ground that he was interviewed when he was ill and kept in custody for 5 days. Also threats made to him by the interviewing officer that he would be coerced by a group of police officers.

2nd Accused – Fabrication of his caution interview and forgery of his signature.

3rd Accused – Assault by banging his head during arrest, and further assault of Constable Remesio during arrest and at the police station.

The 4th Accused did not object to the admissibility of his interview.

The test for the admissibility of all police confessions is that they must be shown by the prosecution to be voluntary and not obtained by oppression, or unfairness, or by breaches of Constitutional rights.

The preamble to the Judges Rules states:

“It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statements that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression.”

Oppression is anything that undermines or weakens the exercise of free will. The onus of proving voluntariness, fairness, and lack of oppression, is on the prosecution and they must prove these matters beyond reasonable doubt. Further, if there has been a breach of any of the Accused’s Constitutional rights, the prosecution must prove that the Accused persons were not thereby prejudiced.

The interviews

The 1st Accused was arrested by the police at 9.10am on the 12th of June 2003. He was kept in the Central Police Station Crime Office until his interview commenced at 12 midday on the same day. He was interviewed in the English language by Detective Corporal Viliame, after he was told of his right to silence and to counsel. He waived both rights and gave a statement saying that he was an employee of the Armourguard Company. The interview was suspended at 1.20pm for lunch and resumed at 2.20pm. Shortly after that suspension, he told the interviewing officer that he was prepared to tell the truth. He then confessed to planning a robbery with one Samuela Waqa and one Bill Are. That first plan was not executed. At 5.40pm the interview was suspended for dinner and rest. After the interview resumed, he gave further details of the second plan, to rob the Westpac Bank on the 5th of June 2003. He named his co-conspirators and said that he received $9,400 as his share.

The interview was suspended at 9pm for a search of his house, and resumed at 10.20pm. During the search the sum of $7,000 was found at his house. At 12.45am the interview was suspended for the night. He was apparently taken to another police station for the rest of the night.

The interview recommenced at 11am on the 13th of June and concluded at 12 midday. The interviewing officer D/Cpl. Viliame denied under cross-examination that the 1st Accused was ill during the interview, and that he had made threats to him. He said that the interview was given voluntarily and not under oppression.

The 1st Accused himself gave no evidence, and of course no adverse inferences can be drawn from his silence. However, having considered the evidence of Cpl. Viliame, his demeanour, the way in which he recorded the interview, the suspensions and the evidence of breaks for rest and refreshment, I have no doubt at all that the 1st Accused gave his interview of his own free will and not as a result of oppression. I am satisfied beyond reasonable doubt that the 1st Accused was given his Constitutional rights and that he waived them freely and voluntarily. I am also satisfied that he was not verbally abused by Cpl Jitoko, and ex-Cpl Remesio, and that he was not ill whilst being interviewed.

His caution interview may be led in evidence. He also challenged the admissibility of his charge statement, and because the charging officer is now in Kuwait and could not tender the statement, I refused to allow the prosecutor to tender it.

The 2nd Accused was interviewed from 9am on the 24th of June 2003. He was told of his rights by D/Cpl. Jitoko Filipe and he said he wished to communicate with his son and his sister. He was allowed to do so. He also asked to contact a solicitor by the name of Razak, who worked for the Fiji Development Bank. When Cpl. Jitoko checked with the Bank he was told that the lawyer’s name was Mr. Sharma and that he was not in Suva, but was in Lautoka. The Bank refused to release the solicitor’s mobile telephone number. He did not tell Cpl. Jitoko that the interview could proceed in the absence of his solicitor, but the interview did in fact proceed. He denied involvement in the robbery, giving as his alibi, the name of one John Heatley with whom he said he was at the Club 2000. He admitted receiving the sum of $62,000 from an unknown person who told him that this was his share from the Westpac robbery. $61,000 of this money was seized from the 2nd Accused’s house. He agreed that he knew the money was stolen and that he had taken no steps to inform the police.

The interview was suspended at 11.15am for tea and at 1205pm for lunch. It resumed at 1225pm. It was suspended for the checking of his alibi with John Heatley at 3.25pm. It resumed at 9.45am on the 25th of June 2003 and was suspended at 11.10am for a drink of water. At 1pm he was given lunch. Towards the end of the interview he was questioned about being in possession of marijuana and he confessed to that. The interview was concluded at 7.18pm. He was charged but the prosecution does not seek to tender the charge statement. Throughout his interview he maintained a denial that he took active part in the robbery.

The 2nd Accused said initially that the interview was false and fabricated, and that his signatures were forged. However, during the evidence of Cpl. Jitoko he changed his position and admitted that the record was accurate but that he was not feeling well whilst being interviewed and that he had been assaulted. This was denied by Cpl. Jitoko.

The 2nd Accused did not give evidence as of course, was his right. I have considered the evidence of Cpl. Jitoko and I accept that there was no oppression or assault on the 2nd Accused. I am satisfied of that beyond reasonable doubt. I am satisfied that the interview was voluntary.

I am however troubled by the length of it. It commenced on the 24th of June at 9am and did not conclude until 7.18pm on the 25th of June. A great deal of time was spent on attempts to contact a solicitor, and there was a break for tea and another for lunch. Further he was given a rest overnight and the interview the next day did not commence until 9.40am. It then continued until lunch, and then until 7pm when the interview was concluded.

I consider however that the Accused was not oppressed by the length of the interview. There were adequate breaks for refreshments and he maintained his denials as to involvement in the robbery itself.

Further, although he did not waive his right to a solicitor at the beginning of the interview, he did so when he was interviewed in relation to the possession of the dangerous drugs, and he remained constant in his denials throughout the interview. He remained unrepresented after charge, and is unrepresented at this trial.

I am therefore satisfied beyond reasonable doubt, that the Accused’s interview was not obtained as a result of oppression or of Constitutional breaches. Further, although he alleges that the questions put to him about his alibi were unfair, and that the police forced John Heatley to deny the alibi, I cannot accept his submission in that regard. John Heatley, who gave evidence for the 2nd Accused, admitted that he had given a statement to the police about the alibi, but said that it had been obtained from him by force. If such a statement existed, then the interviewing officer was entitled to question the Accused about it. Whether or not John Heatley was forced to make the statement is a trial issue, but at this stage, it does not reflect on the fairness of the 2nd Accused’s caution statement.

The caution statement may be admitted in evidence.

The 3rd Accused alleged assault at the time of arrest by ex-Cpl. Remesio, and at the police station by a number of police officers including Cpl. Jitoko. His interview commenced at 5.40pm on the 20th of June 2003. He was told of his right to silence and to a lawyer. He waived these rights. He admitted being part of the group which robbed the Westpac Bank.

At 7.40pm the interview was suspended to give him a cup of coffee. It resumed at 7.55pm. It continued until 9.25pm to allow him to sleep. It resumed the next day on the 21st of June 2003 at 8.35am. He continued to tell the interviewing officer how the robbery had been conducted. At 10am the interview was suspended for coffee and the toilet. It continued until 1120am for lunch and was suspended again at 12.15pm when his wife also brought him lunch. He spoke to her until 1255pm when the interview resumed. At 2.35pm his house was searched. The interviewed resumed at 4.35pm and continued until 5pm. At 5.30pm it continued until completion at 5.40pm. He was charged on the 21st of June at 5.42pm by DC Kalaveti. He made an inculpatory statement on being charged.

While cross-examining Constable Sitiveni Druma (the interviewing officer) the Accused suggested to him that he had been assaulted and that the officer had rubbed chillies on his anus. This allegation was not part of the 3rd Accused’s initial allegations, and they were strenuously denied by Constable Druma. Ex-Corporal Remesio, who was called as a witness by the 3rd Accused, denied any form of assault on the Accused.

The Accused gave sworn evidence that he was assaulted on arrest and at Lami Police Station. He said that Constable Druma had threatened to rub chillies on him and that he was injured when he was interviewed. He called a witness, Aisea Volavola, his cousin. He gave evidence that on some day , possibly in 2000, he saw the 3rd Accused being arrested at home by police officers and saw him being assaulted at the time of the arrest. He saw him being taken away, calling for help, in a police vehicle, at about 4am. This evidence does not necessarily corroborate the Accused’s evidence because it may be about some other incident in 2000. Further, he is unable to name any of the officer’s which might have assisted us in determining what incident he gave evidence about. I do not accept that his version of events assist the 3rd Accused.

It is unfortunate that a trial judge is forced, at the voire dire, to make findings on credibility on collateral issues, when the substantive issues are still to be tried. However, this situation cannot be avoided. Having considered the demeanour of the witnesses, and of the allegations put to the police officers who interviewed and charged him, I am satisfied beyond reasonable doubt, that the 3rd Accused’s interview was obtained voluntarily and not by unfairness or oppression. I am satisfied beyond reasonable doubt that there was no assault or threats.

I find that the 3rd Accused statements, under caution and after charge to be admissible in evidence.

Conclusion

The caution interviews of each Accused person and the charge statement of the 3rd Accused, are all admissible in evidence.

Nazhat Shameem
Judge

At Suva
10th June 2005