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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]
MISCELLANEOUS CASE NO: HAM 25 of 2025
STATE
V
REVONI YALAYALA
Counsel : Ms. Sheenal Swastika for the State
Respondent Appeared in Person
Hearing : 27 March 2025
Ruling : 17 April 2025
RULING
Introduction
[1] This is an application made by the State pursuant to Section 11 (3) of the Constitution of the Republic of Fiji 2013 (“Constitution”), seeking an order of Court to obtain the bodily sample of the Respondent, Revoni Yalayala, in Lautoka High Court Criminal Case No. HAC 19 of 2024, for the purpose of DNA analysis.
[2] The Respondent is the accused in Lautoka High Court Criminal Case No. HAC 19 of 2024. As per the Information filed by the Director of Public Prosecutions (“DPP”) in the substantive matter, on 3 April 2024, the Respondent is charged with one count of Murder of Donald Sharwan Prasad, contrary to Section 237 of the Crimes Act No. 44 of 2009 (“Crimes Act”) and one count of Aggravated Robbery of Donald Sharwan Prasad, contrary to Section 311 (1) (a) (b) of the Crimes Act.
[3] On 8 April 2024, the Respondent took his plea to the Information, and pleaded not guilty to the two charges against him.
The Notice of Motion and Affidavit in Support
[4] This application was filed in Court on 13 February 2025, by way of a Notice of Motion, which was supported by the Affidavit of Detective Constable (DC) 6676 Joape, Police Officer, based at the Digital Forensic Unit, Lautoka Police Station. DC Joape, who has been serving in the Fiji Police Force for the past 10 years, is the Investigating Officer in the substantive matter.
[5] In his Affidavit, DC Joape inter alia states as follows:
(1) That in the afternoon of 2 December 2023, the deceased Donald Sharwan Prasad was found dead in Qalitu Settlement, Lautoka. The deceased was found lying in a grass area and his face and head had been bludgeoned. The Pathologist established that he died of severe intracranial haemorrhage as a result of severe traumatic head injury.
(2) It is alleged that the Respondent had murdered the deceased on 1 December 2023 at Lautoka and it is also alleged that the Respondent robbed the deceased of one Samsung A23 Mobile Phone and one white 1.5 litre Hybrid Taxi.
(3) The Respondent is now charged with one count of Murder, contrary to Section 237 of the Crimes Act and one count of Aggravated Robbery, contrary to Section 311 (1) (a) (b) of the Crimes Act. The Information was filed in the High Court on 3 April 2024.
(4) In this case there is no direct evidence of what actually occurred that led to the death of the deceased. The State’s case against the Respondent is entirely based on circumstantial evidence. In relation to the Aggravated Robbery charge, the State has CCTV footages showing the Respondent exiting the stolen taxi from the driver’s seat.
(5) During the course of investigations the Police recovered CCTV footage from Nazra Bibi Investments in Ba. The footage shows the Respondent being the passenger of the said stolen taxi and the deceased being the driver at the time. Upon receiving this CCTV footage from Nazra Bibi Investments, DC Joape had prepared a Digital Extraction Report dated 6 December 2023. This Report shows the Respondent getting out of the said stolen taxi from the passenger side to the shop and later boarding the same taxi. A copy of the said Report has been annexed to the Affidavit as PE 7.
(6) Furthermore, the Police also recovered CCTV footage from Popular Furniture Limited. Upon receipt of the said CCTV footage, DC Joape had prepared a Digital Extraction Report dated 11 December 2023. This Report shows the Respondent abandoning the said stolen taxi and walking away. A copy of the said Report has been annexed to the Affidavit as PE 9.
(7) Police statements of several prosecution witnesses have also been annexed to the Affidavit of DC Joape from PE1 to PE6 and PE8.
(8) The Officer deposes that as per the investigations carried out by the CID team and Forensics, it has been established that the deceased was last seen alive with the Respondent.
(9) During the investigations in this case, swabs were taken at the crime scene from the deceased’s body and from the deceased’s stolen taxi, by Police Sergeant 3049 Josateki Seuseu. A copy of the evidence recovery log is exhibited as PE10. These swabs were taken for the purposes of DNA samples and DNA analysis and have been forwarded to the Fiji Police Forensic Biology and DNA Laboratory in Suva for analysis.
(10) Since there was strong circumstantial evidence against the Respondent, he was requested to provide his buccal swab for the purposes of DNA testing. This was due to the strong suspicion that the swabs obtained from the body of the deceased contains DNA belonging to the Respondent. The purpose of obtaining the buccal swab of the Respondent was to match his DNA with the DNA samples that was collected during the course of the investigations.
(11) The Respondent was duly explained as to the reasons why his buccal swab was needed and its purpose. The Respondent was also explained that his informed consent is needed for obtaining his buccal swab.
(12) However, the Respondent refused to provide his informed consent for the Police to obtain his buccal sample for the purpose of DNA sampling and analysis.
(13) The DNA sample of the Respondent is necessary to thoroughly investigate the case against him for the alleged murder of the deceased. The obtaining of the buccal sample and the DNA analysis is in the interests of justice.
(14) The obtaining of the buccal sample for the purpose of DNA analysis does not mean that the Respondent is confessing to the alleged murder. The result of the DNA testing may also assist the Respondent in his defence of the charges against him.
(15) Accordingly, considering the circumstantial nature of this case, it is in the interests of justice that this Court grants an order for the Respondent to provide his buccal sample for the purpose of DNA analysis.
The Affidavit in Reply filed by the Respondent
[6] An Affidavit in Reply was filed by the Respondent on 6 March 2025. Therein, the Respondent inter-alia deposes as follows:
(1) That currently he is a serving inmate at the Naboro Maximum Prison.
(2) That he is strongly objecting to the application made by the State for obtaining of his buccal swab for the purpose of DNA analysis.
(3) That the prosecution had informed Court that the investigations in the matter had been completed and that they were ready to proceed for hearing.
(4) The Respondent denies that the State has strong circumstantial evidence to establish the charges against him. He submits that the State is misleading Court with regard to this information.
(5) That he exercises his rights to refuse to provide his bodily sample for the purpose of DNA testing under the Constitution of Fiji.
(6) Furthermore, he has already been charged for the alleged offence and the State ought to have obtained evidence before charging him rather than charging him and now looking for further evidence.
(7) That there is a danger and real risk to give his swab, especially at this stage of the proceedings. He is not consenting to give his swab at this stage as he fears fabrication by the Police.
The Hearing
[7] The instant application was taken up for hearing before me on 27 March 2025. During the hearing both Counsel for the State and the Respondent (in Person) were heard.
Legal Provisions
[8] It must be mentioned that this Court has previously made a Ruling in State v. (Ajay) Kumar [2022] FJHC 652; HAM 65.2022 (17 October 2022); permitting a similar application made by the State for obtaining of the buccal sample of an accused person for the purpose of DNA analysis.
[9] As highlighted in State v. Kumar (supra) at the very outset it must be stated that there is no enabling provision in terms of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act) or in any other specific legislation dealing with criminal procedure, providing for an application to be made by the State for the obtaining of any bodily sample of a person for the purpose of DNA analysis.
[10] In comparison, the Family Law Act No 18 of 2003 (“Family Law Act”) has detailed provisions regarding Parentage Testing (From Sections 137 to 145). Section 138 provides that the Family Court may make orders for carrying out of parentage testing procedures on its own initiative or on the application of a party to the proceedings or a person representing a child.
[11] In terms of Section 139 of the Family Law Act, the orders Court can make include, but are not limited to:
(a) an order requiring a person to submit to a medical procedure;
(b) an order requiring a person to provide a bodily sample;
(c) an order requiring a person to provide information relevant to the person's medical or family history.
[12] However, the above provisions are only confined to family law matters.
[13] In many other jurisdictions enabling provisions would be found in the legislation dealing with criminal procedure for similar applications to be made to Court.
[14] For example, in Sri Lanka, specific provisions are found in the law enabling the taking of finger, palm or foot impression or impression of any part of the body of any person suspected of an offence under investigation or any specimen of blood, saliva, urine, hair or finger nail or any scraping from a finger nail of such person to be taken. This is provided for in terms of Section 123 of the Code of Criminal Procedure Act No 15 of 1979. The Section is re-produced below:
“(1) Where any officer in charge of a police station is of opinion that it is necessary to do so for the purpose of an investigation, he may cause any finger, palm or foot impression or impression of any part of the body of any person suspected of the offence under investigation or any specimen of blood, saliva, urine, hair or finger nail or any scraping from a finger nail of such person to be taken with his consent.
(2) Where the person referred to in subsection (1) does not consent to such impression, specimen or scraping being taken, such police officer may apply to the Magistrate's Court within whose jurisdiction the investigation is being made for an order authorizing a police officer to take such impression, specimen or scraping and such person shall comply with such order.
(3) Any officer in charge of a police station may, where it is necessary for the purpose of the investigation to compare any handwriting, cause a specimen of the handwriting of any person to be taken with his consent.
(4) Where such person refuses to give a specimen of his handwriting the officer in charge of the police station may apply to the Magistrate's Court within whose jurisdiction the investigation is being made for an order requiring such person to give a specimen of his handwriting, and such person shall comply with such order.”
[15] Furthermore, in terms of Section 122 of the Code of Criminal Procedure Act, a person can be subjected to an examination by a medical practitioner with his own consent or in the event the said person does not consent, by an order of Court. The Section provides:
“(1) Where any officer in charge of a police station considers that the examination of any person by a medical practitioner is necessary for the conduct of an investigation he may, with the consent of such person, cause such person to be examined by a Government medical officer. The Government medical officer shall report to the police officer setting out the result of the examination.
(2) Where the person referred to in subsection (1) does not consent to being so examined, the police officer may apply to a Magistrate within whose jurisdiction the investigation is being made for an order authorizing a Government medical officer named therein to examine such person and report thereon. Where such an order is made such person shall submit to an examination by such Government medical officer who shall report to the Magistrate setting out the result of the examination.”
[16] Similarly, Section 13 of the Criminal Investigations (Bodily Samples) Act 1995 of New Zealand makes provisions for applications to be made to the District Court or to the High Court, seeking an order for a suspect (who is over 18 years or more) to provide his bodily sample during investigations. This application may be made where there is good cause to believe that the suspect has committed an offence and the suspect has refused to consent to the taking of a bodily sample. In terms of Section 16 of the Criminal Investigations (Bodily Samples) Act, a District Court Judge or a High Court Judge may make an order requiring the suspect to give his bodily sample where certain specific conditions are satisfied.
[17] Similar provisions for obtaining of bodily samples from a suspect are found in Sections 62 and 63 of the Police and Criminal Evidence Act of the United Kingdom 1984.
[18] However, in Fiji there is no such enabling legislation in place in its laws governing criminal procedure. Therefore, it is an urgent need for the Legislature of Fiji to enact similar provisions to facilitate the obtaining of bodily samples of suspects, during the course of investigations. This has been previously emphasized by this Court in State v. Kumar (supra).
[19] Due to the absence of any such enabling provisions, this application has been made by the State pursuant to Section 11 (3) of the Constitution. Section 11 of the Constitution is titled, Freedom from Cruel and Degrading Treatment. The Section is reproduced below:
(1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.
(2) Every person has the right to security of the person, which includes the right to be free from any form of violence from any
source, at home, school, work or in any other place.
(3) Every person has the right to freedom from scientific or medical treatment or procedures without an order of the court or without
his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.
[Emphasis is mine].
[20] By way of this application the State is seeking an order of Court to obtain the bodily sample of the Respondent for the purpose of DNA analysis. More specifically, to obtain his buccal sample for the purpose of DNA analysis.
[21] Section 100 (3) of the Constitution provides: The High Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction as is conferred on it under this Constitution or any written law.
[22] Further in terms of Section 100 (4) of the Constitution: The High Court also has original jurisdiction in any matter arising under this Constitution or involving its interpretation.
[23] Chapter 2 of the Constitution (Sections 6-45) is the Chapter establishing the Bill of Rights or Fundamental Rights in Fiji. As per Section 6 (1) this Chapter binds the legislative, executive and judicial branches of government at all levels, and every person performing the functions of any public office.
[24] However, Section 6 (5) of the Constitution provides as follows:
The rights and freedoms set out in this Chapter apply according to their tenor and may be limited by—
(a) limitations expressly prescribed, authorised or permitted (whether by or under a written law) in relation to a particular right or freedom in this Chapter;
(b) limitations prescribed or set out in, or authorised or permitted by, other provisions of this Constitution; or
(c) limitations which are not expressly set out or authorised (whether by or under a written law) in relation to a particular right or freedom in this Chapter, but which are necessary and are prescribed by a law or provided under a law or authorised or permitted by a law or by actions taken under the authority of a law.
[25] When reading the provisions of Section 11 (3) it is evident that the rights stipulated therein must be distinguished from the rights enshrined in Sections 11 (1) and 11 (2), which may be categorized as absolute rights. If Section 11 (3) was an absolute right it would have simply read: Every person has the right to freedom from scientific or medical treatment or procedures.
[26] However, that is not the case. The rights enshrined therein are conditional. If the provisions of Section 11 (3) is to be further analysed, it is my opinion that the rights stated therein are subject to the following two conditions:
[Emphasis is mine].
[27] According to the second condition, every person has the right to freedom from scientific or medical treatment or procedures, without his or her informed consent. Meaning that the said person cannot be subjected to any form of scientific or medical treatment or procedures, without his or her informed consent.
[28] In the event of the said person refusing to grant his or her informed consent, then the first condition would become applicable. Meaning that the said person cannot be subjected to any form of scientific or medical treatment or procedures, without an order of the Court.
[29] The provisions of Section 11 (3) of the Constitution must be distinguished from the provisions of Section 25 (2) of the 1997 Constitution, which read as follows:
Every person has the right to freedom from scientific or medical treatment or procedures without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.
[30] It is manifest from the reading of Section 25 (2) of the 1997 Constitution that the said provision only provided for the second situation. The portion without an order of the court or was not part of Section 25 (2). Therefore, if the person had refused to grant his or her informed consent the State would have had no other recourse.
[31] Therefore, the intention of the drafters of the 2013 Constitution is very clear. The intention was to provide for an alternative course of action in the event of the person refusing to grant his or her informed consent to be subjected to any form of scientific or medical treatment or procedures. The alternative course of action is that a person can be subjected to any form of scientific or medical treatment or procedures, with an order of the Court.
[32] As stated before, in the instant case, the order of Court the State is seeking is to obtain the bodily sample of the Respondent for the purpose of DNA analysis. More specifically, to obtain his buccal sample for the purpose of DNA analysis.
[33] It is understood that Deoxyribonucleic Acid or commonly referred to as DNA, is the hereditary material in humans and almost all other organisms. Nearly every cell in a person's body has the same DNA. DNA is the genetic information inside the cells of the body that helps make people who they are.
[34] DNA is the molecule inside cells that contains the genetic information responsible for the development and function of an organism. DNA molecules allow this information to be passed from one generation to the next.
[35] In the case of State v. (Kitione) Vakadranu [2019] FJHC 152; HAC 276.2016 (5 March 2019); His Lordship Justice Rajasinghe stated:
“The Deoxyribonucleic Acid or commonly known as DNA is a genetic blueprint of the human body. When a criminal leaves a stain of blood or semen at the scene of the crime, it may be possible to extract from the stain sufficient DNA of the criminal, which later can be compared with the DNA samples obtained from the suspect. It is a scientific process of comparison of DNA obtained from the crime scene with the DNA of the suspect. DNA evidence emerged as a reliable scientific evidence in the mid-1980s and gained its popularity and the confidence of its accuracy in the 1990s. Fiji is now slowly embracing the DNA testing and evidence in criminal trials.”
[36] In State v (Raymond Rajendra) Singh [2008] FJHC 202; HAM060.2008 (5 September 2008); His Lordship Justice Goundar confirmed that the DNA testing is a scientific procedure.
[37] A buccal swab, also known as buccal smear, is a way to collect DNA from the cells on the inside of a person's cheek. Buccal swabs are a relatively non-invasive way to collect DNA samples for testing. Buccal means cheek or mouth.
[38] It is the contention of the State that the procedure in taking the buccal sample from the Respondent would be physically harmless to him and that his physical autonomy will be duly respected.
Analysis
[39] The primary objection of the Respondent to this application is that he has been already charged for the alleged offence and the State ought to have obtained this evidence before charging him rather than charging him and now looking for further evidence.
[40] As to this objection, it is clear from the Affidavit of DC Joape that during the course of the investigations into this case, the Respondent had been approached and his consent had been requested for obtaining of his buccal sample for the purpose of DNA analysis. However, it is further stated that the Respondent had refused to provide his informed consent for the Police to obtain his buccal sample for the purpose of DNA analysis. The Respondent has not denied this assertion in the Affidavit filed by him or by way of his submissions made during the hearing. Therefore, it is now unreasonable for the Respondent to submit that the State ought to have obtained this evidence before charging him.
[41] That said, it must be mentioned that there has been a substantial delay in the State making this application seeking an order of Court to obtain the bodily sample (buccal sample) of the Respondent for the purpose of DNA analysis. As stated earlier, the date of alleged offending in this case is 1 December 2023. The Respondent had been arrested and produced in the Magistrate’s Court of Lautoka on 9 January 2024. The matter was first called before the High Court of Lautoka on 2 February 2024.
[42] The first occasion on which this Court was informed that the State intends to make an application seeking an order of Court to obtain the buccal sample of the Respondent for the purpose of DNA analysis, was on 5 September 2024. On that day, the Respondent consented to providing his buccal sample without objection.
[43] However, since the prosecution delayed in the process of obtaining his buccal sample (for nearly one month), when the matter came up next on 2 October 2024, the Respondent stated that he was again objecting to his buccal sample been taken.
[44] This application was formally filed in Court only on 13 February 2025, which is over a year since the matter first came before Court. Therefore, there has been a substantial delay in the State making this application seeking an order of Court to obtain the buccal sample of the Respondent.
[45] However, considering all the facts and circumstances of this case, I am of the opinion that in the interest of justice this application should be permitted. The objection taken by the Respondent is without merit. The State has sought this Court’s intervention since the Respondent had earlier refused to provide his informed consent for the Police to obtain his buccal sample for the purpose of DNA analysis when requested during the investigation stage. It is also stated that the obtaining of a buccal sample from the Respondent would be a physically harmless and a relatively non-invasive procedure.
[46] For all the aforesaid reasons, I am of the opinion that the application made by the State for obtaining of the buccal sample from the Respondent should be permitted in the interest of justice.
[47] Accordingly, I make the following orders:
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT LAUTOKA
Dated this 17th Day of April 2025
Solicitors for the Applicant : Office of the Director of Public Prosecutions, Lautoka.
Solicitors for the Respondent : Respondent Appeared in Person.
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