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State v Seru - Ruling (Voir Dire) [2016] FJHC 831; HAC32.2015 (6 September 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 32 of 2015

STATE

V

SIUTA SERU
1^ST ACCUSED

ASAELI RABOLECA
2^ND ACCUSED

Counsels: Mr. L. Fotofili for the State
Mr. A. Paka (L.A.C.) for 1^st Accused
Mr. I. Rakaria (L.A.C.) for 2^nd Accused

Dates of Hearing : 5, 6 September 2016
Date of Ruling : 6 September 2016

RULING (Voir Dire)

[1] The State seeks to adduce into evidence at the trial of the two accused the following documents:

(i) A record of interview conducted under caution with the first accused on various days between the 11^th June 2013 and the 30^th September 2013.
(ii) An answer to charge given under caution by the first accused on the 24^th June 2015.
(iii) A record of interview conducted under caution with the second accused between the 12^th June 2013 and the 16^th June 2013.

Grounds

[1] In challenging the admissibility of the two documents pertaining to him, the first accused advances the following grounds:

(a) When arrested he was punched on the side of his ribs and sworn at. On the journey to the C.I.D. Headquarters in Toorak Suva he was again punched and sworn at.
(b) Inside HQ he was punched on the back by Officer Jimmy who also swore at him. He was threated that if he did not tell the truth he “would get it”.
(c) Before commencing his interview he was shown the statement of a person who purportedly claims that the first accused confessed to him and was told he had better plead guilty.
(d) At Nabouwalu Police Station to where the interview had moved, he was further assaulted
(e) In a reconstruction exercise he was forced to point out areas at the direction of the Police.

[3] The grounds of objection advanced by the second accused are:

(a) That on the third day of interview at the Nabouwalu Police Station after a party of Officers had arrived from Suva he was threatened and assaulted by punches on the ribs and mouth. These improprieties forced him to admit the allegations.

[3] The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, whether obtained without oppression or unfairness or not obtained in breach of the suspect’s Constitutional rights. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with his/her Constitutional rights is on the Prosecution and that burden remains on the State throughout. The standard is beyond reasonable doubt and I have kept these tests and the burden uppermost in my mind in deciding on these applications.

[4] Evidence of assault, should I find it proved, amounts to an attack on the voluntariness of the statement in issue, in that assaults would sap the will of the accused and render his/her participation as unwilling.

[5] In the case for the prosecution, the State called 5 police witnesses and one medical officer. Three of the officers were from the C.I. D. Headquarters in Toorak, Suva and two were officers who were at the relevant times based at Nabouwalu Police Station. They told of the arrest of each suspect and they gave evidence as to the making of the two cautioned interviews and the one charge statement relating to the first accused. The medical witness examined each of the accused on the 18^th June 2013 and prepared reports of those examinations.

[6] Each of the accused gave evidence in his own reply to the State’s application each telling of physical assault, threats and inducement; mainly but not entirely in accordance with their filed grounds of objection.

State Evidence

[7] The prosecution case in respect of the first accused is that he was arrested on the 11^th June 2013 at TFL Tower in Nausori and taken to CID HQ for questioning. He was interviewed under caution by D/Cpl. Viliame who typed his answers into a computer record. This record was printed out page by page according to the officer. It was then read and signed by all present (interviewer, accused and witness) page by page. The interview proceeded for two days until they all went to Nabouwalu by boat where the interview continued. On the fourth day (14^th June) the suspect was taken to effect a reconstruction of the scene which was recorded as part of the interview. He was then taken to Labasa where the interview proceeded and he was taken on the 18^th to Labasa Hospital for a medical examination. The interview was finally completed on the 30^th September 2013.Between the 18^th June and the end of September the first accused had been released unconditionally and was staying with relatives in Labasa.

[8] The first accused was formally charged on the 24^th June 2015. He made an inculpatory statement in response which he asked the officer to write for him and it was read back to him.

[9] The medical examination revealed a medically fit person: he had no bruises, swellings or injury. His heart and lungs were functioning normally.

[10] The second accused was arrested at his home village in Bua on the 12^th June 2013 and was taken to Nabouwalu Police Station where his interview commenced that evening. It lasted 5 days one after the other. He was taken, along with the first accused to perform a reconstruction of the scene. He was kept in custody in Nabouwalu throughout until he was brought to Labasa where he was medically examined on the 18^th at the Labasa Hospital.

[11] As with the first accused he had no sign of injury, no bruises, no tenderness. His lungs and heart were normal. Neither of them made any complaint of assault to the Doctor.

[12] At no time did either of the accused make any complaint to anybody; Magistrate Judge, Lawyer nor doctor.

First Accused’s Evidence

[13] In his sworn evidence, the first accused said that when arrested his ribs were punched more than 5 times and he was sworn at in foul language. On being taken to HQ he was further punched and the driver swore at him. Before he was interviewed he was shown a statement in which he is said to have confessed to another and he was told to admit what was said in the statement. “They” were continuing to punch him on the ribs. The accused said he was not admitting that and the interview proceeded with the questions and answers being taken down on a computer. That lasted for 2 days in Suva before he was taken to Nabouwalu. In those two days he was never read the interview and he didn’t know what was in the record. On arrival in Nabouwalu the interview continued. They were punching his ribs and telling him to admit. He had no chance to read the interview and he was taken for a reconstruction. At that reconstruction he was told where to point out places and told where to stand for photographs. He was taken from Nabouwalu to Labasa where he was taken to hospital for a medical examination. After that he was released. He had never been given the chance to read his caution interview and he had no idea what was in it. They just said that if he signed it he could go home.

[14] On the day that he was formally charged they took him in to Nabouwalu Police Station where 6 officers were drinking yaqona outside. They told him to drink with them and while drinking grog they took the charge statement, typing it on the computer. He was not given a chance to read over his statement and was told where to sign it.

[15] He was thereafter taken to Court and was never given a chance by the Magistrate to say anything and in the hospital he couldn’t tell the Doctor because a police officer was present.

Second Accused’s Evidence

[16] The first accused said that he was arrested on the 12^th June 2013 in the early evening. He had just come back from the farm and had no idea what the Police were interested in him for. They didn’t tell him why but asked him to go with them to the Nabouwalu Police Station to answer some questions. He was interviewed that evening from about 9pm to 1am the next morning. He was not told his rights to Counsel, family or religious advisor. He had no idea what they were writing. He didn’t read it but was told he could read it the next day. He signed it without reading it. He was interviewed for 5 days until June 16^th. Nothing happened to him until the Suva Officers came on the third day and that it is when the Nabouwalu Officer (Savou) assaulted him.

[17] A Suva man punched his ribs and his mouth. On the 14^th and 15^th he was constantly assaulted and threatened. He was taken on a reconstruction of the scene. The officers told him where the “incident” was said to have happened. They told him where to stand and point and they took the photos. He had never been to that place before. They went back to Nabouwalu. His family came to visit him on the second day. He was never given a chance to read his statement and he was told where to sign. On the 16^th he was brought to Labasa where he was taken to the hospital. He still feels pain in his ribs even though there is no sign of it.

Analysis

[18] Although the accused don’t have to prove anything to me , I found their evidence evasive and unconvincing. I didn’t believe either of them. There was nothing either said to make me doubt the evidence of the Police Officers which was confident and unshaken in cross-examination. There is evidence that these two were treated very well and very fairly by the Police.

[19] It is noteworthy that, despite their evidence of repeated punching, a medical examination within days of that revealed no sign of injury not even tenderness. Nor was any complaint made to anybody in authority when each did have that opportunity.

[20] I have no hesitation in finding that the State has proved to me beyond reasonable doubt that these statements were generated voluntarily and they may be adduced in evidence.

P. K. Madigan
Judge
At Labasa
6 September 2016