Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

State v Waqanivalu [2024] FJHC 277; HAC195.2016 (26 April 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 195 OF 2016


STATE

-v-

1. ASELAI WAQANIVALU
2. ISAAC JAMES
3. ARE AMAE
4. JEMESA VAKACEGU
5. MAIKA TOVAGONE
6. TOMASI QANIUCI
7. JOELI NUKUNAWA
8. EMOSI BALEIDROKADROKA

Counsel : Mr. A. Singh with Ms. S. Prakash for Prosecution
: 1^st, 2^nd, 3^rd, 4^th, 5^th & 7^th Accused unrepresented
: Mr. R. Filipe for 6^th Accused
: Ms. K. Vulimainadave for 8^th Accused

Dates of Hearing : 4 April 2024 to 24 April 2024
Date of Ruling : 26 April 2024

RULING ON VOIR DIRE

1. The Prosecution seeks to adduce into evidence the caution statements of the 1^st , 2^nd , 3^rd , 4^th , 6^th and 8^th Accused and the charge statements of 1^st ,3^rd ,4^th , Accused recorded at the Lautoka Police Station.
   
2. The test of admissibility of all confessional statement made to a police officer is whether that was made freely and not as a result of threats, assaults or inducements made to the suspect 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 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. What I am required at this stage is to decide whether the interviews and charging were conducted fairly and whether the Accused gave the statements voluntarily. If I find that the confessions were obtained having violated constitutional rights of the accused, then I can in my discretion exclude the interviews and charge statements.
   
4. The burden of proving voluntariness, fairness, lack of oppression, compliance with constitutional rights where applicable, and if there is noncompliance, lack of prejudice to the accused rests at all times with the Prosecution. Prosecution must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.
   
5. The Accused persons who are unrepresented have filed their ‘grounds’ of voir dire by way of a hand written documents. The grounds (verbatim )are as follows:
   
6. The Voir dire grounds filed by Aselai Waqanivalu (The 1^st Accused) (filed on 14/8/2017):
   
   • (i) That I was arrested at Mulomulo (Nadi) at my girlfriend’s residence.
   • (ii) That during my arrest I was badly assaulted by the Arresting Officers
   • (iii) That when I arrived at the Station I was again threatened, slapped on the face and head just to admit to the allegation which I denied to.
   • (iv) That during my interview I was threatened by the Interviewing Officer to confess and admit to the allegation if not then will further assault me again.
   • (v) That since I was injured, in fear I had no option but to confess and admit with their readymade allegation.
     

7. The amended voir dire grounds filed by Isaac James (The 2^nd Accused):

1. THAT I the Accused is disputing the lawfulness of the Caution Interview Statement as it was obtained unlawfully with the use of force, threats, assault and was under duress the whole time.
   
   1. That on the 27/10/2016, Investigating Officers namely Simione, and other four (4) Police Officers tried to force me to admit to the allegation, which I told in respond, that I had no Knowledge about the said allegation and was threatened with torture and brutality if I had denied.
      
   2. That I the Accused was already under oppression, duress, brutality, inducement, then the said Police Officers namely Simione forcefully forced I the Accused to sign the prepared Statements conducted by him, with threats and assault.
      
   100. That I the Accused was denied my right to be seen by a Doctor by PC Simione.
        
2. THAT I the Accused was already under oppression, assault, threats, duress, unfairness, Was Not Given The Right To Read Through The Caution Interview, breaches of the Judges Rules, breached of my Constitutional rights under Section 13 (1) (c) / Section 11 (1), including the International Covenant on Civil and Political Rights under Article 10 (1) and the Universal Declaration of Human Rights was breached under Article (5). That these were all breached in the Caution Interview.
   
3. THAT on the 28^th of October, 2016, upon the next day, from the Lautoka Court Cell-block was then escorted to the Lautoka (old) Police Station, whereby I was informed that the Nakasi Police Officers from Suva are also waiting at the Charged room, since I was also a suspect for a matter in Suva and during the arrival at the (old) Lautoka Police Station charged room, then I was interrogated for that offence by the (Suva) Nakasi Police Officers.
   

(a) Which during the interrogation by the Nakasi Police Officers here in Lautoka, I was then interrogated for both (two) offences here in Lautoka, in which I was already under oppression, duress, and was in pain due to Police brutality.

(b) That the Police Officers of Lautoka namely 2943 Alipate and 4178 Sauqaqa including the presence of the (Suva) Nakasi Police Officers here in Lautoka during the Charge for both offences, that was conducted at the same time, same day, therefore the said Officers forcefully forced I the Accused to sign the prepared Charge Statements for both offences for Nakasi and Lautoka. This was through the use of threats and assault.

(c) That I was denied the Right to be seen by a Doctor by Sauqaqa 4178.

4. THAT during my first appearance in the Magistrates Court, I informed the Magistrate Court No. 3 Judge about the assault, threats by the Police Officers that was done while in Police custody.
   
   • 4.0 THAT I the Accused was then referred to the Punjas Health Centre on the 28/10/2016, to be seen by a Doctor.
     
   • 4.1 That the Caution Interview and the Charge Statement was obtained through unfairness.
     
     • (i) Caution Interview – Breaches

Breach of my Constitutional Rights under Section 13 (1) (c) in the Constitution under Section 11 (1) was breached.

Was under oppression, duress, inducement, assault, and force.

Breaches of Judge’s Rules (Not caution after every break), No right to read through the Caution Interview and was deprived my right to be seen by a Doctor while in custody.

Breach of the International Covenant on Civil and Political Rights under Article 10 (a), and the Universal Declaration of Human Rights under Article (5).

(ii) Charge Statement – (Unfairness, duress, oppression, was denied the right to be seen by a Doctor, assault, breach of my rights, my right under Section 13 (1) (c) of the Constitution was breached, due to one transaction.

8. The Voir dire grounds filed by Are Amae (The 3^rd Accused) on 19/5/2017
   
   • (i) That the Accused during the period of his arrest on or around the 28^th day of September 2016 at Suva he was assaulted by Police Officer Selio and the Strike Back Team at the Central Police Station.
     
   • (ii) That the Accused was assaulted whilst in the hands of the Police Officers in Suva and later being held at the Namaka Police Station. On 29^th day of September, 2016 at the Lautoka Police Station, the Accused was further assaulted by being kicked on the ribs and being punched on the face.
     
   • (iii) That despite for medical examination, the Accused was refused the same by the Police Officers.
     
   • (iv) That on 30^th September 2016, during the Caution Interview confessions and signatures of the Accused were involuntary since they have been obtained as a result of Police brutality.
     

9. The Voir dire grounds filed by Jemesa vakacegu (The 4^th Accused)

(i) That on the 29^th of September 2016, I was arrested as a suspect on one case at the Nakasi Police Station and whilst detained there, DC Silio Finau and Emori Qilu came with one Maika Tovagone for the purpose of confrontation in relation to this matter. I was then intimidated and assaulted by the above Police Officers.

(ii) That whilst taken down to the Lautoka Police Station on the 30^th of September 2016, I was locked up at the Market Police Post and on the 1^st November 2016, I was further assaulted by DC Silio at the Crime Office before being interviewed and charged.

(iii) That during interview and charged, I was intimidated and pressured to admit the offence by both the Interviewing and Charging Officer CLP 3018 Bimlesh N and DC 2942 Vimal Pillay.

(iv) That in the whole process of interrogation, I was induced threatened and pressured to admit the offence.

Further amended voir dire grounds dated 6/8/2020

(v) I, Jemesa Vakacegu would like to highlight before the Honourable Court Grounds of objections to the admissibility of the Caution Interview and state herein factors which led to the unfairness of the interview procedure.

(vi) That the Caution Interview was taken down whilst I was in oppression having regard that I was arrested on the 27^th of September 2016, and was detained in Police custody until my interview, which commenced on the 1^st of October 2016. This is a very oppressive and unlawful having regard that my Constitutional Rights to be brought before a Court of Law 48 hours after arrest was violated, and also that it was very oppressing being detained in the Police cell which led me to just say something to get me out from their custody.
(vii) That I was arrested for another matter in Nakasi (Suva) as a suspect, and then I was interrogated for it and then I was brought to Lautoka. This happened all in one transaction.

(viii) Furthermore, I am requesting the Court to order the use of my Medical Report from the (Punjas’ Health Centre, Lautoka) and also will require the Court’s transcripts on my very 1^st appearance where I had laid my complaint before the Presiding Magistrate at Court No. 3 (Lautoka) and injuries documented.

10. The Voir dire grounds filed by Tomasi Qainiuci (The 6^th Accused) on 20/6/2017

(i) That on 30^th September 2016, during the caution interview, confessions and signatures of the Accused were involuntary since they have been obtained as a result of Police brutality.

(ii) That during the Caution Interivew D/CPL 3018 BIMLESH N was present and he had punched the accused on his right cheek once when the Accused denied the allegations then badgered him by repeating to the accused the following statements “YOU WERE THE ONE WHO WAS DRIVING, IT WAS YOU”. These words were repeated until the Accused admitted the allegations.

11. The Voir dire grounds filed by Emosi Baleidrokodroka (The 8^th Accused) on 19/5/2017
    
    • (i) That the Accused voluntarily brought himself to the Nakasi Police Post after he had knowledge that the Police were looking for him.
      
    • (ii) That the Accused during the Caution Interview on 4^th day of October 2016 he was assaulted by the Police Officer known to him to be Police Officer Timoci alias Jim and Police Officer Marika and Police Officer Selio, at the Lautoka Police Station.
      
    • (iii) That the Accused did not admit to the allegations when being interviewed by WPC 5341 Barbara, hence, WPC Barbara called Marika and another two Officers, Jim and another iTaukei Officer whose name is unknown to the Accused.
      
    • (iv) That despite requesting WPC Barbara to be taken to the hospital for medical examination, the Accused was refused by the said Officer.
      
    • (v) That the Accused then during the Caution Interview sought for a break and requested to call his wife, Sera Ane whom he relayed the message to that the Police was beating and threatening him that should he fail to confess he will have the same fate as Soko, who died.
      
    • (vi) That the Accused sought before the Court to be taken to the hospital for medical examination, however, this was only done a week after the Order was granted by the Honourable Court.
      
    • (vii) That on 7^th October, 2016, during the Caution Interview, confessions and signatures of the Accused were involuntary since they have been obtained as a result of Police brutality.
      

Amended Grounds filed by Baleidrokadroka on 5/2/2020

(i) That when he was arrested by 4 Police Officers from Crime Unit namely Saimoni Qase, Ame Mesulame and 2 other Police Officers, he was not cautioned nor was he informed of the reasons of his arrest before he was taken to Nakasi Police Station.

(ii) That whilst he was at Nakasi Police Station, another Police vehicle from Nabua Police Station came to pick him and to take him down to the Western Division. He was then escorted by 4 Police Officers including one Officer Peceli PC 5704.

(iii) That while being transported from Nakasi Police Station along the road towards Volivoli village, Sigatoka, the police vehicle stopped. He was told to get off from the vehicle and board the police vehicle coming from Lautoka Police Station parked on the other side of the road. There were 4 police officers in the other vehicle namely Sulio, Timoci and 2 others.

(iv) That as soon as he boarded the police vehicle from Lautoka Police Station, the Police Officers, put a sack on his head covering his whole head and face. He was handcuffed behind his back and heard the Officers telling the driver to take them to Malevu Hill-top to him to be tortured because he was denying taking part in the alleged crime.

(v) That upon arrival at Malevu Hill-top, he was threatened to admit to the alleged offence or he will be tortured like Soko (a suspect who was allegedly killed at the same place by Police Officers).

(vi) That the sack was removed and he saw Police Officers Sulio and Timoci wearing hand gloves (surgical).

(vii) That in his presence, these Officers pounded chilies and they removed his pants and underwear. They then rubbed the chilies on his genitals and anus.

(viii) That during the interview, the Witnessing Officer threatened him to admit to the allegations or he will be taken back to Malevu Hill-top to be tortured again.

(ix) That the Interviewing Officer allowed him to make a phone call to his family during the interview, whereby he informed his family that he was being tortured.

(x) That at the same time, the Witnessing Officer heard him complaining and took the phone and punched him on the mouth which left a deep cut in the middle of his upper lip.

12. Generally, when the grounds of void dire have been filed through a legal practitioner, the court’s main focus will be on the specific grounds submitted. However, that may not be the case when the accused is unrepresented. The court will not confine itself to its examination to the specific grounds, but the whole interview process will be thoroughly scrutinized against the said tests for admissibility.
    

Summary of Evidence

Case for Prosecution

PW1 - DC Inoke Colati

13. On the 27 September 2016 DC Colati interviewed one Aselai Waqanivalu (Aselai) under caution at the Lautoka Police Station. Aselai did not complain of pain or of anything. Aselai was not assaulted, threatened or forced by him or any officer before or during the interview which was continued 28 September 2016.
    
14. Only Sgt. Meena, the witnessing officer, was present with him in the interview room. He noticed Aselai limping when he stood up. He saw injuries on his leg and dried up blood on the side of his ear. When he inquired, Aselai said that he was assaulted by a group of friends that he was drinking with. He asked Aselai whether he needed medical assistance. Aselai told him that he could go on with the interview and that after the interview he would like to be examined in hospital. Aselai was treated well and provided adequate rest, food and other facilities. Aselai was given an opportunity to contact his lawyer from the Legal Aid Commission. Aselai spoke to his lawyer for 25 minutes. He recognized the signed record of interview for Aselai which was tendered in evidence (PE1).
    
15. After the interview Aselai was taken for a medical examination so that a dressing to be put on the injuries on his legs. He denied the allegation that Aselai was threatened during the interview. Aselai was produced in Court 29 September 2016. During the interview Aselai was taken for a scene reconstruction in which Sgt. Nina, Sgt. Arvind and Constable Oro participated. Aselai had never lodged a formal complaint against any officer so far.
    
16. Under cross-examination Colati denied that on the 27^th Aselai was not taken out from the cell to be interviewed. He confirmed that PC Marika was part of the arresting team. He denied CPL Vimlesh was Aselai’s interviewing Officer.
    

PW2 - W/Sgt. 2381 Meena

17. Sgt. Meena was the Witnessing Officer during the interview of Aselai. She confirmed that the interview of Aselai was conducted on 27 and 28 September 2016 and that Aselai was not assaulted, threatened or forced.
    

PW3 - W/SGT Ana

18. On 29 September 2016, she received instructions to be the witnessing officer of a charge of Aselai that was conducted from 0810 - 0900 hours at the Lautoka Crime Office. Aselai was limping when he was brought to the charge room. She did not ask Aselai as to how he got the injuries. Aselai made a statement at Question 10 of the charge statement. Aselai was afforded all his rights. Aselai was not assaulted, threatened or put pressure by any police officer.
    

PW4 - Sailasa Koroitoga

19. In 2016, Sailasa was based at Lautoka Police Station. On 29 September 2016 he was instructed to escort the suspect Are Amae from Suva to Lautoka. He left early morning for Suva and escorted the Are Amae from Totogo to Lautoka in a police vehicle at around mid-day. He was accompanied by Constable Mosese and Constable Jone. The suspect Amae was well and in good health. He did not complain about anything or request for a medical. Amae had no injuries on his body. No officer assaulted, threatened or put pressure on Are Amae during the entire transport. Amae was handed over at the Charge Room at Lautoka Police Station and later escorted him to Namaka on the same night. He denied that whilst he was at Lautoka Police Station, Amae was assaulted by police officers by kicking on his ribs and punching on the face.
    
20. On 26 October 2016, he received instructions from Saimone Qase to go to Suva and arrest the pending suspect Isaac James who was still on the run. His team comprised Saimone Qase, Constable Timoci, and Constable Jone. Isaac James was arrested at around 8 p.m. from his house in Lami when he was surrendered by his family members. The reason for his arrest and his other constitutional rights were given. James was well and in good health when he was arrested. James was handcuffed as usual in the front when he was brought to the Totogo Police Station where he was searched and locked in the cell. He denied that James was handcuffed at the back after his arrest and that he was assaulted at Totogo Police Station by the Task Force Team.
    
21. On 27 October 2016 he escorted James was down to Lautoka in the morning. James was in good health, and he had no injuries. No complaint received from him. He denied punching and threatening by police officers when James was being taken to the police vehicle. Whilst being escorted from Suva, James was not assaulted, threatened or put pressure on him. James was handed over at the Charge Room in Lautoka.
    

PW5 - Constable Simione Yabia

22. In the year 2016, Simione was based at CID Lautoka Police Station. On 27 October 2016 he interviewed Isaac James (James) under caution at the Lautoka Police Station. Corporal Ranadi was present throughout the interview as the witnessing officer. No one else was present at the interview. James appeared to be fit and healthy before the interview and no complaint was received or no medical examination was asked for. He did not see any injuries on James prior to the commencement of the interview. Constitutional rights were afforded to James. Prior to or during the interview no officer assaulted, threatened or put pressure on James. James voluntarily signed the record of interview. He tendered the record of caution interview of James marked as PE3. James was given an opportunity to contact his uncle, but he was not successful in getting down his uncle. He was given sufficient breaks and food. The interview was concluded at 1837 Hrs. on the same day. He denied the allegations that James was assaulted and threatened during the interview. James had never lodged a formal complaint against him for assaulting, threatening or putting pressure on him.
    

PW6 - Dr Monish Nishan Khan

23. On 28 September 2016 at 5.09 pm, he examined Aselai Waqanivalu at the Lautoka Hospital. He tendered the medical report marked as PE4. It was just him and Aselai Waqanivalu that were present during his examination.
    
24. Aselai alleged that he was assaulted by a group of iTaukei youths at Tacirua, Suva a week prior on the 24 September 2016 with timber, stones and empty beer bottles. Aselai was calm, conversing well, and was not distressed.
    
25. He noted a long linear healing contusion with scab noted on the right thigh. A secondary scab noted on the right knee. A soft tissue swelling over the right foot dosel (top of the right foot). A blood stain was noted in right ear canal, but the ear drum was intact. The contusion was already showing signs of healing and the scab confirmed that this wound had gone to secondary phase where healing is well underway.
    
26. These healing injuries would have roughly happened anywhere between 3 days to one week ago. Soft tissue swelling on the right foot could have been a causal effect of trauma or infection. Those findings correlate well with the history provided by the patient for being struck by stones, wood, beer bottles. The blood sitting on that right ear canal is slowly drying up and could be 3 to one week old. The patient would have been in a fit condition to be interviewed on the day prior to the examination.
    
27. Under cross-examination, the doctor said he could not recall the name of the police officer who brought Aselai to hospital. DC Bimlesh was the name written on the front page. If a police officer was present during examination, he would have written the officer’s name in the Medical Report. He could not recall if he had any conversation with Bimlesh about the history.
    

PW 7 - W/ Inspector Ranadi

28. On 29 September 2016 from 8-9 am, IP Ranadi charged Aselai Waqanivalu at the Lautoka Police Station. DC Ananai was present as the witnessing officer. Aselai never complained of anything. No officer assaulted or put pressure on Aselai. All his rights were given. Aselai made a statement at question 10 and signed the statement. Aselai had never lodged any formal complaint for assaulting or threatening or putting pressure on him.
    
29. On 27 October 2016, she was present as the witnessing officer when Isaac James was being interviewed under caution by Constable Simione Yabia in the Crime Office at Lautoka Police Station. James was okay, no injuries were seen on him. All rights were given. There were no assaults, or anything done to him during the interview. James was not handcuffed during the interview. James never complained of anything prior to or during the interview. James’s uncle was requested to be present. But his uncle said he was so busy so he would be present the next day.
    
30. Under cross-examination by Aselai, Ranadi denied having seen Aselai at the station on 27^th and 28^th before being charged. She was not the officer who took Aselai to the cell block after charge. She denied her not being the Charging Officer of Aselai. She could recall that Aselai was just limping.
    

PW8 - ASP Sillio Finau

31. In 2016, Sillio was based at Lautoka Police Station. He was tasked to follow up of the carjacking near Kashmir. He and his team arrested Aselai Waqanivalu on 27 September 2016 from a container house of a farm land in Kajiqari, Nadi when he was having breakfast with his wife. He was accompanied by DC Marika and two other officers. Reason for arrest and rights were explained. No resistance offered and Aselai was not cuffed. Prior to his arrest Aselai complained of his injuries. He had some fresh marks of his injuries on the right ear and right knee. From there, he was brought to Lautoka Police station. He was never assaulted, threatened or put pressure on him during arrest or transport.
    
32. He denied the allegation that he had made Isaac James sit on a chair and pulled his tongue and started choking. Neither Aselai Waqanivalu nor Isaac James, had ever lodged any complaint against him.
    
33. He could not recall if he was a member of the team that had gone down to escort Emosi Baleidrokadroka somewhere in Sigatoka on 5 October 2016. He said exchanges of suspects happen at police stations and not on highways.
    

PW9 - Dep. Inspector Salesh Kumar

34. From 30 September 2016 to 1 October 2016, IP Salesh interviewed Are Amae under caution at Lautoka Police Station General Crime Office from 1100hrs. Detective Sgt. Salen was present right throughout as the witnessing officer. All the constitutional rights were given to the suspect. No assaults, threats or pressures were applied on Are Amae by any officer. He did not see any injuries on Amae. No medical examination was asked for though he was inquired at Q6 if he needed any. Amae signed the record of interview on his own free will. Amae was not forced to sign the interview. During the caution interview, only the witnessing officer was with him.
    
35. Under cross-examination by Are Amae, IP Salesh denied that he was not the interview officer of Amae. He could not explain why his name is not mentioned in the Lautoka Station diary. He denied that other officers came to the interview room and forced Amae to sign the record of interview.
    

PW10 - Salen Kumar

36. On 30 September 2016, Salen was instructed to be the witnessing officer for the caution interview of one Are Amae conducted by IP Salesh Kumar. Amae was very calm and cooperative. He did not see any physical injuries on Amae. No officer assaulted, threatened or put pressure on Are Amae. Amae did not complain of anything. No assault, threat or pressure was applied on Are Amae to admit to the allegations. He denied that Amae requested a medical examination and that it was denied. Whilst being interviewed Amae was never assaulted or forced by police officers to admit or sign.
    

PW 11 - ASP Harish Prasad

37. In 2016, ASP Prasad was stationed at Lautoka Police station as a sergeant. On 1 October 2016, at 1 p.m., he formally charged Are Amae at the general crime office when Amae was brought to the office. WPC Laisani was the witnessing officer. Amae appeared normal and did not complain about anything. Are Amae made a statement and signed the charge voluntarily. The record of the charge statement of Are Amae was tendered marked as PE6. No officer assaulted, threatened or put pressure on Are Amae.
    
38. Under cross-examination by Are Amae, ASP Prakash denied that he had never conducted a charge on Amae on 1 October 2016. He could not recall if Amae had injuries. He is not aware if his name is not written in the station diary.
    

PW12 - Constable Laisani

39. She was the witnessing officer when Are Amae was being charged by Sgt. Harish on 1 October 2016. Amae did not complain about anything. She did not see any injuries on Amae. Amae did not request for a medical examination. Amae was not assaulted, threatened or put pressure to make a statement or sign.
    
40. Under cross-examination, Laisani denied that she had never come in to contact with Amae at any time.
    

PW13 - PC Peceli Raiqeu

41. In 2016 PC Peceli was attached to Task Force. On 28 September 2016, at around midnight, he arrested Are Amae from his resident in Tacirua on the instructions of Inspector Qasi. When the arrest was made, Amae was with his girlfriend and no resistance was offered. Amae was cautioned and cuffed and explained the reason for arrest. He did not see injuries on Amae prior to his arrest. Amae was not assaulted or threatened. Amae was taken to Totogo Police Station at 0032hrs. He denied that Amae was assaulted by police officer Silio and the Strike Back Team at the Totogo (Central) Police Station.
    
42. He also escorted Emosi Baleidrokadroka on the 6 October 2016 from Nakasi Police Station at about 1525 hrs. He was instructed to take Emosi to Sigatoka. When they reached Sigatoka, one vehicle had come from Lautoka with another accused from Nausori. Constable Timoci told them to escort Emosi down to Lautoka Police Station because their vehicle was full. In his vehicle, Tabalailai, Eroni Nakuta and Emosi travelled with him. PC Timoci and another accused travelled in the other vehicle. Emosi was not assaulted or threatened during transport.
    
43. He denied that along the road towards Volivoli village in Sigatoka, the police vehicle stopped and Emosi was put in the vehicle that had come from Lautoka. He agreed that the Lautoka vehicle had Silio, Timoci and two others. He denied that Emosi was threatened to admit the alleged crime or else to be tortured at Malevu Hilltop. He denied that Silio and Timoci pounded chilies and rubbed chilies on Emosi’s genitals. When they reached Lautoka Police Station after 6 p.m., Constable Timoci came to the vehicle and took Emosi inside the Station. Since 2016 there has been no formal complaints against him for assaulting Emosi.
    
44. Under cross-examination by Ms. Vulimainadave the witness clarified and said that his vehicle had stopped in Sigatoka town at 1845hrs.and denied that a hand-over took place there. He denied that he had handed Emosi over at Lautoka Police Station.
    

PW14 - Detective Inspector Arvin Kumar

45. In 2016, Inspector Arvin was based at CID- Lautoka Police station. On 1 October 2016, he was the witnessing officer in the interview of Jemesa Vakacegu conducted by Detective Corporal Vimlesh in the Crime Office at around 10.25 a.m. He did not notice any injuries on Jemesa before the interview. Jemesa did not make any complaint. Prior to or during the caution interview, there was no assault, threat, force or intimidation on Jemesa. No complaint was received; no medical examination was requested.
    
46. Under Cross Examination, the witness denied that the injuries in his neck shown in his medical report were sustained during the interview. He denied that he had strangled Jemesa’s neck and tortured for him to give the answers that he wanted.
    

PW15 - Inspector Bimlesh Naicker

47. On 1st October 2016, Inspector Naicker interviewed Jemesa Vakacegu under caution at the Crime Office, Lautoka Police Station. Acting Detective Sgt. Alvin was present throughout the interview as the witnessing officer. Jemesa was fit and well and did not complain about anything. He did not see any injuries on Jemesa. No officer assaulted, threatened or put pressure on Jemesa during the interview. No medical examination was requested. Jemesa was given his rights. He denied that the witnessing officer Alvin had choked Jemesa’s neck and that is the reason why he admitted the allegations.
    
48. He was not present during the interview of Tomasi Qaniuci conducted by DC Apenisa although he had compiled the record of interview in his capacity as the Investigating Officer. He recognized the record of caution interview of one Tomasi Qaniuci. DC Apensia is the deceased now. DC 2195 Samuela, who was the witnessing officer at Tomasi’s interview is also dead.
    
49. He is not aware of the allegation made by Aselai Waqanivalu that, during the investigation, he was assaulted by police officers. In his presence Aselai was not assaulted, threatened or put pressure on him. Aselai has never made any formal complaint. Isaac James was not assaulted by police officers whilst he was kept in Lautoka Police Station, or during the investigation of this case. Are Amae was also investigated at the Lautoka Police Station. He is not aware if he was assaulted by police officers at the Lautoka Police Station. Are Amae was not assaulted, threatened or put pressure on him during the investigation. He never complained of anything. Emosi Baleidrokadroka was not assaulted, threatened or forced when he kept at Lautoka Police Station for the investigation.
    

PW16 - Constable Alipate Nadrau

50. On 1 October 2016, Alipate was the witnessing officer when Jemesa Vakacegu was being charged at Lautoka Police station by Vimal Pillay. Prior to the charge, he did not notice any injuries on Jemesa. Jemesa did not make any complaints to him. All the rights were given. Jemesa was not threatened, forced or intimidated during the charge. Jemesa made a statement and signed the record. Jemesa’s allegation that during the charge he was intimidated and pressured to admit the offence by the charging officer Vimal Pillay is not true.
    

PW17 - Sgt. Isikeli Rokodreu

51. In 2016, Isikeli was based at Nakasi Police Station. On the 29 September 2016, he was part of the team that arrested Jemesa Vakacegu from his father’s residence in Tacirua, Suva. They went to the residence and called Jemesa Vakacegu out of the house. Jemesa was drunk and resisted arrest. They managed to arrest Jemesa using reasonable force. They just held Jemesa and put him down and put him in the vehicle, but there was no assault or physical injuries. Jemesa was handcuffed, cautioned and informed the reason of arrest that he was wanted in a case of Nakasi and a robbery at Lautoka. He could not see any physical injuries on Jemesa during transport. He also escorted Jemesa back to Suva but he could not see any physical injuries on Jemesa.
    

PW18 -Saimoni Qase

52. Qase assisted in arresting Emosi Baledrokadroka and Isaac James. Emosi was arrested 5 October 2016 at his residence in Tacirua in Suva. He sought assistance from Emosi’s mother and the sister who assured that Emosi is willing to surrender himself to police. Then they went and arrested Emosi and took him to the Central Police Station. He is not aware if Emosi was tortured whilst being transferred from Suva to Lautoka.
    
53. Isaac James was on the run. The same concept that he had applied with Emosi was applied to arrest Isacc James. The family cooperated and when his team went to the residence James surrendered himself on 25 October 2016. Rights of the suspect was explained before the arrest. There was no need to assault, threaten or put pressure on Isaac James because he cooperated with the police team. He didn’t see any injuries on James. After the arrest, James was brought down to the Central Police Station for the transfer down to the West. James has not complained against him for assaulting, threating or putting pressure on him.
    

PW19 - Corporal Barbara

54. On 7 October 2016, Barbara conducted the interview of Emosi Baleidrokadroka at the General Crime Office at Lautoka Police in the presence of DC Marika as the witnessing officer. There were no scratch or injuries on Emosi. She did not receive any complaint from Emosi before or during the interview. All his rights were given. In her presence Emosi was not assaulted, threatened or intimidated. She tendered the record of caution interview of Emosi in evidence marked as PE 9.
    
55. Emosi was given time to contact his wife Sera Ame, over the phone as reflected after question 46. She denied that the witnessing officer took the phone and punched Emosi on the mouth when he overheard the complaint of police torture he was making to his wife. Emosi has never made any complaint against her or the witnessing officer since the interview.
    
56. Under cross examination by Ms Vulimainadave, Babara agreed that a break was given right after question 46 at from 1300- 1430 hours, for lunch when Emosi made his call to his wife in their presence. Emosi would have complained if he was punched in his mouth by Marika. She went for the reconstruction with the suspect as part of the interview and her statement dated 8 October 16 covered it. At the conclusion of the interview, she did not refer Emosi for a medical examination because there were no injuries on him.
    

PW20 - Marika Qolocava

57. Marika was instructed to be the witnessing officer for the interview of Emosi Baleidrokadroka conducted by WPC Barbara. He did not see injuries on Emosi. He received no complaints from Emosi. In his presence, no assaults, threats or intimidation were done on Emosi.
    
58. Under cross-examination by Ms. Vulimainadave, Marika denied that he was part of the Task Force Team that had gone down to escort Emosi from Sigatoka Police Station. He denied threatening Emosi to admit the allegations after punching on his mouth causing a deep cut in the middle of his upper lip. He admitted that Ilisapeci of CSI team also participated the reconstruction of the scene. He agreed that the CCTV footage was shown to Emosi during the interview.
    
59. Under cross-examination by the 1^st accused, Marika admitted that on 27th September 2016, his team arrested Aselai Waqanivalu and one Makereta Sadrata at Mulomulo, Nadi and brought in for questioning.
    

Defence Case

DW1: Aselai Waqanivalu (1^st Accused)

60. Aselai testified that he was arrested on 27 September 2016 from a place in Mulomulo, Nadi when he was with his girlfriend Makereta Sadrata and her relatives. Suddenly, a few people in civilian suits forcefully entered the house and started assaulting him. He later recognized them to be police officers. He and Makereta were taken in two different vehicles to the police station.
    
61. Whilst he was sitting with his girlfriend at the police station, the police officers were threatening him and then only he found out why they had brought him. Saimoni Qase also came and pushed his head and slapped his ears in front of his girlfriend and told him to tell the truth and, if not, they would assault him. His ear was injured, they did not take him to the hospital. They straight away conducted the interview. After conducting the interview, they put him in the cell and kept there until he was taken to Court.
    
62. Under Cross-examination, Aselai said that more than 8 officers came to arrest him, but Silio was not there. Mosese Volavola, was the only one who punched him as he entered the house. Mosese was punching on his ribs, kicking and stepping on his legs. He injured in his foot and knee when Mosese stepped on his legs wearing a canvas or boots. His head was paining and ears bleeding. He could not recall if Mosese’s name was revealed in his grounds filed on 14 August 2017. He agreed that he did not raise that he was not accorded the rights on his arrest in his grounds. He agreed that the fact that Qase punched him was not mentioned in his grounds, the reason being that he was self-represented. He agreed that he did not question Qase about him being punched because Qase came to give evidence about other accused and he did not know that he had the right to cross-examine Qase. He agreed that he sought permission to cross-examine the investigating officer.
    
63. He agreed that he was taken to the hospital on 28 September 2016. He never gave the statement on history at D10 which the doctor was referring to in his evidence. Only the officer Bimlesh who had taken him to the hospital was conversing with the doctor. The injury on his thigh was not healing, it was still fresh. The doctor was recoding what Bimlesh told him to record. He agreed that he did not challenge doctor’s evidence on D10 (history). The doctor has correctly recorded the third injuries, the welling on the right foot and the blood stain in the ear. He agreed that the medical report does not mention anything about police assaults. He agreed that he did not mention anything about being threatened by the interviewing officer during the interview because the threats happened prior to the interview. He agreed that no one forced him to sign the record of interview because he was already weak. He agreed that that till today Makereta has not lodged a formal complaint against these officers who assaulted despite her being released before the interview.
    
64. He could not remember making a statement admitting the offence after being charged. He just signed a document already typed. On 29 September 2016 when he was produced before the magistrate, his injuries had healed and only his foot was still swollen, and he was limping. He admitted that he never told the Magistrate that he was assaulted by police officers.
    

DW 2 Are Amae (The 3^rd Accused)

65. On 28 September 2016, at around 11 at night, more than ten people surrounded and entered his house in Tamavua-i-wai forcefully. Then they called him outside. When he came out, they told him that they were going to take him to question regarding one case that they thought he was involved in. They had come in two vehicles. They put him inside one of the twin-cabs and took him to the Central Police Station. On the way they were telling that they want to hear him say ‘yes’. This warning continued at the police station and wanted him to say ‘yes’ before reaching Lautoka. Only one of them, the arresting officer gave evidence in Court.
    
66. They took him straight to Central Police Station and put him inside the cell where he slept that night. The next morning after breakfast, they took him to a wooden house at the back beside the cell block. Then they told him to sit on the floor and wanted him to tell what had really happened. He then replied that he didn’t even know why he was being brought there. One of them removed the cuffs and cuffed him behind. Then three of them came and pushed him back and forth. The one who was standing in front kicked him on his chest with his canvas. He was struggling to breath. The other two who were standing beside him started to punch his face. One of them was giving light punches, while the other one was giving hard punches on his left side giving him a black eye. They said they want him to say ‘yes’ to the allegation. After that they gave him food and told him to think about what was going on. They came again and punched until he fell on the ground when one officer stepping on his chest until he became unconscious. He had injuries in his ribs and face, a black eye.
    
67. He saw one of the accused, whose name he later came to know as Maika Tovagone, being brought there and given the same treatment. Maika had witnessed only the first round of assaults. While he was being brought down in the vehicle, they were threatening him to say ‘yes’ to the case and they would release him once he has said ‘yes’. When he was brought to Lautoka at night, the officers at Lautoka told him to be taken to Namaka. Only one officer boarded the vehicle in Lautoka, and it was Simione. The rest of the officers were the same team who took him from Suva.
    
68. When he was taken to Namaka Police Station, he complained to the enquiries officer, who saw his injuries, that he was being assaulted by the officers who had brought him down from Suva. That officer took down notes in the diary. He slept in Namaka and on the following morning (30 September), Simione and the Taskforce team came and took him back to Lautoka.
    
69. Whilst at Lautoka Police Station, they showed him a footage of a robbery on a laptop saying that he had taken part in that robbery. When he said he did not know anything about the robbery, then they said, okay, if you keep saying no, we will keep assaulting you until you say ‘yes’. Then they started slapping him. Simione threatened him. After a while Maika Tovogone was also brought in with another suspect Jone Vunisa.
    
70. He kept denying the allegation. After a while they gave him a statement and told him to sign, so he signed it. When the taskforce team had left, he asked the officers in the station that he be taken to the hospital. They declined and advised him to complain to the magistrate, because they were not responsible for the injuries. When he was produced before the Magistrate that he had injuries. Then the Magistrate ordered him to be taken to the hospital on that same day. The doctor wrote down all the injuries that he had noticed and the reason for those injuries.
    
71. Under cross-examination, he agreed that he relied on the voire dire grounds filed on the 19 May 2017 by the Legal Aid Commission on his instructions. His first ground was that the accused during the period of his arrest on or around the 28 September 2016 at Suva, was assaulted by Police Officer Sulio and the Strike back Team at the Central Police Station. He was not assaulted on the arrest, but they were threatening him on the way to the Station. Amae agreed that he was explained the reason for his arrest.
    
72. The punching and kicking did not cause great number of serious injuries. He had serious injuries and was referred to the x-ray. He told the doctor everything about the injuries, when he was produced on 3 October 2016. He could not recall having relayed to the doctor that he was kicked on the chest multiple times by a police officer and also hit on the skull with a baton over the right eye. He was taken for an x-ray after about 2 weeks. The x-ray report was not given. They had hidden it.
    

DW3 Maika Tovogone (The 5^th Accused)

73. On 29 September 2016, he was at the Totogo Police station having been arrested on the 28^th for the Nakasi and the Lautoka matter. Whilst kept at the cell block after breakfast at around 7.30 after breakfast he saw the suspect Are Amae being escorted by the Task Force Team. After 3 – 4 minutes the same Task Force Team came and released him from the cell for interrogation and took him to one wooden house.
    
74. The officers present in the wooden house were watching the video footage of the Crime scene on a laptop. He was handcuffed at the back and tortured. He could see the same things were being done to Are Amae. Officers were punching and kicking wearing boots. When he started bleeding from his forehead, they stopped assaulting and took him to Nakasi Police Station to be investigated for the other matter.
    
75. He saw Amae again on 29^th or 30^th of September when he was escorted Lautoka. He could see Amae being escorted by the same Taskforce Team that was involved in the assault back in Suva. He saw Amae being interviewed in an open room. Suva Taskforce members were threatening Amae, slapping him in the ear and the head and telling him to admit to the allegations.
    
76. Under cross- examination Maika denied having discussed about the case with Amae although they have been coming to court together from 2016. He admitted that he was charged together as the 2^nd accused in Nakasi case HAC 482 of 16 and that the Voir Dire ruling was delivered on the 7 October 2018. He admitted that the voir dire grounds advanced in that case are different from what he stated in evidence in this case.
    
77. From 2016, he never lodged any formal complaint against the officers who had assaulted him or Amae. 8 or 10 officers were there punching and kicking on Amae’s stomach and ribs. He saw that Amae’s one eye was red when he was brought to Lautoka. He did not mention Are Amae’s name or call him to give evidence for him in his Suva case. He denied that he fabricated evidence and was assisting his good friend in this court giving evidence for Amae.
    

DW 4 Jemesa Vakacegu (The 4^th Accused)

78. On the 27 October 2016, he was drinking at home in Tacirua, when the Police arrived to arrest him. They arrested him and questioning from 27^th to 29^th about a case in Nakasi. He was produced in Suva Court on the 29^th October 2016 for the Nakasi matter and was remanded. He was confronted by Silio and Emori Qilu who told him that they were also going to bring him to this case which he did not know anything about.
    
79. On the 30 October 2016, they brought him down to Lautoka and locked at the Market Police Post. Then they took him to the Station to be questioned in the crime room. When he was being interviewed, Interviewing Officer and the Witnessing Officer were threatening him. The witnessing officer Vimal Pillay strangled his neck causing injuries.
    
80. On the 3 October 2016 he appeared before Court and told the Judge that he was injured in his neck. The Judge ordered for him to be taken to the hospital. After being questioned, he was taken back to Suva.
    
81. Under cross-examination, Jemesa said that he could not recall if he had mentioned in his voir dire grounds about not being informed of the reason for arrest. He did tell the magistrate that the police officers in Lautoka strangled his neck. He could not recall if he made complaints regarding his ribs, wrist only. Witnessing officer used only one hand to strangle his neck very forcefully. (Jemesa tendered his medical report marked as 4DE1). He agreed that there were no nail marks as such, he received scratches. It is noted at D12 that he had abrasion on the neck and tenderness over left eye. At D10 (history as related by the patient) it is noted “account to patient; he was assaulted by Police, he was kicked at the back 3 – 4 times, claimed that they also grabbed him his throat. He was also punched on the left side.” He told the Doctor that he was assaulted by the police officers by then kicking his back 3 – 4 times and punched on the face on the left side. He forgot to mention this during his examination in chief. In his grounds he did not specifically say that the witnessing officer strangled his neck but said that during the interview and charge he was intimidated and pressured to admit the offence by the interviewing officer and the charging officer.
    

DE 5 Emosi Baledrokadroka (The 8^th Accused)

82. On 6 October 2016, when he was standing by the roadside beside his house in Tacirua, Saimoni Qase came with four police officers in civilian clothes in a Task Force vehicle and told him to accompany him to Nakasi Police Station. He was arrested and cuffed, and they took him to Nakasi Police Station. Qase or Ame did not inform the reason of his arrest. They did not allow him to see his wife.
    
83. At the Nakasi Police Station he was questioned about a case in Nakasi by Ame and Saimoni. At around 2 p.m., he was escorted down from Nakasi to Sigatoka by Peceli and three other officers of the Task Force Team. They did not take him to the Sigatoka Police Station but went past it. At Volivoli Village, Lautoka officers came and stopped there. Peceli handed him over to Timoci and the officers (driver Sulio and 3 others) who had come from Lautoka.
    
84. It was at night. As soon as he got in the vehicle, Timoci put something like an empty potato sack on his head. He heard them say that they are taking him to Malevu. But he was not taken to Malevu. Just proceeded a little ahead and turned right to a gravel road. He was told to get off the vehicle. One of them hit his legs twice with a baton and started swearing at him while the sack was still on his head. He could not remove it because his hands were cuffed behind. Then they removed the sack and told him to admit the allegation, if not, what happened to Soko will also be done to him.
    
85. After that Timoci removed his pants forcefully. Sulio and Timoci, wearing hand gloves, rubbed chilies on his private part. It was burning. He could not sit properly. They were threatening to do the same thing they had done to Soko. He just admitted the allegation because he was scared. After that he was put in the vehicle and drove straight down to Lautoka.
    
86. When they arrived at Lautoka, he was escorted by Timoci, to the police station. He spent the night there and on the next morning (on the 7^th October) he was interviewed in an open room with tables. He complained to the interviewing officer that he was still burning and not able to sit properly because of the things the escorting officers had done to him. His interview was done properly, and the questions were being answered until a break was given to call home at Q 46. Marika gave his phone to call his wife in front of them. His sister and her husband picked the call. He told them that the officers were torturing and forcing him to admit the offence. Marika pulled the phone and punched him in his mouth. Marika started swearing at him for complaining to his family. His gum was bleeding. Thereafter he was admitting everything Barbara was asking because he was scared. Whenever he denied, Barbara would call Bimlesh who would come and hit his head saying he was a liar. Bimlesh, Simi and plenty officers were all standing in that area.
    
87. After the interview, he was taken to Namaka. The next day, he was brought back to the crime office in Lautoka for the scene reconstruction and to be charged upon the completion of the interview. Barbara did not go for the reconstruction. He was not taken to the hospital despite his request. Right after the interview, Bimlesh charged him.
    
88. The next day he was produced in the Magistrates Court. He forgot to complain to the Magistrate about his injuries because the Magistrates Court was very crowded with the media team. He had injury on his lips and on knuckles received when he was hit with the baton. He complained to the Judge when the case was transferred to the High Court. An order was made for him to be taken to the Lautoka Hospital where an X-ray was prescribed. The medical report could not be located, and a letter was issued to the DPP’s office to say that X-ray was done in October 2016. This letter was tendered marked as 8DE1.
    
89. Under cross-examination, Baleidrokadroka agreed that he was never taken Malevu Hilltop. He filed his final amended grounds through his Legal Aid Lawyer on his instructions in which he alleged that he was taken to Malevu Hilltop. But he did not advise his lawyer that he was taken to Malevu Hilltop. Police officers were telling him that he would be taken to Malevu Hilltop, but they did not take him there. He did not see a baton, but he felt something steel hitting him. The chilies were rubbed only on his anus not on his butt. Burning sensation of chilies, displaced bone on his knuckles. It was painful and swollen until he was produced in High Court on 14 October 2016. The cut, the swelling on the lips and pain were also present. He agreed that he was first produced before the Magistrate’s Court on 11 October 2016 with Joeli Nukunawa and then on 13 October 2016, but no complaint was made to the Magistrate. He agreed that in his complaint he did not complain about police torture, but it was only a request for a medical. He admitted that according to the letter issued by the Lautoka Hospital, he was never admitted nor seen at the hospital but just had an x-rayed in October 2016. Even before Q 46 he was threatened by Marika, but he forgot to tell that in EIC. He was not provided lunch during the break. In his grounds, he only complained about meals were inconsistent.

DW 6 Kamanieli Turagaloaloa

90. Sometime in October 2016, when he was home with his wife, they received a call on his cousin’s phone from Emosi. Emosi informed that whilst being interviewed he is being assaulted forcing him to admit to the offence. Suddenly the phone went off. On the next day he come down to Emosi at the cell block. He saw a cut on his lip which was swollen, and he was limping.
    
91. Under cross examination, Kamanieli said he is currently serving, at the medium correction center in a robbery case. He denied that he came to give evidence to save his brother-in-law.
    

DW 7 - Isaac James (2^nd Accused)

92. In October 2016, while he was at home he was informed by his parents that Police were looking for him for a Nakasi robbery case. The family had a talk and he agreed to surrender himself. They called the police to come and arrest him.
    
93. On 25 October 2016 a police team came in six vehicles and pushed the door, and entered the house forcefully. They thought he was going to escape. Qase spoke with his family and called the Commissioner of Fiji Police Force over the phone. He was informed that his name is mentioned in a Lautoka case as a suspect. Commissioner Qiliho spoke to him and assured his family that nothing will happen to him.
    
94. Family members asked Qase if his uncle Mark Blac could also accompany him to the Station. They took him to Totogo Police Station with his uncle. When his uncle left, they started punching on his face and the ribs, kicked him, handcuffed and threw and locked him in the cell. He knew only officer Ami.
    
95. On the next morning, (26 October 2016) Qase, Sailasa and other officers took him down to Lautoka in a twin cab. When he reached Lautoka, Qase and another officer started hitting him with a baton on his head but he received no serious injuries.
    
96. When he got off, Simione, his interviewing officer, approached him and made him sit in the charge room. Four other officers came in and started to threaten him with assaults if he denied the allegation. When he denied the allegation, Bimlesh showed him a footage on a laptop and said that other suspects who were already in custody had named him. Still he did not admit the allegation. He was then forced to sign the prepared statement. He was never interviewed in Lautoka. Simione was merely putting some questions but it was not an interview. Bimlesh then asked the Nakasi officers to take him back to Nakasi. On their way Silio started to threaten choke his throat.
    
97. When he was taken to the Lautoka Magistrate Court on 28 October 2016, he complained to the Magistrate that he was assaulted and requested for a medical examination. He was taken to the hospital on the same day and an x ray was done. The police officers have hidden the medical reports.
    
98. Under cross-examination, Isaac James did not agree that the police had no need to assault him because he and his family were already cooperating with the police. He denied that he could not produce a medical report because he was not assaulted or injured. He admitted that the signature on the record of interview is his and the personal / family information therein belongs to him. He could not remember being charged by one Jone Sauqaqa. In his grounds he stated his name and that the charge statement was obtained unfairly, under duress and oppression and forcefully. He agreed that he read the charge statement when he prepared his grounds and there’s nothing incriminating him in his charge statement. He did not come to participate in the voir dire proceeding at the beginning because he had forgotten the date.
    

Evaluation /Analysis

The voir dire grounds raised by Aselai Waqanaivalu (the 1^st Accused)

99. The 1^st ground raised by Aselai is that he was arrested at Mulomulo (Nadi) at his girlfriend’s residence. There is no dispute that the 1^st Accused was arrested on 27 September 2016 when he was with his girlfriend somewhere in Nadi. The arresting officer ASP Silio Finau referred to the place of arrest as Kajiqari, Nadi whereas Aselai referred to it as Mulomulo (Nadi). Aselai is not from that area. He did not dispute that the name of that village is Kajiqari in Nadi.
    
100. The second ground was raised by Aselai on the basis that during his arrest he was badly assaulted by the arresting officers. ASP Silio Finau (PW8) who led the arresting team testified that Aselai offered no resistance and therefore he was not cuffed, assaulted, threatened or put pressure on him during the arrest or the transportation. Reason for his arrest and his rights were explained. Aselai admitted that he did not raise any ground on the basis that he was not afforded his rights at the arrest. The Aselai appears to have known the name of the officer who had assaulted him at the arrest to be Mosese. However, in his grounds, he had not named Mosese as the assailant.
     
101. Other grounds have been raised by the 1^st Accused on the basis that he was punched in his head while being at the police station. ASP Finau confirmed having seen some injuries at the time of the arrest on Aselai in his right ear and the right knee and having received a complain of those injuries. None of the police witnesses who had come in to contact with Aselai thereafter did not deny that he had those injuries. The interviewer DC Colati had seen Aselai limping, and the injuries on his leg, dried up blood on his ear. Upon being inquired, Aselai had informed of being assaulted by a group of people who were drinking with him before the arrest. In his answers to Q 14-17 of the interview, Aselai had said that empty beer bottles, timber and stones were used to cause those injuries. Therefore, there is evidence that Aselai had injuries even before his arrest and being interviewed. The question then is whether those injuries were inflicted by the police officers as claimed by Aselai and whether it was unfair for him to be interviewed if he had those injuries.
     
102. Aselai said that the arresting officer had punched him in his ribs, kicked and stepped on his legs with boots causing injuries to his foot and knee. Had he been assaulted to that extent; he would have received far more serious injuries. However, none of them were fresh or serious injuries. He has agreed to be interviewed straightaway without any complaint because he was comfortable.
     
103. The doctor, who examined Aselai on 28 September 2016, soon after the interview, had noted a long linear healing contusion with a scab on the right thigh, a secondary scab on the right knee, a soft tissue swelling on top of the right foot and a blood stain in the right ear canal. All those injuries, according to the doctor, were more than three days old. The contusion was already showing signs of healing. The scab confirmed that this wound had gone to the secondary phase where healing was well underway.
     
104. Aselai narrated to the doctor the same history that he had given to the interviewing officer as to how he sustained those injuries on 24 September 2016 at Taciruva. It was never put to the doctor by Aselai that the history was not provided by him. Aselai agreed that he did not challenge the doctor’s evidence on D10 (history). The doctor confirmed that the history was provided by the patient himself and, according to his recollection, no police officer was present during the examination advising him on the history.
     
105. The doctor’s findings correlate well with the history provided by the patient of being struck by stones, wood, and beer bottles on the 24^th, before the arrest. The long linear healing contusion with a scab on the right thigh is consistent with him being cut by a beer bottle. If Aselai had received those injuries after his arrest on the 27^th or 28^th, the doctor should have noted fresh injuries at the medical examination on the evening of the 28^th. Aselai said that the punches by the arresting officer landed on the ribs. However, no injuries or swelling had been observed by the doctor.
     
106. Aselai agreed that the medical report does not mention anything about police assaults. He agreed that the doctor had correctly recorded all the injuries in his report. The doctor is an independent witness. I have no reason to reject the doctor’s evidence and what he has written about history at D-10 in his report.
     
107. The explanation of Aselai as to how he got a blood stain in the right ear canal was that he was punched by Saimoni Qase. He said that Qase came and pushed his head and slapped his ears in front of his girlfriend. However, he failed to put his position to Qase when he took the stand. His explanation for this failure was that Qase was not called in respect of his case. He further alleged that he was not allowed to cross-examine. I am unable to accept his explanation. He invoked his right to cross-examine police witnesses even when they were not called strictly in respect of his case. A good example is his cross-examination of IO Naicker although he was not called to testify to his case.
     
108. If Qase punched him in front of his girlfriend, Makereta, she could have made a complaint to a higher authority as she had been released before the interview. Aselai agreed that to date Makereta has not lodged any formal complaint against the officers. Makereta did not adduce evidence to support his allegation despite her being given ample time and opportunity. Aselai admitted that he did not complain to the Magistrate that he was assaulted by police officers when he was produced before the Magistrate on 29 September 2016. He was given 20-25 minutes to contact his Legal Aid Counsel over the phone during his interview, but there was no complaint of assault or intimidation. He agreed that he did not mention anything about being threatened by the interviewing officer during the interview and being forced to sign the record of the interview.
     
109. Inspector Ranadi (PW 7) charged the Aseslai where he made a statement at question 10 and signed the statement. Ranadi confirmed that no officer assaulted or put pressure on Aselai and that all his rights were given. Aselai has never lodged any formal complaint for assaulting, threatening or putting pressure on him. DC Ananai the witnessing officer confirmed Ranadi’s evidence. I have no reason to reject this evidence.
     
110. Having considered all the evidence, I accept that the 1^st Accused had received the injuries before he was arrested on 27^th September 2016 and not as police brutality as alleged by the 1^st Accused. I accept the evidence of the police witnesses that the 1^st Accused was afforded his rights and that he gave the answers in the interview and made the statement of the charge voluntarily.
     

The grounds raised by the 2^nd Accused (Isaac James)

111. Sailasa Koroitoga (PW4), Constable Simione Yabia (PW5), Inspector Ranadi (PW7) and Ex-SP Simione Qase presented evidence in respect of Isaac James’s arrest, transport and interview. Isaac James (James) failed to come to Court and challenge Prosecution evidence when he knew that his case was fixed for voir dire hearing and trial. The Court accepted the warrant officer’s affidavit evidence that James had escaped from lawful custody and also took judicial notice, based on the Court Record, of James’s knowledge of the hearing date in deciding to fix the matter for hearing in absentia. When James was arrested on a warrant and produced before the Court after the close of the Prosecution case, the transcripts of evidence against him were made available and he was given his right to present his evidence to ensure a fair hearing.
     
112. James in his voir dire grounds had not complained of his arrest and transport that took place on 26 October 2016. Sailasa (PW 4) arrested James by a team led by Saimone Qase when James was still on the run. Both Sailasa and Qase testified that James was arrested when his family informed his desire to surrender himself to the police. Sailasa denied that James was handcuffed at the back after his arrest and that he was assaulted at Totogo Police Station by the Task Force Team.
     
113. James admitted that he surrendered himself and cooperated with police officers. James said that he was assaulted by being punched in his face and the ribs and kicked by Officer Ami and other officers at the Totogo Police Station and, during transport, by Qase and another officer. However, on his grounds, he has never raised that he was assaulted during transport by Qase and another. If his head was hit with a baton he would have received serious injuries. He admitted that he had no serious injuries when he reached Lautoka.
     
114. James said in evidence that he was never interviewed and that Simione was merely asking some questions. However, he has filed his grounds on the basis that he was interviewed that the interview was unfair and that the admissions were recorded by using police brutality. The answers containing his personal /family information and his signature suggest that he has been interviewed and the answers contained therein were given by him.
     
115. James said four officers came and threatened him with assaults if he denied the allegation. When he denied the allegation, Bimlesh showed him footage on a laptop and still, he did not admit the allegation. He said he was then forced to sign a prepared statement. However, his grounds are inconsistent with his evidence. If he had denied the allegation at the interview, there was no need for him to file grounds of voir dire. He could have challenged the so-called admissions at the trial proper on the basis that those admissions were police fabrications.
     
116. Constable Simione (PW5), the interviewing officer had seen no injuries on James before or during the interview; He said James was fit and healthy; and that he received no complaint or request for a medical examination; no one else had been present at the interview except the witnessing officer and the accused. He denied that before or during the interview James was assaulted, threatened or put pressure on him. The witnessing officer confirmed Simione’s evidence. The police evidence was not challenged.
     
117. James had never lodged a formal complaint against any officer for assaulting, threatening or putting pressure on him. When he was produced in the Lautoka Magistrate Court on 28 October 2016, he had not complained to the Magistrate that he was assaulted or intimidated by police officers, although a request for a medical examination had been made. If he were medically examined and an x-ray was done at the hospital, he should be able to produce the reports. I am unable to accept his claim that police officers have hidden his medical reports. The medical reports of his co-accused Are Amae, and Jemesa Vakacegu were tendered from their custody. He too could have obtained a Court order to have his reports tendered in Court if a medical was done at a hospital.
     
118. ASP Sillio Finau (PW8) denied the allegation that he had made James sit on a chair, pulled his tongue and started choking. James had never lodged any complaint against Silio thus far. I accept the submission of the State that the police had no reason to assault James because he and his family had been cooperating with the police. According to James, ASP Qase had given an assurance to the Commissioner of Police that nothing would be done to James whilst in police custody. In that context, it is hard to believe that junior officers under Qase have resorted to practising torture on a suspect, violating the said assurance given to his chief.
     
119. James had mounted grounds challenging the admissibility of the charge statement on the basis that the statement and his signature were obtained unfairly, under duress and oppression and forcefully. In his evidence, James said he could not remember being charged by one Jone Sauqaqa at all. He agreed that he read the charge statement when he prepared his grounds. However, nothing is incriminating him in his charge statement. That shows he had the freedom to refrain from making any statement to the police. The 2^nd Accused without any reasonable basis has challenged the admissibility of the caution interview. I accept the Prosecution's evidence that the caution interview was conducted fairly without violating his constitutional rights and that he made admissions voluntarily.
     

The grounds filed by Are Amae (The 3^rd Accused)

120. PC Peceli (PW13) was a member of the arresting team who arrested Amae on 28 September 2016. He had not seen any injuries on Amae prior to his arrest. They had taken Amae to the Totogo Police Station and kept him there until he was escorted to Lautoka the next day. Sailasa (PW4) is the one who had escorted Amae from Suva to Lautoka with two other officers. According to Sialasa, Amae was in good health, and he had not seen any injuries on Amae’s body.
     
121. Amae said that he was taken to a wooden house at the Totogo Police Station where he was assaulted by three officers after being cuffed at the back in the presence of his co-accused Maika; one of them kicked his chest while he was struggling to breath and the other two officers punching in his face; one officer had punched on his left side giving him a black eye; after giving him food, they came again and punched until he fell on the ground; then one officer had stepped on his chest until he became unconscious. He had injuries in his ribs and face and had a black eye.
     
122. Amae said that he was taken to Namaka Police Station where he complained to the enquiries officer, who, having seen his injuries, put a note in the station diary; on the following morning (30 September), he was taken back to Lautoka for the interview; having shown a CCTV footage, the officers slapped; Simione threatened him to admit the offence; when he kept denying, they gave him a statement and told him to sign, so he signed out of fear; when the taskforce team left, he asked the officers in the station that he be taken to the hospital; they declined and advised him to complain to the magistrate, because they were not responsible for the injuries; when he was produced before the Magistrate on 3 October 2016, the Magistrate ordered him to be taken to the hospital; the doctor wrote down all the injuries that he had noticed and the reason for those injuries.
     
123. According to the police witnesses, Amae was never been assaulted or threatened either at the Totogo police Station or at the Lautoka Police Station and they had never seen any injuries on Amae. Amae had not requested a medical examination. However, the Record of the Magistrates Court shows that when Amae was produced before the Magistrate on 3 October 2016, he has complained to the Magistrate of his injuries on his ribs and face whereby the Magistrate had ordered him to be escorted for a medical examination. Amae had been examined at the Lautoka Hospital on same day (3 October 2016). In the medical report (DE1) tendered by Amae, the doctor observed at D (12) ‘an abrasion over the right eye 2-5 days old tender on palpation, tenderness over left chest wall internally, palpation shows tenderness, patient has difficulty in breathing, ribs don’t appear fractured on palpation’. At D (10) (History), Amae had complained to the doctor that ‘he was kicked on the chest multiple times by a police officer. He was also hit on the skull with a baton over the right eye. At D (14) (Professional Opinion), the doctor has noted- Injuries appear consistent with blunt force trauma specially on chest and above the eye. Injury approximately 5-7 old -bruising on chest wall.
     
124. If Amae had no injures at the time of his arrest on the 28^th of September and during the transport, then how those injuries came into being when he was produced for a medical on the 3^rd of October? Those injuries are consistent with the evidence of Amae. I concede that Amae was assaulted so badly, he would have sustained more serious injuries. It may be that Amae exaggerated things to bolster up his case. However, the fact remains that he had injures 2-5 days old. The only inference that this Court can draw from the Magistrate’s Court record and the medical report is that Amae sustained those injuries whilst he was in police custody. I reject the evidence of the police witnesses that Amae was never threatened or assaulted by the police officers before the interview and the charge. The Prosecution has failed to prove beyond reasonable doubt that the caution statement and charge statement dated 1 October 2016 were made by the 3^rd Accused voluntarily.
     
125. If the Namaka Station Diary were disclosed as per Amae’s request, the truth about Amae’s claim that his injuries were noted down in it by the enquiries officer could have been revealed. I accept that the non-disclosure of the Namaka Station Diary has some prejudicial effect on the 3^rd Accused as far as his voir dire grounds are concerned. However, a fair trial is still possible for him in view of the finding that I have made in this Ruling. Therefore, the permanent stay application filed by the 3^rd Accused should be dismissed.
     

The grounds filed by Jemesa Vakacegu (The 4^th Accused)

126. Sgt. Isikeli Rokodreu (PW18) was the arresting officer of Jemesa. There are two inconsistent versions as to Jemesa’s date of arrest. In his original grounds, he states that he was arrested on 29 September 2016, whereas in his grounds filed on 06 August 2020, he states that he was arrested on 27 August 2016. In his evidence also, Jemesa said that he was arrested on 27 September 2016 and produced in Suva MC for the Nakasi matter. However, there is no supporting evidence to show that Jemesa was arrested on 27^th. It appears that this amendment has been orchestrated by Jemesa to support his additional ground that, before the interview, he was oppressed by keeping him in police custody for more than 48 hours in violation of the Constitution. There is no evidence that the 48-detention period had exceeded. Even if it did, the question is whether the suspect would be prejudiced in his trial by the alleged right violation. I accept that Jemesa would have faced a difficult and stressful situation when he was arrested and interviewed for two different offences simultaneously in two different jurisdictions involving great deal of travel.
     
127. I now turn to the issue of whether Jemesa was intimidated and assaulted at the Totoga Police Station during the interview. Prior to and during the interview, there were no assaults, threats, force or intimidation no injuries and that they had received no complaints from Jemesa. While he was being interviewed, the interviewing officer and the witnessing officer threatened him and that the witnessing officer strangled his neck causing injuries.
     
128. After the interview and the charge, Jemesa had been produced before the Magistrates Court at Lautoka on 3 October 2016. The 4DE1) at D (12) that the patient had abrasion on the neck and tenderness over the left eye. At D (10) (history) the doctor noted “...he was assaulted by Police, he was kicked at the back 3 – 4 times, claimed that they also grabbed him his throat. He was also punched on the left side.”
     
129. I concede that as per the Court Record, Jemesa had not told the Magistrate in detail that the police officers had assaulted and strangled his neck. However, he had complained about injuries in his ribs and wrist. The State Counsel argues that the abrasions shown in the medical report could probably occur even while scratching. However, once a suspect has been medically examined after a court order and some injuries are noted in the medical report that are consistent with the grounds raised by the Defence, it is the responsibility of the Prosecution to disclose the medical report and prove that the injuries were not resulted from police brutality. There is no burden on the Defence to prove that the confessions were not voluntary.
     
130. I observe with amazement that at least two medical reports have been suppressed by the State. The medical reports pertaining to Are Amae and Jemesa Vakacegu were tendered by the accused themselves when they should have been disclosed by Prosecution as it did in the case of Aselai Waqanivalu, whose medical report tuned out be favourable to the Prosecution. It is reasonable to assume that some medial reports were supressed because they were not favourable to the Prosecution.
     
131. The Prosecution failed to prove beyond reasonable doubt that the confessionary statements of the 4^th Accused were made voluntarily.
     

The voir dire grounds filed by Tomasi Qaniuci (The 6^th Accused)

132. Inspector Bimlesh Naicker (PW15), who is the investigating officer, said that he was not present during the interview of Tomasi Qaniuci. His only role was to compile the record of interview in his capacity as the investigating officer. He said that DC Apenisa, the officer who conducted the interview of Tomasi Qaniuci and DC Samuela, who was the witnessing officer at Tomasi’s interview are both dead and gone. In view of the grounds raised by the 6^th Accused on the admissibility of the caution interview, it is for the Prosecution to prove beyond reasonable doubt that the caution interview was conducted fairly and that the confessions were made voluntarily. Prosecution failed to discharge that burden. Therefore, the caution statement of the 6^th Accused should be excluded at the trial proper.
     

The voir dire grounds filed by Emosi Baleidrokadroka (The 8^th Accused)

133. Emosi has filed two sets of grounds for voir dire. The first one was filed by him in person on 19 May 2017 and the second one through his Counsel on 05 February 2020. Before the hearing, his Counsel informed that Emosi is relying on the grounds filed by his counsel.
     
134. Basically, Emosi in those grounds alleges that he was not afforded his rights during the arrest and that he was tortured and intimidated in transit from Suva to Lautoka and at the Lautoka Police Station during his caution interview.
     
135. ASP Saimoni Qase (PW19) has led the team that arrested Emosi on 5 October 2016 from his residence in Tacirua. According to Qase, Emosi’s family had assured that Emosi is willing to surrender himself to police. Then his team had gone to Emosi’s house, arrested and taken him to the Central Police Station. He said that the reason of arrest was informed and that he was cautioned upon his arrest.
     
136. Emosi’s version is quite contrasting. According to him, he was asked to board the police vehicle while he was standing on the road. In the grounds filed on 19 May 2017, Emosi has admitted that he voluntarily brought himself to the Nakasi Police Post with the knowledge that the police were looking for him. Having considered this inconsistency, I prefer to accept the version of Qase that Emosi surrendered himself to police and his rights were not breached at the arrest.
     
137. PC Peceli (PW13) and his team had escorted Emosi to the West. The instruction he got was to escort Emosi to Sigatoka. However, when they reached Sigatoka, Timoci who had come with the Lautoka team had told them to escort Emosi down to Lautoka because their vehicle was full. He denied that Emosi was transferred to another vehicle and assaulted or threatened during transport.
     
138. The version of the Defence is that Emosi was transferred to the vehicle that had come from Lautoka along the road towards Volivoli village and taken to a gravel road where he was tortured by assaulting and rubbing pounded chilies on his anus. The version of Defence is inconsistent. In the grounds filed on 19 May 2017 Emosi has never alleged that he was transferred to another vehicle and tortured at Malevu Hilltop during his transfer to Lautoka. In his evidence Emosi admitted that he was never taken to Malevu Hilltop, although in his grounds he stated he was. He first said he was hit with a baton on his legs. Then he said he felt his knuckles being hit with something steel. In view of these inconsistencies, I find no credible evidence that Emosi was tortured during his transport.
     
139. Corporal Barbara (PW20) interviewed Emosi in the presence of DC Marika. According to Barbara, Emosi was given a break to contact his wife Sera Ame over the phone as reflected at Q 46. She said that in her presence, Emosi was not assaulted, threatened or intimidated by any police officer and that no scratch marks or injuries were seen on his body. She also did not receive any complaint or a request for a medical from Emosi at any time during the interview.
     
140. Emosi admitted that his interview was done properly until a break was given to call home at 1300 Hrs. (Q 46) and that he started to admit the offence after he was punched by the witnessing officer. Marika during the break overheard the complaint he was making to his sister and her husband over the phone and punched him. He further said Bimlesh also came and punched him.
     
141. It would appear on the record of interview that Emosi had started to make admissions at Q 42 and Q43 even before the break at Q 46. There was nothing to complain to his family if the interview was done properly until the break. Emosi then changed his evidence and said that he was intimidated even before the break. In the grounds filed on 19 May 2017, Emosi had stated that during the break he called his wife, Sera Ane, and complained to her that he was being tortured for the police to obtain a confession. In his grounds Emosi has never stated that Bimlesh also punched him.
     
142. Emosi took a different stance in his evidence and said that his call was picked by his sister and brother-in-law and that the complaint was made to them. To support his claim, he even called his brother-in-law, Kamanieli (DW 6). Kamanieli had come to give evidence from the prison while serving a prison term. He had not complained to anybody when he learnt that Emosi was being tortured to obtain a confession and seen a cut on Emosi’s upper lip. I accept that he gave evidence to save his brother-in-law.
     
143. Emosi complained that he was not taken to the hospital despite his request to Barbara. After the interview and the charge, he had been produced before two magistrates respectively on 11^th and 13^th of October 2016. He admitted that he did not complain to either magistrate. His explanation was that he forgot to complain because the Magistrates Court was very crowded with the media team. That explanation is implausible. Being in pain having received injuries on his lip and on knuckles, Emosi was expected to make a complaint at least to one of the Magistrates. He had finally requested a medical examination when the case was transferred to the High Court on 14 October 2016. No medical report is produced. The letter issued by MS Lautoka Hospital on the request of the ODPP (8DE1), confirms that Emosi was not admitted or seen by a doctor at the Lautoka Hospital in the month of October 2016 although he had obtained an X-ray. The Court can’t speculate why an X-ray was obtained and on which day in October 2016 it was obtained.
     
144. Although Emosi claims that he was not provided with lunch during the break given at 13 Hrs, he has signed the record to acknowledge that he was provided with boiled fish and cassava. It can be assumed that 1 ½ long break was given at 13Hrs for him to take lunch. In his grounds, Emosi has not complained that he was not provided meals.
     
145. No reasonable doubt is created on the version of events of the Prosecution case in respect of arrest, transport or the interview for me to find that the 8^th Accused made the confessionary statements to police involuntarily. I accept the evidence of the Prosecution and find that the 8^th Accused was afforded his rights and that he made the confessionary statements voluntarily in an interview that was conducted fairly.
     
146. Emosi filed a permanent stay application before the voir dire hearing, advancing some vague grounds. As far as I could gather from his hand written stay application and his evidence at the voir dire hearing, he is complaining of the inadequacy of disclosures, specifically the station diaries maintained at Sigatoka, Lautoka and Namka Police Stations. His Counsel elicited from Emosi as to why he needed those station diaries for his Defence.
     
147. In his evidence Emosi concedes that he was not taken to Sigatoka Police station on his way down to Lautoka. Therefore, he cannot expect any entry concerning him being entered in the station diary kept at Sigatoka Police Station. ASP Silio Finau said that the exchanges of suspects happen at a police station and not on highways.
     
148. Emosi’s request for Lautoka station diary is said to show that officers Marika, Silio, Timoci and another officer had left Lautoka Police Station to pick him from Sigatoka. There is no dispute that a team of Lautoka officers went to pick Emosi at Sigatoka. PC Peceli (PW-13) confirmed that on 6 October 2016 his team escorted Emosi to Sigatoka where he met the vehicle that had come from Lautoka with Constable Timoci and that his team was told to escort Emosi right down to Lautoka because the Lautoka vehicle was full. The station diary of Lautoka will only show that the Lautoka team had left the station to escort Emosi and it will not help to substantiate Emosi’s claim that he was tortured at Sigatoka.
     
149. Emosi’s request for Namaka station diary is to show that that a conversation regarding his injuries had taken place with a lady officer at the Namaka Police Station. Emosi did not say that an entry was made in the Namaka station diary regarding the said conversation. When he was produced in the Magistrates Court the next day, he had not complained to the Magistrate before whom he was produced and neither had he requested a medical examination. Therefore, no prejudice will be caused to 8^th Accused and his right to a fair trial will not be affected. For these reasons the permeant stay application filed by the 8^th Accused should be dismissed.
     
150. The following Orders are made:
     

(i). The caution statement and the charge statement of the 1^st Accused Aselai Waqanivalu are held admissible at the trial proper.

(ii). The caution statement of the 2^nd Accused Isaac James is held admissible at the trial proper.

(iii). The caution statement and the charge statement of the 3^rd Accused Are Amae are held inadmissible at the trial proper.

(iv) The caution statement and the charge statement of the 4^th Accused Jemesa Vakacegu are held inadmissible at the trial proper

(v). The caution statement of the 6^th Accused Tomasi Qaniuci is held inadmissible at the trial proper.

(vi). The caution statement and the charge statement of the 8^th Accused Emosi Baleidrokadroka are held admissible at the trial proper

Aruna Aluthge
Judge

26 April 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecutions for State
Legal Aid Commission for Defence