IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC044 OF 2004S

THE STATE

V

SIMIONE KAITANI and 3 Others

Gates J.

Ms A. Prasad with Ms V. Lidise for the State
Mr I. Khan for Accused, 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]
Mr Rabo Matebalavu for Accused 4 [Lewaqai]

19th July, 25th July 2005

RULING NO. 5

Admissibility of alleged confessional statements, voir dire; denied right of access to lawyer; breach of Judges Rules; excessive time in custody prior to interview; oppressive circumstances; voluntariness to be proved affirmatively beyond reasonable doubt; whether in custody at time of interview; whether Accused understood the gist of the charge; whether improper cross-examination; Admissibility of charge statements; further example of admitted signatures; role of handwriting expert; role of assessors to make own comparison; extent of demonstration and guidance of expert; little probative value.

[1] 	This ruling together with all of the proceedings in the trial within trial to determine the admissibility of alleged admissions is not to be published in any form until the conclusion of the trial.

[2] 	The impugned admissions were said to be have been made by the Accused in caution interviews with police investigators. The State seeks to have these interview statements admitted together with their respective charge statements.

[3] 	Challenge is made to the caution interview statements on several grounds. Inter alia it is claimed that the Accused separately were not accorded their rights as detained persons under the Constitution, denied access to a solicitor, interviewed in breach of the Judges Rules, kept overlong in custody, and treated in an oppressive manner.

[4] 	The State adduced evidence through six witnesses. The defence evidence comprised unsworn statements from the dock in all 4 cases. No other evidence was called.

[5] 	The State must establish beyond reasonable doubt that the confessions were made voluntarily. The Accused’s claims of involuntariness must be negated, and it must be proved affirmatively in each case that their statements to the police were given freely and voluntarily: Thompson [1893] 2 KB 12; Ibrahim v The King [1914] AC 599 at pp.609, 610; R v McCuin [1982] 1 NZLR 13 at p.15. 

[6] 	At the close of evidence in this trial within trial, I have been assisted by counsel who have made submissions both written and oral, and who have referred me to several cases of relevance. I deal first with the caution interview statements and with each Accused in turn.

Accused 1 [Kaitani]

[7] 	Accused 1 said in his unsworn statement he was at a great loss as to knowledge of his constitutional rights. He was also in fear as to how to deal with the experience of an interview. The issue of the charge he now faces did not arise in the first interview at all. He did not fully understand the charge anyway. He maintained he had denied the charge, which he still does. He felt the interviewing officer was trying to get him to admit that he took the oath.

[8] 	Mr Khan submitted that his rights to counsel or to legal aid counsel were not put to him at his house or at the police station. Accused 1 was also cross-examined during the interview in breach of the Judges Rules.

[9] 	DC Jemesa Luvena gave evidence that he went to Accused 1’s house on 29.4.01 to interview the Accused. After he was located, Accused 1 came to the station himself by his own transport. He preferred to be interviewed at the back of the main Lautoka station. No doubt this was done to avoid embarrassing publicity for the Accused. DC Jemesa was willing to approve that arrangement. The Accused was interviewed in the police bure. His arrival at Lautoka Police Station was not recorded in the station diary as it should have been. This irregularity was minor in this case and may have been associated with the more favourable treatment given to Accused 1.

[10] 	As for according rights to counsel, DC Jemesa is recorded as saying at the commencement of the questioning:

Q4. 	You are also advised that you have the right to consult your solicitor or otherwise you may consult one under the Legal Aid Scheme. This consultation will take place here. Do you understand?

A.	If any need arises then I might consult one."

[11] 	At that stage Accused 1 remained at the station voluntarily. Had he not come voluntarily, DC Jemesa said he would have arrested him. At the end, Accused 1 was free to go, and he returned home. He was not under arrest or under any de facto arrest.

[12] 	Section 27(1) (c) of the Constitution reads

"27. (1) Every person who is arrested or detained has the right:

(c)	to consult 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 require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;"

[13] 	Though Accused was neither detained nor arrested, it was nonetheless correct that he be offered the right to consult his counsel of choice or to seek legal aid prior to the interview. The question put to a person about to be questioned by investigators should follow the wording of the section as closely as possible in order to provide the full extent of the right provided by the Constitution. It might best be broken up into two questions, one for the right to counsel of choice and one for the opportunity of seeking legal aid, if he could not afford his own lawyer.

[14] 	It is clear from Accused 1’s answer that he fully understood his right in this regard, and that he could break off at any time to consult a lawyer if he needed to do so. He waived his right to have a lawyer present with him.

[15] 	He was cautioned concerning allegations of involvement in the planning process of the 19th May 2000 coup. He appears to have spoken thereafter quite freely. He insisted he never took the oath of allegiance. This statement does not amount to a clear admission, but I see nothing unfair in it being used in evidence on the taking of an oath charge. No trick was being played on Accused 1.

[16] 	The officer said he read back the statement phrase by phrase at the time of recording. Accused 1 did not want the whole statement read back again at the end. There was no cross-examination in this interview. There was no oppressive conduct directed at Accused 1.

[17] 	Accused 1 was next interviewed by D/Cpl Mesake Waqa on 24th June 2003. he was cautioned and informed that it was to be a questioning about the establishment of a new government under a new President and about his having taken an oath to be part of that illegal government.

[18] 	This was his second interview. He was reminded again of his right to consult a solicitor. This reminder was appropriate because of the length of intervening time after the previous interview. Accused 1 said he understood the allegation. It was not spoken out in the formal technical language of the present charge, a mouthful that would have sent many an experienced lawyer to scuttle off in search of their law books. However the gist of the allegation put was clear enough, namely the taking of an oath upon appointment to an illegal government. It was sufficient to alert Accused 1 as to what the interview was about.

[19] 	Accused 1 wanted to consult a solicitor. He was allowed to telephone a lawyer. He then requested if he could go and look for another lawyer and come back. He was allowed to do so, and the interview was recommenced the next day in the presence of that other lawyer. This, the second interview, was conducted with his lawyer present throughout.

[20] 	An interviewer is not bound to accept any answer an interviewee may make. But at the same time questions should be put fairly and without oppression. The circumstances of the interview overall appear to have been fair. Neither Accused 1 nor his lawyer objected then or later about the manner or content of the questioning. I do not find there was cross-examination of the interviewee, or that the answers were robbed of their essential voluntariness, or that Accused 1 was tricked into making admissions by ambush. He was occasionally pressed on matters and later he changed his position during the interview. That much is permissible. I find the circumstances overall were fair to Accused 1, and not oppressive. I hold that both caution interviews of Accused 1 were voluntary and that they should be admitted.

Accused 2 [Tonitonivanua]

[21] 	Accused 2 said in his unsworn statement that he did not take the oath or sign the oath. He said his house was raided four times by the police and the army. He provided no details nor link this statement to the taking of the caution interviews. He was brought to Suva twice. He felt sorry for his family for what had happened. He denied being allowed his right to counsel. He said he was handicapped by not knowing the law.

[22] 	D/Cpl. Mesake testified that Accused 2 was requested to come to Nabua Police Station and he came by himself to the station. This was for the first interview on 17.4.01. The interview commenced at 11.50 hours and was suspended at 1300 hours to allow Accused 2 to take his wife to hospital. The interview was resumed 2 days later on 19.4.01 at 10.20 hours. 

[23] 	The interview was conducted in Fijian. Accused 2 was allowed a chance to consult his solicitor and told if he could not afford one, he could consult a solicitor under the legal aid scheme. He said he understood, but said he did not have a lawyer. He had properly been accorded his rights but did not avail himself of them nor of the use of the telephone which was offered to consult one. In view of the fact that the interviewer had allowed the interviewee to break off the interview for personal reasons, it is unlikely that he would have refused to facilitate access to counsel and to advice, if Accused 2 had said he wanted such help before proceeding with the interview.

[24] 	The second interview of Accused 2 was taken on 2.7.03, again at Nabua. The allegation brought to his attention was that he had taken an oath to be a member of an unlawful government. Some questions he answered in the negative and some positively. At the time, Accused 2 was 48 years old, describing himself as a farmer, educated up to form 4 and as a former Member of Parliament. Cpl Mesake said Accused 2 was a former police officer who would have understood his rights. On neither occasion was he in custody. However constitutional rights of this nature are to be put routinely irrespective of the rank or experience of the interviewee.

[25] 	In this interview Cpl Mesake said he forgot to include the right to apply for legal aid if he lacked means to engage his own lawyer. He had referred to his right to consult a solicitor of his choice. The full rights in this regard should have been put when carrying out a follow up interview, particularly where the second interview was more focused on a specific offence than the first had been: R v Tawhiti [1993] 3 NZLR 594.

[26] 	However I am not convinced this Accused would have availed himself of the opportunity to consult a legal aid lawyer. I notice in questioning he appeared to hold his own against the interviewer. Similarly no traps lay hidden in the questions. He was treated fairly and without oppression. I hold both of Accused 2’s caution interviews to have been voluntary and I admit them.

Accused 3 [Sausauwai]

[27] 	Accused 3 similarly denied in his unsworn statement that he had taken the oath or signed for it. At the time when his first statement was taken he said he was still injured. This had occurred at the takeover he said, presumably this was of Kalabu, where those who had occupied Parliament had resorted to. He was in custody therefore at the time of the interview. He says he was detained on 27th June 2000, and this interview was conducted on 2nd August 2000. It was held at CID Headquarters at Vanua House.

[28] 	Accused 3 says he admitted to everything that was put to him. He said he did so since he was arrested and because he was injured. He said he was not given any time to look for a lawyer.

[29] 	D/Cpl Joseph Low was the interviewer. He testified that he came into the Assistant Commissioner’s conference room on the morning of the interview and Accused 3 was already there. There were just the two of them; no prison guard was present. On the reason for his prior custody Cpl Low said he knew Accused 3 had been in custody for 7 days but that he had been charged for incest and other charges. He did not know whether he had been taken to court for those offences. Accused 3 did not seek to rebut this evidence in his unsworn statement. However I bear in mind the length of time he had spent in custody prior to the interview.

[30] 	After his rights to a lawyer were put to him and he was asked if he wished now to consult one, he replied:

"We have a lawyer and arrangements have already been made to meet him when we are taken to court."

[31] 	If this were said, he was unequivocably waiving his right to a lawyer for consultation prior to the interview’s commencement and for having him present at the interview. Accused 3 was then a 48 year old who had the advantage of tertiary education from the Fiji School of Medicine. He had been an acting head of the bio-chemistry department at the Lautoka Hospital. He also said he had been a parliamentarian for a month.

[32] 	The interview was broken off to allow Accused 3 to have his lunch. When the interview resumed, it appeared to flow easily. Some of the answers he gave did not necessarily follow from the questions and he volunteered a good deal of information. There is no record of his injury and he did not elaborate on it. In spite of the length of time in custody for the other matters, which may or may not have proceeded to court, I am satisfied to the requisite standard that Accused 3 gave his answers in this interview voluntarily.

[33] 	He was interviewed by the same officer at Korovou Prison on 9.6.03. This time he was asked after the preliminaries and caution were dealt with:

Q4: 	Before we continue into the interview, do you wish to have a solicitor present.

A: 	No it is alright.

[34] 	Accused 3 then answered questions along similar lines, though more detailed, than in the first interview. In both cases he had made clear admissions in regard to the oath taking. A lawyer at this stage might not have made much difference because of what Accused 3 had already said in the first interview. It is proper though that interviewers should facilitate rights and avoid short cut procedures. However I am satisfied all of those answers were given freely and that Accused 3 co-operated with the police in the interview voluntarily as he had in the first. I am satisfied no inducement was put to him to admit so as to get a concurrent sentence. Both statements are admitted.

Accused 4 [Eroni Lewaqai]

[35] 	In his unsworn statement Accused 4 also denied taking the oath as charged. He said that Cpl Mesake came to his home in Sabeto at 8 am on 16th June 2003 and asked him to come to Sabeto Police Station. He was to be asked about the upheaval in May 2000. Accused 4 said he asked for Mr Rabo his solicitor. He said the officer went to a wooden building and came back saying he could not get in touch. Accused 4 asked if he could give his statement in Suva the following week when his solicitor could be present.

[36] 	Cpl Mesake told him his questioning was nothing serious, he said. He just needed it for his records. Accused 4 then gave his statement, a statement he said he would never have given if he had consulted a lawyer.

[37] 	On 3rd December 2004 at 5 am policemen came in two vehicles to his village. They surrounded his house and banged strongly on the door. Accused 4 explained that he had spoken to Acting SP Tabakau the previous night and that he had agreed to come to Suva on his own the next day. Cpl Mesake then told him he was under arrest. He was not told why and he was not offered a chance to consult a solicitor. He was brought down to Suva in some discomfort because of an old spinal injury.

[38] 	In his evidence Cpl Mesake said at the interview Accused 4 wanted his solicitor Mr Rabo to be present. He telephoned the number that Accused 4 gave him which he had obtained from the directory. The call was made from the police bure where they both were, and the call was made in Accused 4’s presence. Cpl Mesake said he tried several times but there was no answer. Had he been requested, the officer said, he would have suspended the interview. But he was not asked to put off the interview to Suva to allow Mr Rabo once contacted to be present.

[39] 	Acting SP Tabakau also testified that he was instructing Cpl Mesake by phone, and that he had asked Cpl Mesake to facilitate solicitor of choice for the interview. But Accused 4 said "Never mind, I will just answer the question."

[40] 	In cross-examination Cpl Mesake said he did not think he should have suspended the interview. But said he would only have done so if Accused 4 had requested it. I am satisfied beyond reasonable doubt that attempts were made to obtain his lawyer, but that on these being unsuccessful, Accused 4 decided to proceed without him. I am also satisfied that his answers were given voluntarily.

[41] 	On 2.12.04 Accused 4 was brought to Suva and interviewed again. SP Tabakau testified that they had indeed had a telephone conversation the day before. Accused 4 had said he would wait for officers the next morning to transport him to Suva. SP Tabakau said Accused 4 volunteered to come to Suva but asked for police transport. He was not under arrest in coming to Suva. If he had refused though, he would have been arrested.

[42] 	D/Cpl Suliasi Ratu from the CID in Lautoka said he had instructions from SP Tabakau to bring Accused 4 to Suva. He with three other officers was at Sabeto village by 6 am on 2nd December 2005. They went in one vehicle only, a twin cab. He spoke politely to Accused 4 in his own dialect. He was not arrested. Accused 4 co-operated. It was past 6 am when they left Sabeto. He was not aware Accused 4 was in any discomfort or had an old injury on the trip to Suva. He was told why they were going to Suva, but he was not asked (at 6 am) if he wanted to consult a solicitor.

[43] 	Cpl Suliasi was asked to bring his notebook for the resumption after the weekend. He had not referred to his notebook whilst giving evidence. There was no inconsistency between his evidence and the notes recorded in the notebook. I had ordered that it be brought, though he had not referred to it, in case it transpired there was a material inconsistency to be shown. There was not, with one exception. The name of the police driver was different. The usual driver of the police vehicle was on sick leave that day and another driver had to take over.

[44] 	Upon arrival in Suva, Accused 4 was formally charged and made no statement.

The charge statements

[45] 	None of the 4 Accused made any admissions in answer to the formal charge. They exercised their right to remain silent. The State explains it wishes to adduce their charge statements to provide further examples of their handwriting in the form of their signatures on the documents. In these circumstances, where the Accused exercises his right to remain silent, the charge statements are often not referred to and not exhibited. The defence if they wish can elicit from the Investigation Officer that they had indeed exercised their right to remain silent.

[46] 	Is there anything probative left for the State to point to by this evidence? These documents were not referred to the document examiner, Mr Boot, who gave evidence on other admitted examples of the Accused’s handwriting. He did not examine these however and was therefore unable to provide the assessors or myself with any guidance on them in relation to the disputed documents. He compiled his report and gave his evidence based on accepted examples of the Accused’s handwriting compared with the disputed documents. Will another example of their signatures assist in proof of authorship of the disputed documents? Can the assessors use the charge statements to make comparison without the assistance of the handwriting expert?

[47] 	The court was evenly divided in Doe d Mudd v Suckermore (1836) 5 Ad. & El 703. Witnesses who are familiar with a person’s signature, perhaps through correspondence with that person, may state their opinion. Much will depend on the circumstances. However the assessors here have no familiarity with any of the Accused’s writings or signatures in order to make their own informed comparison. 

[48] 	In R v Harvey and Harvey (1869) 11 Cox CC 546 Blackburn J thought the jury ought not to act upon evidence of copy books found at the Accused’s house without the assistance of a handwriting expert. A similar view was adopted in Rickard (1918) 13 Cr. App. R. 140 at p.143 where Salter J considered leaving the "question of handwriting to a jury without assistance is a somewhat dangerous course."

[49] 	But the Court of Appeal in Rickard was prepared to examine the documents, a practice it noted that had been undertaken before. It said (at p.143):

"This Court has before now examined documents in such a case, and has done so here. If we found very striking similarities we might come to a different conclusion. But though there are some similarities, there are more striking dissimilarities, and the similarities are not sufficient to enable us to say that we must support the conviction."

[50] 	In Wakeford v Bishop of Lincoln (1921) Privy Council 90 LJPC 174, the Privy Council sitting with ecclesiastical assessors re-heard a case arising from the Consistory Court of Lincoln. The disputed writing arose from an hotel register. Lord Birkenhead LC for the court said at p.179:

"The expert called for the prosecution gave his evidence with great candour."It is not possible," he says, "to say definitely that anybody wrote a particular thing. All you can do is to point out the similarities and draw conclusions from them." This is the manner in which expert evidence on matters of this kind ought to be presented to the Court, who have to make up their minds, with such assistance as can be furnished to them by those who have made a study of these matters, whether a particular writing is to be assigned to a particular person."

[51] 	The expert evidence given in the instant case by Mr Boot has been a recital of methodology with the expert’s conclusions. It cannot be said that similarities from one piece of admitted writing have been pointed out to us illustrating a like characteristic in the disputed signatures. The failure to guide the assessors and myself through our task has meant that we have been told of conclusions without any clear demonstration of the likenesses, the clear matches of letter, style, spacing, slope, size, or baseline. As a result we are in no position to apply on our own what could have been demonstrated to us from examples of the admitted writing and apply them to the hitherto unexamined charge statement signatures when comparing them with the disputed signatures.

[52] 	Their lordships in Wakeford were prepared to act "upon the evidence of their own eyes" (p.180). If evidence of their own comparison had been the only evidence they might not have been satisfied so as to confirm the conviction. Their approach had been as follows:

"If this were the only piece of evidence, their Lordships, although without doubt in their own minds as to the authenticity of the writing, would not willingly rest their judgment on a single fact as to which error might be possible. But the only alternative to the genuineness of the writing is the supposition that it was a carefully planned forgery of the appellant’s name as an integral part of the alleged conspiracy. For the reasons already given their Lordships feel that the hypothesis of such a conspiracy is utterly untenable. It follows that the writing in such circumstances furnishes an overwhelming corroboration of the other evidence."

[53] 	Wright (1934) 25 Cr. App. R. 35 at p.40 was an example of the English Court of Criminal Appeal finding that it was competent for the jury to make its own comparison, without the evidence of an expert to examine the disputed handwriting. The decision in Day (1940) 27 Cr. App. R. 168 seemed to envisage that course also. In Australia it has been held a permissible practice for witnesses to compare handwriting and for that evidence to be accepted by a jury without the assistance of an expert: Adami v The Queen [1959] 108 CLR 605.

[54] 	In R v Tilley [1961] 1 WLR 1309 at p.1312 it was held juries should not be left unassisted to decide questions of disputed handwriting on their own. The decision does not seem to have banned entirely the process of comparison being undertaken by jurors. But it does lay down that they should only do so after having had some expert guidance in the trial. Tilley was followed in Harden [1963] 1 QB 8 at p.24; R v Stannard [1963] Crim. L.R. 499 at p.500; R v O’Sullivan [1969] 2 All ER 237; R v Ewing [1983] 1 QB 1039.

[55] 	In Daley v The Queen [1979] Tas R 63 the Tasmanian Court of Criminal Appeal had pointed to the obvious differences in the signature on the disputed cheque, with those of admitted signatures. There was no handwriting expert called at the trial. The judge had warned of the dangers of comparing handwriting but indicated that the jury should ignore the genuine signatures. The appeal court held it was open for the jury to look at the signatures and to say that the disputed signatures were not made by the same man, the Accused, a result which would have exculpated the Accused. Second, they could decide on their own that the Accused might have written the signature, but the matter would have to be decided on other evidence.

[56] 	In Gawne v Gawne [1979] 2 NSWLR 449 Glass JA said of the trial judge’s approach (at p.453):

"In conceding a dominant role to the expert testimony, he misapprehended the weight of the remaining evidence which, in a cogent way, established the probability that the signatures were genuine, and the improbability that they had been forged."

[57] 	In that case, there had been a conflict of handwriting experts opinions, as in R v Leroy [1984] 2 NSWLR 441, where the trial judge had cautioned the jury to be guided by the handwriting expert. Street CJ held that the handwriting expert was not to be taken to be predominant, and it was open for the jury to make the comparison itself and to reach a conclusion on the matter (p.446). A similar view was reached in Crayden [1988] 36 A Crim R 163 at p.172.

[58] 	Since the handwriting expert has given little demonstrated guidance to the assessors on how to go about the task of comparison with the disputed signatures, I can see no residual probative value in the admission of the charge statements as material for them to make further comparison along with the other documents. Accordingly I rule the charge statements inadmissible as being irrelevant and non-probative of any issue in the trial. 

[59] 	On the authorship of the disputed signatures, the assessors will be directed to consider the documentary exhibits used by Mr Boot, together with Mr Boot’s evidence, along with that evidence addressed by the defence contra.

[60] 	In summary, the caution interview statements are all admitted, and the charge statements are all ruled inadmissible.

A.H.C.T. GATES
JUDGE

Solicitors for the State	: Office of the Director of Public Prosecutions, Suva.
Solicitors for Accused 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]: Messrs Iqbal Khan & Associates, Lautoka.
Solicitors for Accused 4 [Lewaqai]: Messrs Esesimarm & Co., Nadi.