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State v Nasila [2010] FJHC 526; HAC093.2010 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 093 OF 2009

STATE

V

SAIRUSI NASILA

Ms I. Whippy for the State
Mr T. Terere (LAC) for the Accused

Date of Hearing: 16 November 2010
Date of Ruling: 16 November 2010

RULING ON VOIR DIRE

[1] The defence objects to the admissibility of an oral confession, an interview under caution and a charge statement all of which the State seeks to adduce into evidence. The oral confession to a crime of murder was made soon after arrest on the 12th September 2009, the interview under caution made over two days on the 13th and 14th September 2009 and the charge statement made in answer to charge on the 14th September 2009.

[2] The defence's grounds of objection are:

1. That the confessions were obtained under force, duress and pressure by the Police officers who arrested and interrogated him at the Nadi Police Station.

2. That he was assaulted by the police officers upon his arrest and at the Nadi Police Station whilst being handcuffed and during his caution interview.

3. That his caution interview statements were never read back to him and he was only told to sign on several occasions.

[3] These grounds were particularized in further document filed by the defence in which it is claimed:

1. That he was punched on the jaw and in the stomach and in his eyes were "sprayed".

2. He was assaulted by 5 Fijian police officers in the Nadi Police Station.

3. He was handcuffed to a cement wall and punched on the head and chest. Verbally abused and forced to sign a fabricated interview.

4. He was taken to hospital but not examined, because a "fat policeman" told the Doctor not to examine him.

[4] The evidence called by the State was given by five Nadi police officers, the grandfather of the young victim, a lady Doctor from Nadi hospital and the District Officer, Nadi. A young 3 year old girl from Korokula village was reported missing and information received at Nadi Police Station implicated this accused. A party of officers went to the village to locate the accused and PC Jesoni was left there to locate him and effect the arrest. Having arrested him after a short chase, the police constable and the accused were walking on the roadside with the victim's grandfather who was quite understandably very angry. The grandfather tried to assault the accused but Jesoni deflected the blows and all fell onto the gravel surface of the road. The main search party then arrived and conveyed the party to Nadi, via the nearest Police Post being Nawai. On the journey to Nawai, the accused broke down and made a verbal confession that he had abducted the victim and murdered her. He then showed the police where he had thrown the body.

[5] Later at Nadi Police Station after he had been given time to rest and see a Doctor, he was interviewed under caution in two rather short periods, one on the evening of the 13th September, and again the following morning. Later on the 14th he made a confession to murder in an answer to charge.

[6] The accused elected to give sworn evidence. He gave a garbled, over the top account of events of 12 to 14 September. If what he says is true he would have been hospitalized for weeks if not dead. He first said he did not make the confession in the vehicle but then later said he did because of the frenzied assaults by the officer. I did not believe a word of his evidence, but then that is not the test. I remain aware of the need to find beyond reasonable doubt that the State has proved the confessions to be voluntarily given and this I do so find.

The Law

[7] The classic test of admissibility was set out in the speech of Lord Sumner in Ibrahim v R [1914] AC 599 when he said:

"It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

[8] This legal principle was adopted in Fiji in Ganga Ram and Shiu Charan v R FJCA CA 46 of 1983.

"Such a test does not preclude a Court from looking however at the general fairness or oppression in the circumstances of production of the evidence in question. Even if found to be voluntary, a statement can still be excluded if it is thought that the voluntary statement was obtained unfairly or in breach of a suspect's rights. That oppression has been described by the House of Lords in Priestly (1965) Cr App R, 1 as "something which tends to sap, and has sapped, that freewill which must exist before a confession is voluntary"."

[9] I am mindful of the standard of proof that must be satisfied in that, I must find beyond reasonable doubt that the statements were voluntarily given to the police; and the onus of proving that and proving that they were obtained fairly is on the State.

Analysis

[10] The Doctor gave evidence that on examination of the accused after his arrest, she found abrasions on his back which she said could be consistent with a fall onto a gravel surface. There were no other injuries on the body, and certainly nothing to substantiate the continual assaults claimed by the accused. There were no injuries to the face or jaw. I believe the Doctor's evidence and the accused's claim that she was lying because she did not examine him at all is preposterous.

[11] The Police Officers gave clear and compelling evidence and I accept their evidence. I find that not one of them assaulted or threatened the accused and I accept that the accused was treated at all times fairly and professionally.

[12] The accused claimed originally that he never made the confession in the police vehicle but he later resiled from that position saying he said things because he was being treated like a "punch bag". The medical evidence is not consistent with this claim. I find that the accused was so overwhelmed with the predicament he found himself in that he did in fact break down and gave a true and voluntary account of his deeds with regard to the little girl, an account which was later borne out by his re-enactment. The defence made an issue of the fact that he was not told of his rights to counsel before he made the confession, but even if this is true, and one policeman says he was so advised, it is not fatal to the voluntariness of the confession. As Goundar J. said in Raymond Singh – HAC 72 of 2005, in a very similar situation:

"I find that he was not advised of his right to counsel upon arrest. However I am satisfied beyond reasonable doubt that the accused was not prejudiced by the breach. The circumstances in which the accused made the confession are relevant. I accept the evidence of the police officers over the evidence of the accused."

There is no suggestion apart from the manic evidence of the accused that the police used any force, pressure, promise or inducement to cause the accused to utter the incriminating statement. It was a spontaneous utterance, and I do not accept the version of events given by the accused.

The confession was entirely voluntary and can be led in evidence.

[13] Similarly the caution interview and the answer to charge were given voluntarily and the accused's version of events is not borne out by medical evidence. He was given plenty of rest and adequate meals and treated most humanely. They too can be led in evidence.

Paul K. Madigan
Judge

At Lautoka
10 November 2010