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State v Hicks [2014] FJHC 763; HAC35.2009 (13 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 035 OF 2009

STATE

V

3) DWAYNE HICKS

Counsels: Ms. L. Latu for the State
The accused in person

Date of hearing: 8 October 2014-9 October 2014
Date of Ruling: 13 October 2014

Voir Dire Ruling

1. The State seeks to adduce into evidence the record of a caution interview of the accused on 10.11.2009andcharge statement dated 11.11.2009. The accused objects to the admissibility of this document on the following grounds filed by him on 19.7.2013.
   
   • (i) He was taken out from Lautoka police cell punched on the back of the head and told to go to strike back office
     
   • (ii) There he was told to sit on the floor with more than 10 police officers opened a plastic containing chilies and told him to eat the chillies
     
   • (iii) One of them by the name Sevivi of Nadi strike back team was standing back at him and punching him on both ears and telling him to admit and if he does not admit he will be taken to Nadi and you will not know what will happen
     
   • (iv) He was handcuffed and put to a police vehicle with his moth covered with round socks and face covered with black pompom
     
   • (v) While travelling the vehicle was stopped where the sock and pompom was taken out and his clothes were also taken out. He was told to kneel down and started to rub chilies on his eye and private parts.
     
   • (vi) Then again his mouth was tied and face was covered and clothes were put on. He was taken to another place where he was stripped naked again. They were penetrating his anus with hands while his face was covered
     
   • (vii) He could not take it anymore and told them he will confess. Then they stopped doing these things to him. He was taken to Namaka Police Station
     
   • (viii) The next morning he was taken back to Lautoka Police Station. Same evening he was taken to Ba Police Station and forced to confess to the allegation and what was done the other night was less and they will do more things to him
     
   • (ix) He had to confess to the allegation and follow and adapt to the story and sign those documents that they force him to confess and sign
     
   • (x) He had asked officers at Lautoka and Ba for him to be taken to hospital as his anus was paining
     
   • (xi) Another Indo Fijian suspect was present while he was undergoing these treatments.
     
2. The test of admissibility of all confessional statements made to the Policeofficers is whether those were made freely and not as a result of threats, assaults or inducements made to the accused by person or persons in authority. Further, oppression or unfairness also leads to the exclusion of the confession. Finally, where the rights of the suspects under Section 27 of the Constitution have been breached, this will lead to the exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.
   
3. The preamble of the Judges Rules states as follows:
   

"That 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 statement made by that person, 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."

4. The Privy Council, in the case of Wong Kam-ming v The Queen (1980) A.C. 247, P.C., observed that:
   

"[t]he basic control over the admissibility of statements are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions."

5. The Fiji Court of Appeal in case of the Ganga Ram and ShiuCharan v R (FCA Crim.App.

46/1983) outlined the two-part test for the exclusion of confessions at page 8:

"It will be remembered that there are two matters each of which requires consideration in this area.

First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as use of force, threats or prejudice or inducement by offer of some advantage-what has been picturesquely described as 'flatter of hope or the tyranny of fear.' Ibrahim v R (1914) A.C. 559; DPP v Pin Lin (1976)A.C. 574.

Secondly, even if such voluntariness is established, there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

6. It is for me to decide whether interviews were conducted freely and not as a result of threats, assaults or inducements made to the accused by a person or persons in authority. Secondly if I find that there has been oppression or unfairness, then I can in my discretion exclude the interviews. Finally, if his rights under the Constitution or common law have been breached, then that will lead to exclusion of the confessions obtained thereby, unless the prosecution can show that the suspect was not thereby prejudiced. These rights include such rights as having a legal representative of his choice and having access to family, next-of-kin or religious counselor.
   
7. The burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, where applicable, and if there is noncompliance, lack of prejudice to the accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.
   
8. Now I look at the evidence presented in respect of the caution interview and charge statement.
   
9. The first witness was DC Opeti Lolo. He stated that he could not recall arresting the accused in November 2009. Under cross examination he denied taking part in arresting the accused from Kadavu Street in Lautoka on 9.11.2009. He denied reference in the Lautoka Station diary entry 81dated 9.11.2009. He denied putting the accused in a police twin cab and taking him to unknown area. He denied taking off accused's clothes and sodomizing the accused at Vailoaloa golf course. He denied thereafter taking the accused to Namaka Police Station.
   
10. The next witness for the prosecution was DC Seruvi Caquasau. He denied taking part in arrest of the accused and taking any part in the investigation. Under cross examination, he denied arresting the accused from Kandau Street on 9.11.2009. He denied giving plastic with chilies to the accused at strike back unit office, Lautoka Police Station. He denied putting chilies in accused's mouth and standing on his back. He denied telling the accused to admit and if don't admit the accused will be taken to Nadi. He denied assaulting the accused at unknown place and at Vailoaloa golf course. He denied thereafter taking the accused to Namaka Police Station.
    
11. The third witness for the prosecution was D/Cpl. Tamani. He is an officer with 24years experience. On 10.11.2009 he had proceeded to Lautoka Police Station with DC Aswin, DC Bimal and DC Arif. The accused was escorted from Lautoka to Ba around 7.00 p.m. The accused did not make any complaint of threat or assault. At Ba they rested for a while and the accused was caution interviewed by DC Aswin. Under cross examination he denied the accused having an injury on his hand from handcuffs.
    
12. The next witness was DC Aswin Prakash. He had caution interviewed the accused. It was started on 10.11.2009 and concluded on 11.11.2009. It was in question and answer format in English language. The accused was given his rights. The accused did not make any complaint of assault or threat before the interview. He was asking questions and the accused gave answers. He identified the accused in Court. He identified and tendered the caution interview notes marked VD1. The accused had not made any complaint after the interview. Under cross examination he said that the accused was normal with no visible injuries during the interview. The accused did not make a complaint of any injuries or assault done by anyone. Police had taken him for reconstruction and the accused had guided the police which way to follow. He had not taken any photos at the reconstruction. He denied taking advantage of the accused's fear when he came for the interview.
    
13. The next witness was DC Arif Khan. He is an officer with 16years experience. He had charged the accused on 11.11.2009 at the Ba Police Station, Crime Office. It was in English language. The accused was giving answers to questions asked by him. The accused did not make a complaint of any abuse or assault. He did not complain of any injury or illness. He identified and tendered the charge statement marked VD2. He identified the accused in Court. He was part of the team that escorted the accused from Lautoka police station on 10.9.2009. The accused had not made any complaint to him about abuse or assault. Under cross examination, he stated no complaint was made by accused of fear or assault. No witnessing officer was present. He was the most senior officer present and there was no other officer present to be the witnessing officer. He had not taken the accused for medical examination after the charge as he did not make any complaint of assault. There were no visible injuries.
    
14. The last witness for the prosecution was DC Rupeni Koroi. On 9.11.2009 he had escorted the accused to the crime office at the Lautoka Police Station. Under cross examination his attention was drawn to entry No. 175 in the station diary on 9.11.2009 at 1655 hours where it is recorded 'DC Rupeni brought in Dwayne Hicks and Loues Ledger for questioning.' The witness said that he brought the accused from the station to the crime office. He admitted that this is the first entry in the station dairy about the accused on that day. Then his attention was drawn to entry No. 215 where it is recorded that the accused was brought from cell and escorted to crime office at 2135 hours. The witness said that he is unaware of that entry. He denied arresting the accused about 4.30 p.m. with other officers. He denied being a part of arresting team and assaulting the accused at any time.
    
15. After the close of the prosecution case, I found a case to answer from theaccused in the trial within the trial. The accused was explained his rights.
    
16. The accused gave evidence. He stated that he was assaulted and arrested at his friend's house at Kadavu Street by police officers. He was put in the cell. When it was dark he was taken to strike back unit office. He was told to eat chilies. He was told to admit the offence or he will be taken to Nadi. After a while he was loaded into a police twin cab and taken to unknown place. He was blind folded. They rubbed chilies on his private parts. His hands were handcuffed in the back. Due to struggle his hands started to pain. Then he was loaded again in the vehicle and taken to a golf course. There his blind fold was removed. chilies were put to his eyes and private parts. Chilies were inserted into his anus. He could not take what was happening to him and admitted this offence. It took 7 months for the Ba Police Station to arrest him. He was in remand and they did not come there to question him or arrest him. They wanted him to come out to do these acts to admit the offence.
    
17. Under cross examination he stated that he complained to the interviewing officers and the station orderlies at the Lautoka and Ba Police Stations about the assault. They were covering each other. He did not complaint to the Magistrate as he knew that the Magistrate is going to send him back to the police. He admitted that he came out with this only in Voir-dire grounds filed by him. This was the first time for him to go through this procedure.
    
18. Accused called Nithendra Michael as a witness. He was taken to Lautoka Police Station on 9.11.2019 in the evening. He was taken to golf course. He saw police officers putting chilies to accused private parts and up his anus. He was told he will get the same if he doesn't tell the truth. He did not know the accused before. He had told the accused what he saw when he met the accused in town.Under cross examination he said that he came to Court after receiving summons. He said that he came to Court to tell the truth. It was not suggested to him that he is lying or he was not arrested on 9.11.2009.
    
19. I have carefully considered the available evidence in respect of the caution interview on 10.11.2009and the charge statement on 11.11. 2009 of the accused.
    
20. Accordingly, I have come to the view that in regard to any allegation ofassaults,threats, force or pressure by the police before the caution interview andthe charge statement, the state had failed to satisfy me beyond reasonable doubt that it did not happen.The evidence of the accused and the witness called by him creates a reasonable doubt in the evidence of the prosecution.I am not satisfied that the interviews were voluntary, that those were obtained in fair circumstances, that those were in no way oppressed out of the accused in contravention of his rights either under the Judges' Rules or of the Constitution which was not in operation.
    
21. The cautioninterview of the accusedof 10.11.2009and the charge statement of 11.11.2009,not being voluntary made is therefore not admissible in evidence.
    

Sudharshana De Silva
JUDGE

At Lautoka
13thOctober 2014

Solicitors: Office of the Director of Public Prosecution for State
The Accused in person