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State v Lalaobouma [2022] FJHC 26; HAC192.2019 (31 January 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case. No. HAC 192 of 2019

BETWEEN : THE STATE

A N D : VILIMONE LALAOBOUMA

Counsel : Mr. A. Singh with Ms. S. Swastika and Mr. U. Lal for the State.
Ms. J. Singh for the Accused.

Dates of Hearing : 11, 12, 13, 14, 17, 18, and 19 January, 2022
Date of Submissions : 26 January, 2022
Date of Ruling : 31 January, 2022

VOIR DIRE RULING

1. The accused is charged with one count of murder contrary to section 237 of the Crimes Act, one count of robbery contrary to section 310 (1) (a) (i) of the Crimes Act, one count of aggravated robbery contrary to section 311 (1) (a) of the Crimes Act and three counts of serious assault contrary to section 277 (b) of the Crimes Act.
   
2. The prosecution wishes to adduce in evidence at trial the caution interview and the charge statement of the accused. The accused objects to the admissibility of both the documents upon the following amended grounds of voir dire dated 10^th January, 2022 filed herein:
   

1.0 Accused’s Arrest

1.1 That the accused prior to his caution interview and his charge statement being conducted, he was assaulted by the arresting officers, namely PC Atalifo and his team who brought the accused from Ground 2 Churchill Park.

1.2 That the accused was not informed and given his rights during the time of his arrest.

1.3 Furthermore the accused was assaulted in one of the rooms, at the Lautoka Police Station by some Police Officers and one PC Mosese. This was before his caution interview was conducted. The police officers stepped on his chest, kicked him and punched him and threw him on the floor.

1.4 That whilst being taken to Ba Police station PC Mosese and another Police Officer punched him and slapped the accused in the Police Vehicle. He was further threatened by PC Mosese that if anything happens to Sgt Siuta the accused would be killed.

2.0 During Accused’s Caution Interview

2.1 That he was forced to sign his record of interview and it was not read back to him.

2.2 That the accused was sworn by other Police Officers in the presence of the interviewing officer and the witnessing officer during his caution interview.

3.0 Charge Statement

3.1 The accused was not given his rights to remain silent during his charge statement, and his statement was not read back to him but he was only told to sign.

3.2 That in addition, the admissions in his charge statement were made involuntarily due to the systematic torture done to him during his arrest and during his caution interview whilst in police custody.

3.3 That the caution interview and the charge statement of the accused were obtained in circumstances that were unfair and oppressive to the accused – as he was forced to make admissions under threats and assaults.

4.0 We humbly request the State provide us with the following disclosures:

4.1 Station diary from both Lautoka Police Station and Ba Police Station from 21/10/19 to 23/10/19.

4.2 The presence of the Police officers who had arrested the accused, the police officers namely: PC Atalifo, Opeti Lolo, Paulo Cata, Timoci Vuli, DC Sheik and other police officers who had assaulted the accused during the time of this arrest.

4.3 The interviewing officer, witnessing officer of the caution interview.

4.4 The Charging Officer [Kaliova Vakaruru] and the Witnessing Officer [D/IP Meli Doughty] in regards to the Charge Statement.

4.5 The presence of the examining Doctors for the accused namely Dr Agnes Boyd and Dr Ben.

4.6 Cell book entries for Lautoka Police station and Ba Police station from 21/10/19 to 23/10/19.

4.7 Presence of PC Mosese.

3. The prosecution denies all the allegations raised in the amended grounds of voir dire. The burden is on the prosecution to prove beyond reasonable doubt that the caution interview and the charge statement of the accused were conducted fairly under just circumstances, the answers were given voluntarily, lack of prejudice, lack of oppression and in compliance with the Fijian Constitution where applicable. In this ruling the above principle of law has been kept in mind throughout.
   

LAW

4. The Court of Appeal in Ganga Ram and Shiu Charan vs. R, Criminal Appeal No. AAU 46 of 1983 outlined the following two tier test for the exclusion of confessions at page 8 in the following words:

“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 the use of force, threats or prejudice or inducement by offer of some advantage which has been picturesquely described as “the flattery of hope or the tranny 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 Judge’s Rules falling short of overbearing the will, by trickery or by unfair treatment. R v Sang [1979] UKHL 3; (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.”

5. The Constitution of the Republic of Fiji at sections 13 and 14 have recognised and endorsed the above mentioned principles as well.
   
6. It is for this court to decide firstly, whether the caution interview and the charge statement of the accused were conducted freely and fairly without any threats, assault, inducements or any improper practices by the persons in authority namely the police officers who were involved in the investigation and interrogation of the accused and that the accused had voluntarily given his answers on his freewill.
   
7. Secondly, if there has been oppression or unfairness then this court can also in its discretion exclude the caution interview and the charge statement. Further, if the accused common law rights have been breached then that will lead to the exclusion of the admission obtained, unless the prosecution can show that the accused was not prejudiced as a result of that breach.
   

PROSECUTION CASE

8. The prosecution called 12 witnesses to support its contention that the accused was not assaulted, threatened, forced, pressured, oppressed or dealt with unfairly at any time during the investigations. The accused had given the answers in the caution interview and made a statement in the charge statement voluntarily on his freewill. All the allegations raised by the accused in his amended grounds of voir dire are false and it did not happen.
   
9. Moreover, all the police officers who were involved in the investigations were properly briefed by their senior officers that the accused is to be kept safely away from any harm by the members of the public in particular the deceased family members, and the colleagues of the deceased namely those police officers from within the Lautoka Police Station.
   
10. Keeping the above in mind, the accused was taken to Ba Police Station and kept there during the night and brought over to the Lautoka Police Station during the day. Furthermore, the accused was taken to the hospital on two occasions that is one before the caution interview was conducted and the other before the accused was produced in court.
    
11. The accused had also met one Suresh Mani a Justice of Peace, the accused did not make any complaints against the police officers to this witness. During the caution interview the accused was taken for a scene reconstruction which was video recorded and played in court where the accused had pointed to places of interest and explained what he had done on the night of the allegations. The accused was also given meals, sufficient breaks, the opportunity to read his caution interview and charge statement before signing.
12. The caution interview and the charging were also conducted fairly in just circumstances. There was no ill treatment or unfairness to the accused at the time of his arrest, during transportation to the Lautoka Police Station or to the Ba Police Station or to the hospital or for the scene reconstruction and back to the Lautoka Police Station or at the Lautoka Police Station on any occasion or anytime the accused was in police custody.
    
13. The medical reports of the accused are self-explanatory the accused was able to converse well with the doctors on two occasions and was thoroughly examined at the Lautoka Hospital. It was upon the first doctor’s certification that the police officers caution interviewed the accused.
    

EVIDENCE

14. The first witness Sgt. 3231 Timoci Vuli informed the court that in the evening of 21^st October, 2019 at about 22:13 hours he was detailed to be the driver of police fleet no. 305 to attend to a report at Buabua, Lautoka.
    
15. The witness was accompanied by Inspector Opeti, Sgt. Josateki, Cpl. Pita, Constables Paulo and Siuta. They went from Lautoka Police Station to the Western Division Police Headquarters to pick the body bag and the camera. When the vehicle was parked, officers Josateki and Pita went to get those items. While seated in the vehicle, the witness saw a man jump from the Wananavu Car Wash fence and run across the road towards the tramline and towards the roundabout. At this time, a report was received on the radio telephone that a man was seen at Nasoki Street moving in a suspicious manner and a police officer was chasing him.
    
16. The witness then followed this man by driving the vehicle into a few streets within the Lautoka City with Inspector Opeti and Constables Paulo and Siuta in the vehicle. After making a few rounds, this man was seen standing under the street light before Mana and Yawini Street junction.
    
17. The witness drove the vehicle and stopped in front of this man who was the same person they were following that night. Inspector Opeti who was sitting in the front passenger seat told the man to stand still. As soon as Inspector Opeti opened the vehicle door, this man ran towards Yawini Street. The witness saw this man was wearing a black ¾, black t-shirt and a jungle green hat. At this time, PC Siuta got off the vehicle and followed this man.
    
18. The witness continued to follow in the vehicle, after a while this man jumped into the drain and ran towards Churchill Park ground no. 2. By this time the witness drove the vehicle through Verona Street when Constable Paulo told the witness that Constable Siuta had arrested the man. The vehicle was stopped, the witness and Constable Paulo got off the vehicle and ran towards Churchill Park ground no. 2 to assist Constable Siuta. As they were getting closer to Constable Siuta, the man ran towards Churchill Park ground no. 1 fence. There was an entry booth which had a light beside this booth and the witness could see it was the same person they were following.
    
19. The witness was about 25 metres behind, after a while the witness saw this man was holding a kitchen knife in his right hand. He saw this from the ticket booth light, by this time, the witness was about 20 metres away. According to the witness, this man was aggressive Constable Paulo also came and was about 20 metres to the left of the witness.
    
20. Since this man was an iTaukei, the witness spoke in the iTaukei language and warned the man to put the knife down. Constable Paulo also warned this man to put the knife down. There was no response so the witness picked a block which was the size of his palm and threw it on the right hand of this person. After the block landed on his hand, the knife fell on the ground. At this time, the witness quickly ran and picked the knife while Constable Paulo grabbed this man from behind.
    
21. After picking the knife the witness ran to where Constable Siuta was lying, thereafter he ran to the vehicle gave the knife to Inspector Opeti and then took Constable Siuta to the hospital. The witness pointed to the accused in court as the person he had seen that night.
    
22. In cross examination, the witness stated that when he threw the block, this man was facing him and the distance was about 20 metres apart. The witness disagreed the block had hit the back of the man. The witness agreed he saw Constable Paulo get hold of the suspect from behind and apart from that, he did not see anything.
    
23. The second witness Inspector Opeti Lolo told the court that in the evening of 21^st October, 2019, he was instructed to visit a crime scene in Buabua, Lautoka. He was accompanied by Sgt. Timoci, Cpl. Paulo, PC Suita and an officer from the Forensic Department. The vehicle was driven by Sgt. Timoci, they went to the Headquarters so that some things could be taken from there.
    
24. The witness was sitting in the front passenger seat at this time it was after 10.00 pm, from the street lights he saw a person climbing down a fence and running across the road which was suspicious. The police vehicle was driven in pursuit of this person. After a few rounds, in the city this person was seen standing opposite the Lautoka Muslim Primary School beside the street light.
    
25. The police vehicle was stopped next to this person, it was observed that this person was sweating, breathing heavily and was looking around. This person was wearing a black vest and black shorts, from the vehicle the witness called out to this person who did not respond but ran away.
    
26. At this time, PC Siuta who was sitting on the back tray of the vehicle jumped out and chased this person on foot, initially this person was running by the roadside then jumped into the drain and ran onto the ground. PC Siuta was in pursuit, as soon as the vehicle was stopped, Sgt. Timoci and Cpl. Paulo ran to assist PC Siuta while the witness stood guard of the police vehicle.
    
27. After about 2 minutes Sgt. Timoci ran back to the vehicle saying that PC Siuta had been badly injured and the assailant had been arrested near the ticket booth of Churchill Park by PC Paulo. The vehicle was driven inside the ground and PC Siuta was rushed to the Lautoka Hospital.
    
28. Next morning the witness saw the suspect in the charge room of the Lautoka Police Station he saw visible injuries on this person around his face. The witness did not assault or put pressure on this person at any time and he also did not see any other police officer assault, threaten or put pressure. The witness recognized the accused in court, the accused has not made any formal complaints against him or any of his colleagues.
    
29. In cross examination the witness agreed that another police vehicle came to pick the accused and Cpl. Paulo and took them to the police station. The witness maintained that when he saw the accused the next day after his arrest he saw visible injuries on the face of the accused.
    
30. The third witness PC Sheik Mosheem informed the court that on 21^st October, 2021 during the night he was instructed by ASP Maciu at about 23:10 hours to go to Churchill Park ground no. 2. The witness went with officer Maitava and some other police officers.
    
31. In less than 5 minutes the witness was at Churchill Park ground no 2, here he saw PC Paulo with the suspect. Upon inquiry, he was told that the iTaukei boy sitting on the ground was the suspect in the stabbing case. The witness also noticed that the suspect’s left side of the face was swollen. He was able to see this from the police vehicle light. The suspect was wearing shorts and a torn vest.
    
32. While the witness was at the ground, he did not assault the suspect or see any police officer assaulting the suspect. After this, the suspect was taken to the vehicle he was seated at the back seat of the police vehicle in the middle with the witness on one side and PC Atalifo on the other side of the suspect.
    
33. The suspect was taken to the Lautoka Police Station and there was no assault on him on the way. The suspect was handed to Cpl. Taniela at the Lautoka Police Station.
    
34. In cross examination the witness stated that he was not angry that his workmate had died he denied that he had assaulted the accused by punching him on his face. The witness at the time of the handing over of the suspect did not inform Cpl. Taniela that the suspect needed to go to the hospital.
    
35. The fourth witness Suresh Mani a Justice of Peace informed the court that on 24^th October, 2019, Sgt. Vimal Pillay from Lautoka Police Station came to his house and asked him to come to the police station to interview the accused.
    
36. The witness went in the police vehicle, when the witness went inside one room in the police station, there were three police officers already in the room. According to the witness, they were there for his safety, one officer was sitting down at the table writing something and two officers were near both the doors of the room. The witness sat at the table with the accused sitting on his left.
    
37. A police officer gave the witness a piece of paper he noted the name of the accused and where he was from, at the time of asking the above the witness had a good look at the accused. The accused at the time had long brown hair, was handcuffed and sitting beside the witness. The witness had asked the accused whether he was assaulted by the police officers, the response was no, when asked if he was given food, the accused said yes and the accused appeared to be normal to the witness.
    
38. In cross examination, the witness agreed he was briefed by Sgt. Pillay what to ask and when he was talking to the accused, the police officers were present in the room and that the accused did not say much.
    
39. The fifth witness PC 5233 Atalifo reported in for duties at the Lautoka Police Station at about 22:30 hours and he was instructed to assist in the capture of the suspect in a stabbing case.
    
40. The witness received the instructions at about 23:10 hours, he then boarded a police vehicle and went to Churchill Park with some other police officers. At the ground, the witness approached DC Paulo and next to him was the suspect who was seated on the ground. The witness was able to see the suspect and DC Paulo from the police vehicle headlights.
    
41. The witness was also able to see the left side of the suspect’s face which was swollen, the witness and DC Sheik held the arms of the suspect and escorted him to the police vehicle, the suspect did not resist. In the vehicle the suspect was seated in the middle of the back seat between him and DC Sheik, PC Amit was the driver, PC Samisoni was in the front passenger seat and DC Mosese was seated on the back tray of the vehicle. According to the witness, no one talked in the vehicle.
42. At the Lautoka Police Station, the suspect was handed over to Cpl. Taniela. The witness denied the allegation of assault raised against him by the accused. He stated that he did not assault the suspect at the time he was escorted from the ground to the Lautoka Police Station.
    
43. In cross examination the witness stated that the accused had voluntarily walked to the waiting police vehicle, the witness did not recommend that the accused be taken to the hospital since he was only following orders to bring the accused to the Lautoka Police Station. When it was suggested that after the accused was brought to Lautoka Police Station, he was taken to a room and assaulted, the witness denied this and said the accused was left in the charge room.
    
44. The witness maintained that he did not assault the accused at any time in a room at the Lautoka Police Station. According to the witness, they were instructed by the superior officers not to assault the accused. The witness denied the accused was taken to the Ba Police Station because he and the other police officers had assaulted him.
    
45. The sixth witness Inspector Ilario Belo informed the court that on 21^st October, 2019 after 10.00 pm, he was instructed to take care of the security and safety of the accused and for him to be taken to the Ba Police Station. The witness had also observed the accused had facial injuries and bruises on the left side of his face and also his jaw.
    
46. The accused was taken to Ba Police Station in the police vehicle from Lautoka Police Station where the accused was searched and locked. The witness was accompanied by PC Salabogi, PC Keasi and the driver was PC Zamil. It was nearly 2.00 am they arrived at Ba Police Station.
    
47. On 22^nd October, after 8.00 am, the accused was taken to the Lautoka Police Station and then to the Lautoka Hospital due to the injuries seen on him. The accused was given breakfast at the Ba Police Station. According to the witness, the accused did not complain of any assault by any police officer nor had any issues. During the journey to Lautoka Police Station, no one assaulted or abused the accused.
    
48. At the Lautoka Hospital, the accused was seen by a doctor. The witness and the escorting officer were present when the accused was medically examined. The doctor had asked for an x-ray to be done at Ba Hospital. There was no assault on the accused on the way to Ba. At the Ba Hospital the accused was x-rayed and the report was sealed in an envelope. The team again went to Lautoka Hospital, on the way there was no abuse or assault on the accused.
    
49. At about 1.00 pm, the x-ray result was given to the doctor. After checking all the documents, the accused was cleared for interview to be conducted. By this time, it was about 2.00 pm, the accused was taken to the Lautoka Police Station and kept at the Crime Officer’s office for his safety until the caution interview started at 6.00 pm. The witness was the witnessing officer and he was present throughout the caution interview.
    
50. The witness stated that when the accused was interviewed, the other officer present was the escorting officer. The escorting officer was sitting at the doorway to prevent anyone else from coming in and was on standby to escort the accused if he needed anything outside the interview room.
    
51. The interview was suspended at nearly 8.00 pm, the suspect was given sufficient breaks, meals and refreshments, the allegation was explained properly including his right to remain silent and the consequences of not remaining silent and also given all his Constitutional rights.
    
52. After the interview was suspended, the accused was taken to Ba Police Station. The witness stated the suspect was treated well, during the interview the suspect was communicating well with the Interviewing Officer. There was no abuse or assault on the accused. On the way to Ba, on the first day the accused was not assaulted or abused, dinner was given to the accused on arrival.
    
53. Next day 23^rd October at about 6.00 am, the accused was released from the Ba Police Station cell block and escorted to the Lautoka Police Station for the continuation of the interview. The accused was treated well, he was talking, on the way there was no assault or abuse on the accused. At about 7.00 am, the accused was brought to Lautoka Police Station where he had his breakfast and then the interview recommenced.
    
54. The accused was given all his rights, he signed and was not forced to do so, there was no assault or abuse, breaks were given, with meals and refreshments. On this day, there was a scene reconstruction and the witness was part of this. The accused was voluntarily leading the team during the reconstruction. After this, the accused was escorted back to the police station and the interview recommenced at 4.00 pm and was concluded at 7.00 pm. The accused was given the chance to read the interview which he did and the Interviewing Officer also read the interview to the accused.
    
55. The accused was given the opportunity to alter or delete anything in the interview but he did not. Thereafter, the interview was signed by the accused, the Interviewing Officer and the witness. The caution interview of Vilimone Lalaobouma dated 22^nd and 23^rd October, 2019 was marked and tendered as prosecution exhibit no. 1.
    
56. The witness maintained that the accused had read his caution interview and voluntarily signed, no one swore at the accused. The Interviewing Officer then handed the accused over to the Charging Officer. The accused was kept at the Lautoka Police Station.
    
57. In cross examination the witness agreed the first time the accused was taken to the Ba Police Station from Lautoka Police Station was 01:55 hrs. The injuries he had seen on the accused were a swollen jaw and the left side of his face. Instead of taking the accused to the hospital he was taken to the Ba Police Station.
    
58. When it was put to the witness that during the first day’s trip to Ba Police Station, PC Mosese had punched and slapped the accused, the witness denied this and stated that the reason why the journey took 1 hour was because he was at the Lautoka Hospital where he was picked from, then he was brought in the same vehicle to the Lautoka Police Station to pick his personal items. Thereafter, he briefed the other officers of the reason why the accused was being taken to Ba Police Station.
    
59. The witness denied that while the accused was interviewed, other police officers had sworn at him in his presence. The accused had read the interview before signing and it was a lie that he was forced to sign.
    
60. The seventh witness Cpl. 4949 Pita informed the court that he is working for the Crime Scene Investigation Department, on 23^rd October 2019 he was instructed to video record the scene reconstruction.
    
61. The investigation team was led by the Interviewing Officer Cpl. Timoci, the escorting officer of the accused DC Tevita Rika, after recording the scene reconstruction the witness downloaded the footage into two DVD’s which was given to the Investigating Officer. The video recording of the scene reconstruction was marked and tendered as prosecution exhibit no. 2A and 2B. The DVDs were played in court.
    
62. In cross examination the witness was asked to explain what the accused had said to the Interviewing Officer near the ticket booth in the iTaukei language. The witness told the court the accused had told Cpl. Timoci that it was here he was assaulted by the arresting officer. The witness also stated that from the video he could not see any visible injuries on the neck of the accused. The witness agreed the accused was surrounded by police officers during the scene reconstruction and there were about 6 to 7 of them.
    
63. In re-examination the witness clarified that the reason for the presence of 6 to 7 police officers was to provide security to the accused from being harmed by the family members of the deceased and to control the traffic flow.
    
64. The eighth witness DC 3333 Kaliova Vakaruru informed the court that on 23^rd October, 2019 he was instructed to charge the accused at the Lautoka Police Station, Crime Office. The charging commenced at 19:50 hrs in the English language. The witnessing officer was PC Meli Doughty. The charging was conducted in a question and answer format on the computer.
    
65. When the accused was escorted to the Crime Office, the witness had observed that the accused was a bit injured with a slight bleeding from his nose. Before the charging had commenced he inquired with the team leader ASP Maciu whether the suspect had been medically examined.
    
66. Upon receipt of confirmation that the suspect had been medically examined the witness asked the accused if he was ready to proceed with the charging to which the accused had replied he was ready. According to the witness the accused was given all his Constitutional rights, right to remain silent, the consequences of not remaining silent and so on.
    
67. Before charging, the accused wanted legal aid assistance. The witness had explained this request to the Crime Officer who had stated that after the charging arrangements will be made with Legal Aid about the accused legal representation. The witness stated that he was supposed to have contacted the Legal Aid Commission immediately but did not.
    
68. After the charging finished it was printed and given to the accused to read which he did for 5 minutes and then signed. The charge statement of Vilimone Lalaobouma dated 23^rd October, 2019 was marked and tendered as prosecution exhibit no. 3.
    
69. The witness denied the allegation that the charge statement was obtained in circumstances that were unfair and oppressive to the accused. According to the witness the accused was given all his rights, reading time at the end of the charging, signing the charge and made a statement on his freewill.
70. The witness also denied the accused was threatened, assaulted and forced to make those admissions he maintained that the accused was not threatened or assaulted at any time during the charging.
    
71. In cross examination the witness stated that the accused was given the printed copy of the charge statement which the accused had read and he was also given his right to remain silent.
    
72. The ninth witness Dr. Agnes Boyd informed the court that she graduated from the Fiji School of Medicine with an MBBS degree she has worked at the Emergency Department, Lautoka Hospital from 2012 to 2019. From 2019 the witness joined a private medical practice and is still employed there.
    
73. On 22^nd October, 2019 the witness had examined the accused at the Lautoka Hospital the Fiji Police Medical Examination Form of the accused dated 22^nd October 2019, was marked and tendered as prosecution exhibit no. 4.
    
74. According to the witness the patient was brought by a police officer who was present throughout the medical examination. The patient had informed the witness “last night in police custody he was kicked and thrown to the ground, punched by more than 5 officers.” The patient also stated that he was not under the influence of drugs or alcohol.
75. The patient was speaking clearly and coherently with the witness despite the police officer being present. The witness carried out a physical examination of the patient from head to toe.
    
76. The specific medical findings were:
    
    1. Facial swelling (left) and tenderness at the frontal (forehead), zygomatic maxillary (right beside the nose) and TMJ joint where the jaw is. According to the witness tenderness means upon physically touching the injured area the patient was complaining of pain;
       
    2. Nasal bridge swelling and tenderness, dried blood noted over nostrils;
       
    100. Multiple that is more than 3 bruises noted on the inner buckles (inside the mouth) on right and the lower upper inner lips. Blood clot underneath the skin;
         
    4. Tenderness on the lower chest wall bilaterally over the chest wall and there was no obvious bruises noted;
       
    5. Healing wounds and sores on his legs which was there prior to the physical examination.
       
77. The witness explained that she had observed acute injuries on the patient which could have been anywhere between 0 to 6 hours ago but the healing sores on the legs would have been about 2 to 3 days old. The witness also added that there can still be swelling and tenderness even after 12 hours.
    
78. In her professional opinion the witness stated that the injuries were due to blunt force trauma such as slapping, punching may be from one to one fighting. The witness had ordered an x-ray of the face and chest, and there were no fractures noted. Finally, the witness stated that the history related by the patient was inconsistent with her medical findings.
79. In cross examination the witness agreed that she had not noted in her professional opinion that the patient’s history was inconsistent with her medical findings. She had only noted blunt force trauma to body.
    
80. The tenth witness PC 5824 Mosese Salabogi informed the court that on 21^st October 2019, he reported in for duties at 7pm and at about 1.10am on 22^nd he was instructed to assist in escorting the accused to Ba Police Station.
    
81. At about 1.20 am the witness released the accused from the police station and escorted him to the vehicle. The witness noted that the left side of the accused face was swollen. The driver of the vehicle was PC Zamil and PC Keasi was with them as well. The vehicle was driven to the Lautoka Hospital to pick Inspector Belo, since Inspector Belo had left his bag at the police station the vehicle was driven back to the police station. At the police station Inspector Belo also briefed all the police officers on the reason why the accused was taken to Ba Police Station and also no one was to assault the accused at any time.
    
82. The team arrived at Ba Police station at about 2.15 am the witness after searching the accused locked him in the cell. The accused was quiet throughout the journey and no one spoke to the accused or assaulted him. The witness after locking the accused in the cell returned to the Lautoka Police Station. The witness said it was a lie that on the way to the Ba Police Station he and another police officer had punched, and slapped the accused in the vehicle and had threatened the accused by saying “if anything happens to Sgt Siuta the accused would be killed.”
    
83. The witness also stated that it was another lie that before the caution interview was conducted he and some police officers had assaulted the accused. The witness further stated that the last time he had seen the accused was during their escort to Ba Police Station.
    
84. In cross examination the witness stated that at 1.20 am the accused was escorted to Ba Police Station on 22^nd October. When referred to the station diary the witness agreed the time recorded was 01:55 hours he had left Lautoka Police Station for Ba Police Station.
    
85. The witness denied assaulting the accused by slapping and kicking him with other police officers in a room at the Lautoka Police Station before taking him to Ba Police Station.
    
86. The witness also denied he had punched the accused inside the police vehicle whilst on the way to Ba Police station or that he had threatened the accused by saying “if anything happened to Sgt Siuta the accused would be killed.”
    
87. The witness agreed the deceased was his friend and he was upset when he came to know of his death. He also agreed that any suspect’s health and safety was paramount, however, despite seeing the accused swollen face the accused was not taken to the hospital. According to the witness he was only following instructions of his senior officer which was to take the accused to Ba Police Station.
88. The eleventh witness Dr Repa Ben informed the court that she graduated with an MBBS degree from the Fiji School of Medicine in the year 2015. Currently, she is based at the CWM Hospital, Emergency Department. On 24^th October, 2019 the witness had examined the accused at the Lautoka Hospital in her consultation room. The Fiji Police Medical Examination Form of the accused dated 24^th October, 2019 was marked and tendered as prosecution exhibit no. 5.
    
89. The witness had consulted the accused on a one to one basis there was no one else present in the room. The accused did not know why he was brought to the hospital but he did complain of left side chest wall pain and left side neck pain for the past 2 days.
    
90. The witness undertook a thorough head to toe examination of the patient. The specific medical findings were:
    1. Right eye was slightly swollen specifically the lower eye lid which had purplish discoloration. According to the witness, in this case it was a bruise and the possible causes could be a simple fall, assault, punch, push whereby patient falls onto the ground and hits onto an object;
       
    2. Abrasion on the right side of the nose had healed;
       
    100. Abrasion of around 5 to 7 cm long superficial in nature which was also healed. According to patient it was an old injury at the back of the patient (see back view of the diagram in appendix 1);
         
    4. Left side chest wall upon touch was slightly tender which was painful over 4^th to 7^th ribs, however, there was no bruise or abrasion noted (see front view diagram at appendix 1). This injury could be caused by:

(a) blunt force;

(b) motor vehicle accident;

(c) simple fall; or

(d) assault.

91. The witness stated that the chest wall pain was a subjective expression by the patient hence an x-ray of the ribs was ordered. The x-ray report stated that there was no rib fracture. In the professional opinion of the witness the accused had suffered a soft tissue injury caused by blunt force trauma which was healing.
    
92. The final witness Cpl 4342 Paulo Cata informed the court that on 21^st October 2019, he was instructed at about 22.13 hours to go to Buabua, Lautoka to check a body found in a house. The witness was accompanied by Inspector Opeti, Sgt Timoci and DC Siuta, Sgt Josateki and Cpl Pita. They went to the Western Division Headquarters to pick the body bag and the camera.
    
93. After a short while a message was received on the radio telephone that an Itaukei boy had been seen climbing the roof of some properties in Nasoki street and was being chased by a police officer. Whilst in the police vehicle the witness saw an Itaukei boy jump over the fence of a car wash and run across the road to the other side of the tramline.
    
94. The police vehicle was turned around to follow this boy, at the junction of Valetia Street and Mana Street the witness saw the same boy standing under the street light. He was wearing a black vest, shorts and green hat. The police vehicle was stopped in front of this boy as soon as Inspector Opeti opened the door to get out of the vehicle this boy ran away.
    
95. At this time, DC Siuta got off the vehicle and followed this boy to the Churchill Park. The witness also got off the vehicle and ran to ground number 2 with Sgt Timoci. When the witness was about 10 to 15 metres behind this boy he told this boy to stop but he did not stop until he was near the ticket booth.
    
96. By this time the witness was joined by Sgt Timoci, again the witness called out for his boy to stop when this person turned around he saw the shine of the knife blade. There was sufficient light coming from the Tappoo’s Building, the witness upon seeing the knife took a back step and then again told the boy to stop, at this time the witness told Sgt Timoci that the boy had a knife in his hand.
    
97. This boy continued holding the knife and tried to escape by climbing the fence, he was also showing the knife, and threatening the witness, and Sgt. Timoci and was aggressive. Sgt. Timoci managed to pick a piece of block and threw it at the suspect who tried to cover his face with both hands, the knife fell after the block hit his hand.
    
98. The suspect also fell to the ground, as soon as this happened the witness ran onto the suspect from behind and there was a small scuffle between the two. The witness was able to sit on the back of the suspect. The knife was picked by Sgt Timoci. According to the witness the suspect was pushed on the ground after he tried to stand up. The suspect became violent when the witness tried to get hold of the suspect’s hand.
    
99. The suspect was facing downwards and the witness was on his back, at this time the witness removed his neck tie and then tied both the suspect’s hands. After making the suspect sit on the ground the witness explained the reasons for his arrest, right to remain silent and the consequences of not remaining silent which was understood by the suspect.
    
100. After a while a police vehicle came and from the light of the vehicle the witness saw the face of the suspect whereby his left eye was swollen, some bruises were on top of the left eyebrow, and on the left side of the nose. The suspect was then escorted to the Lautoka Police Station by DC Sheik.
     
101. The witness maintained that the allegations raised by the accused in his grounds of voir dire were not true. The accused was not assaulted at any time, was given all his rights during the arrest and was treated fairly.
     
102. In cross examination the witness denied punching the accused on his face when the accused was lying on the ground, he maintained at the time of arrest the accused was given all his rights. After the hands of the accused were tied the witness denied punching the accused.
     
103. Upon questioning by the court the witness stated that he had arrested the accused at about 11pm.
     

104. This was the prosecution case.

DEFENCE CASE

105. The accused opted to remain silent and did not call any witness.

ANALYSIS

106. The prosecution submits that all the police officers involved in the arrest, investigation, caution interview and charging of the accused had acted appropriately and in the interest of the accused at all times. It was the accused who had resisted arrest and aggravated the situation, by being aggressive whilst in possession of a knife.
     
107. The injuries suffered by the accused at the time of his arrest was due to the fact that the accused had resisted arrest, Cpl. Cata had firstly told the accused to stop but he did not, secondly, when the officer was pulling the accused hands back when trying to effect arrest the accused did not cooperate.
     
108. This officer had to use reasonable force in order to tie the hands of the accused to his back with the officer’s neck tie. Furthermore, the accused was taken to the doctor before his caution interview and the doctor had made a noting of his injuries which were consistent with one to one struggle. This is what Cpl. Cata told the court hence the prosecution is asking this court to consider the circumstances of the arrest and how it was effected.
     
109. The injuries seen by the police officers and Dr. Boyd were consistent with what Cpl. Cata had told the court. Dr. Boyd after thoroughly examining the accused from head to toe came to the conclusion that the injuries caused to the face and body of the accused were inconsistent with what the accused had told her.
     
110. When the accused was seen by Dr. Boyd despite the presence of the police officers in the examination room the accused had boldly told the doctor that he was kicked and thrown to the ground, punched by more than 5 officers does suggest that the accused was not fearful or afraid of the police officers who were present with him.
     
111. 111. Additionally, the accused on the 24^th had met Suresh Mani a Justice of Peace and he did not raise any complaint against the police officers shows that the accused was treated properly whilst in the custody of the police and there was nothing for him to complain about.
     
112. After the caution interview and the charging process had concluded the accused before being produced in court was again taken for a medical check-up. Dr. Ben after a thorough examination did not find any injuries on the accused which would have suggested he was ill treated by the police officers.
     
113. The scene reconstruction was video recorded and played in court there is nothing in the footage that showed or suggested that the accused was under any threat to explained what he had done during the night of the allegations. In the video it was the accused who played the leading role and he was giving clear and concise details of what he had done.
     
114. On the other hand, the defence submits that the accused was subjected to police brutality from the time he was arrested. The police officers had assaulted him by punching, kicking, and manhandling him. The injuries he had received were consistent with assault. The police officers were angry that one of their colleagues had been injured by the accused so they had ill-treated the accused.
     
115. When the accused was taken to the Lautoka Hospital on the first occasion he told the doctor about the police brutality which is reflected in his medical report. Furthermore, he got injured at about 11pm on the 21^st and he was taken to the hospital at around 9:35 am the next day but was not seen by the doctor until 11am which is 12 hours later. The police officers deliberately delayed taking him to the hospital to cover up their wrong doing.
     
116. The Justice of Peace should not be believed because he was coached by Sgt. Pillay to ask questions that was not in the interest of the accused or an independent assessment of what the accused had undergone. Mr. Mani was not forthright because he did not make any observations about the accused injuries which were visible in the video.
     
117. According to Dr. Boyd the injuries seen on the accused were acute injuries inflicted on the accused about 6 hours ago.
     
118. Finally, the defence is saying that during the scene reconstruction near the end at the ticket booth the accused had told the interviewing officer in the iTaukei language that he was assaulted by the arresting officers but the officer ignored the accused.
     

DETERMINATION

119. There is no dispute that the accused was arrested on 21^st October, 2019 by Cpl. Paulo Cata at about 11 pm at Churchill Park. The accused was brought over to the Lautoka Police Station and then taken to the Ba Police Station for his safety. The accused was taken to the Lautoka Hospital twice, firstly, before his caution interview and secondly, before being produced in court.
     
120. The police officers who were part of the investigation gave evidence denying all the allegations raised by the accused in his amended voir dire grounds. The police officers told the court that the accused was given his Constitutional rights at the time of arrest on the 21^st and thereafter at the time of his caution interview and charging. There was no threat, force, assault or any pressure put on the accused at the time of his arrest or whilst being taken to the Lautoka and Ba Police Stations, before, and during the caution interview and charging.
     
121. The main focus of the allegation raised by the accused is that of assault by the arresting police officers, followed by assault when transported to the Lautoka Police Station then in a room at the Lautoka Police Station and on the way to the Ba Police Station. All the police officers have vehemently denied any wrong doing.
     
122. They maintained that they did not do anything wrong and they were also instructed by their Senior Officers not to assault or ill treat the accused at any time. I prefer the evidence of Sgt. Timoci Vuli and Cpl. Paulo that the accused was holding a knife and was behaving in an aggressive manner.
     
123. This court accepts that police officers Sgt. Vuli and Cpl. Cata were faced with an unusual situation where the accused was holding a knife and showing aggression towards them and was refusing to throw away the knife he was carrying.
124. Sgt. Vuli and Cpl. Cata gave a detailed account of what had happened on the night the accused was arrested and no doubt the injuries sustained by the accused were consistent with the evidence of Cpl. Cata who gave a coherent and detailed description of how he was able to arrest the accused. Dr. Boyd also gave a reliable account of her medical examination of the accused and her medical findings were consistent with what Cpl. Cata told the court. I also accept the honesty of Sgt. Vuli that he had to throw a block on the right hand of the accused to disarm him, however, there was nothing said by the accused about this incident to the doctor and also the doctor did not see any injuries on the accused right hand.
     
125. I also accept that the caution interview of the accused was properly and fairly conducted and the accused was given all his rights, and cautioned properly throughout the interview. The accused understood all his rights and gave his answers voluntarily and on his freewill.
     
126. In respect of the evidence of Suresh Mani I accept that the accused was surrounded by police officers and therefore he may not have felt comfortable in relaying anything to the Justice of Peace. The fact that Suresh knew Sgt. Pillay and had a discussion about what needed to be asked from the accused (who had undertaken such an exercise for the first time) does not adversely affect the reliability of this witness evidence. Suresh had extracted some information from the accused the fact that the accused was not responding did not assist this witness as well.
     
127. The accused was also seen by Dr. Ben before going to court there were no police officers present in the consultation room and yet the accused did not raise any complaints against the police officers does suggest that the accused had no complaints to raise with the Justice of Peace or with Dr. Ben.
     
128. All the prosecution witnesses were cross examined at length about their involvement in the investigations and all of them were able to withstand cross examination and were not discredited.
     
129. The fact that the accused was not taken to the hospital upon his arrest does not suggest that the police officers were hiding the injuries of the accused. The accused was eventually taken to the hospital on the same day he was taken to the Ba Police Station which is the 22^nd. There was no suggestion made by the defence that the injuries may have disappeared in a few hours or were not visible to the doctor. The accused had told the doctor whatever he wanted to say and the doctor had recorded what she had seen.
     
130. I do not accept the accused told the truth to Dr. Boyd when he told her that he was assaulted by five police officers. This aspect of Dr. Boyd’s evidence was not disputed, in her evidence the doctor made it clear that the history narrated by the accused was inconsistent with her medical findings. This means what the accused told the doctor did not match her medical findings.
     
131. The scene reconstruction video also showed the accused clearly explaining what he had done and the details he gave were without any force or pressure on him. The fact that the accused complained about the arresting police officers assaulting him near the ticket booth does not add to his credibility since he did not give any details of the assault which would have prompted any further investigation by the interviewing officer.
     
132. As for the charge statement, I have noted that when the accused was asked at Q. 8 Do you wish to seek assistance from the Legal Aid? The accused had said yes. Unfortunately, the accused was not provided any assistance in this regard. The Charging Officer in his evidence did say that he had informed his Senior Officer about this but nothing was done. By no means is the Charging Officer to be blamed he had come from Namaka Police Station to assist in charging the accused but his Senior Officer in particular the Crime Officer did not assist. The Charging Officer was honest when he told the court that he should have facilitated the accused request to consult a legal aid lawyer.
     
133. The above omission is crucial to the entire charge statement, section 13 (1) (c) of the Fijian Constitution is self-explanatory in this respect. The failure to arrange for a private consultation between the accused and a legal aid lawyer had resulted in the accused being deprived of legal advice which would have assisted him during the charging. In the circumstances, I accept that the accused was prejudiced as a result of the failure by the Charging Officer to allow the accused to consult with a legal aid lawyer before he was charged.
     

OBSERVATIONS

134. Although not raised by any counsel, this court takes note that some answers given by the accused in his caution interview require attention.
     

These are as follows:

“Q: 45 What happened next?

A: I went and stole a 40 oz bottle of whisky from Yees Supermarket at Denarau.

Q: 47 Then what happened?

A: The Security Officers came and took me to their office where I was reported to police.

Q: 70 You earlier told me in your answer to Q. 47 that the Security Officer’s at Yees Supermarket had brought you to their office and reported you to police. What happened after that?

A: The police came and took me to Border Police Station where my statement was recorded and I was kept in their custody.

Q: 71 Then what happened?

A: I was brought to Nadi Magistrate’s Court on Monday this week where I was bailed by the Magistrate.

Q: 142 Why is it that you decided to stabbed him to death?

A: I was angry and I did not want to be arrested by police as I am fed up of being arrested by them and that is why I decided to stab him to death.”

135. The prejudicial value of the above answers outweigh its probative value and is also unfair to the accused suggesting that he was a thief, has a pending case in court which ought to be removed from the record of interview. In view of the above and in exercise of my discretion questions and answers 45, 47, 70 and 71 are to be blacked out. Answer to Q. 142 is to be “I was angry and I did not want to be arrested by police and that is why I decided to stab him to death.” The following from the answer is to be deleted “as I am fed up of being arrested by them”.
     

CONCLUSION

136. Upon considering the evidence adduced by the prosecution and the line of defence put forward by the accused, this court is satisfied beyond reasonable doubt that the admissions obtained by the police officers in the caution interview of the accused was given by him freely and voluntarily. On the totality of evidence, I prefer the evidence of Suresh Mani (Justice of Peace) and the police officers who were involved in the arrest, investigation, and the caution interview of the accused. The two doctors also gave reliable evidence which supports the police officers evidence.
     
137. As for the charge statement this court is not satisfied beyond reasonable doubt that the accused had voluntarily made a statement. The failure of the Charging Officer to allow the accused to consult a legal aid lawyer before his charging had prejudiced the accused from obtaining legal advice which had caused him to make an admission.
     
138. I therefore rule that the prosecution may tender in evidence at trial the caution interview of the accused dated 22^nd and 23^rd October, 2019 subject to the following:
     

a). Questions and answers 45, 47, 70 and 71 are to be blacked out;

b). Answer to Q. 142 is to be “I was angry and I did not want to be arrested by police and that is why I decided to stab him to death.”

139. I also rule that the charge statement of the accused dated 23^rd October, 2019 is inadmissible as evidence at trial.
     

Sunil Sharma
Judge

At Lautoka
31 January, 2022

Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.