IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 104 of 2013

STATE

V

SAKEASI SAULEQARAKI

Counsel : Ms. S. Puamau with Ms. S. Serukai for State
 Ms. P. Chand for Accused
Dates of Hearing : 23rd–24thNovember 2015
Date Ruling : 24thNovember 2015

RULING

1.	 The Accused is charged with Rape contrary to Section 207 (1) and (2)(a) of the Crimes Decree 2009.

2.	 The State seeks to tender the accused's cautioned interview statement as evidence in this trial. The accused is challenging the cautioned interview statement based on the following grounds;

a)	Interviewing Officer and some other Officers present in the Levuka Station continuously intimidated him;

b)	The said Officers threatened to keep him longer in the Cell until and unless he admits to the Offence;

c)	The said Officers promised that they will close his file if he cooperates with them by making things easier for them;

d)	He was kept in Police custody for more than 24 hours.

3.	 In Ganga Ram and Shiu Charan v. R (1983), the Fiji Court of Appeal outlined the two grounds for the exclusion of a confession:

 "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 (sic) beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage - what has been picturesquely described as the flattery of hope or the tyranny of fear. Ibrahim v. R [1914] AC 599; DPP v. Ping Lin [1976] AC 574.

 Secondly, even if such voluntariness is established there is also a need to consider whether the more general ground of unfairness exists in the way in which police behaved, perhaps by breach of the Judges' rules falling short of overbearing will, by trickery or by unfair treatment. R v. Sang [1980] AC 402, 436 at C-E. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account". [Emphasis added]

4.	 Prosecution led the evidence of PC 2374 Ropate Rabuku who arrested the Respondent on 16thJanuary 2013; W/Sergeant 2684 Sainimili Vakatale who was the Crime Officer and who led the team that escorted the accused to Levuka Police Station from the Qarani Police Post; PC 4242 Isireli Pareti who was part of the team that escorted the accused to Levuka Police Station and who interviewed the accused under caution; and PC 3770 Sosiceni Tamani who was the witnessing officer of the cautioned interview.

5.	 The Police Officers said that the accused was not threatened and they did not make false promises. According to the prosecution witnesses, the accused was given all his rights and he gave the answers voluntarily during the cautioned interview.

6.	 The accused gave evidence and said that he made the confession as a result of threats and promises made by the Police Officers. He also says that he was kept in Police custody for more than 24 hours and he was interviewed under caution from 8.20pm to 12.10am the following day and he did not have a proper sleep when he was in Police custody.

7.	 It is clear from the evidence that the accused was arrested on 16th January 2013 and was interviewed under caution on 18th January 2013 from 8.20pm to 12.10am the following morning. The accused was produced in court on 21st January 2013. Sergeant Vakatale and PC Pareti said that the reason for the interview to commence at 8.20pm was to allow the accused to rest after they travelled in a fiber glass boat from Gau to Levuka Police Station in bad weather.

8.	 I am not satisfied that there were threats made to the accused by the Police before or during the cautioned interview.

9.	 However, I am not satisfied that the confession was made voluntarily and I also find that the cautioned interview has been conducted under circumstances unfair to the accused based on;

a)	PC Rabuku's evidence that he told the accused before the accused was arrested "everything has finished, we cannot undo it, what we are going to do is to be honest to each other so that it can set you free";

Though PC Rabuku later said in cross examination that he did not mean to say that 'the accused will be released' when he said that "it can set you free", I am unable to rule out the possibility that the said statement of PC Rabuku may have influenced the accused to make his confession; and 

b)	The time, the accused was interviewed under caution which was from 8.20pm to 12.10am.

The prosecution witnesses were unable to properly justify selecting the above time on 18th January 2013 to conduct the cautioned interview when the accused was in the custody of the Police from 16th January 2013 to 21st January 2013.

10.	 In the circumstances, I hold that the cautioned interview of the accused (tendered as PE1) is not admissible in evidence.

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.