IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Criminal Case No. of 2007

STATE

V

RATU JOSAIA VANATABUTALA VUGAKOTO

Prosecution: Corp. Yasin, Police Prosecutor
Accused: Mr Rigamoto

Date of Hearing: 24 June 2009
Date of Ruling: 01 July 2009

RULING

[1] Counsel for the Accused Ratu Josaia Vanatabutala Vugakoto applied for hearing on voir dire objecting to admission of the Accused’s caution interview into evidence. The Prosecutor admitted that the Accused’s caution interview would be tendered into evidence by the State, and that it constituted a large part of the evidence the State would be relying on to prove its case. Therefore by consent the hearing on voir dire was conducted before the trial proper.

[2] The grounds of objection are that the Accused’s statement was obtained through assault and intimidation and oppression.

[3] The Accused Ratu Josaia gave evidence for the limited purpose of voir dire. He gave extensive details concerning the time he spent in police custody from Friday, 28th December 2007 to Wednesday, 2nd January 2008, when he was brought before the Magistrates Court to be charged.

[4] Ratu Josaia gave evidence that three police officers came to the Namadi Settlement where he was playing at around 3:00 pm on Friday, 28th December, 2007 and told him he was wanted at the police post. Ratu Josaia said that he agreed to go to the Post, he was told to put on handcuffs, and he was escorted by the officers to Namadi Police Post in handcuffs, where the Police asked him about some robberies. He said he told the Police he didn’t know anything, the police didn’t bother to record his answer but instead punched him in his ribs.

[5] In summary, the evidence of the Accused was that he was transferred that afternoon to Samabula Police Station where he was held in the cell overnight, and the next day [Saturday 29th December 2007] he was questioned in the crime office by two officers, Setoki and Amani. He said Amani beat him that morning.

[6] That afternoon, the officers came back and asked more questions, the Accused was taken back to Namadi Police Post and questioned again, and then taken back to Samabula Police Station, where the Accused had his dinner.

[7] According to the Accused, none of these interviews were recorded.

[8] That evening, after dinner, the Accused stated that two officers, Amani and Rouse, came to see him, they questioned him about some robberies again, and Amani punched him on the ribs while Rouse punched his head.

[9] The Accused gave evidence that on Sunday, 30th December 2007, Officers Setoki and Amani came after lunch and questioned the Accused again. The Accused said he was assaulted again, and that is when he confessed.

[10] At some point the Accused was moved to Raiwaqa Police Post as the cells at Samabula Police Station were full, and then moved back to Samabula. He was interviewed by some Indo-Fijian officers on Tuesday, 1st January, 2008, regarding some other cases.

[11] It was Wednesday, 2nd January, 2008, when the Accused was finally brought to Magistrates Court and charged.

[12] The essence of the Accused’s evidence is that he was subjected to repeated questioning and assaults, mainly consisting of being punched on the ribs, by various police officers on more than one occasion before he finally confessed under threat of the assaults continuing till he did so.

[13] The Accused identified three different police officers by name who were involved in the assaults on his person, namely Setoki, Amani and Rouse.

[14] The Accused said he asked to go to hospital but the police didn’t listen to him.

[15] The State tried to cast doubt on the Accused’s evidence by bringing out in cross examination that the Accused had certain opportunities to register a complaint about the alleged assaults with other police officers or ask to go to hospital but did not do so.

[16] The Accused readily admitted that he had received his meals whilst in custody, and that he was taken to the cell at night to sleep.

[17] The Accused was shown his caution interview and he identified his signature on the various pages of the caution interview and at the end where he answered no to a question concerning whether any force or threat was used, and where he certified the caution interview.

[18] The Accused’s aunt, Ms Selika Vatu, and his sister, Ms Latia Vana, also gave evidence.

[19] Ms Vatu said that she had seen the Accused from a distance, from across the road, as she had stopped her taxi outside Namadi Police Post when she spotted the Accused being placed in a police vehicle outside that police post on the Friday afternoon.

[20] The accused had waved to her and called to her from across the road to follow him to Samabula Police Station.

[21] He was handcuffed at the time and there were police officers present.

[22] On other visits she was not allowed past the counter at the police post or station while the Accused was in the cell.

[23]  It was the Monday evening when she was allowed to visit him in the cell, in the presence of a female Indo-Fijian officer. She noticed that the Accused had swelling over his left eye at that time.

[24] The Aunt said the Accused told her he had been punched.

[25] The Accused’s sister was there as well, and she also saw the Accused’s swollen left eye. She confirmed that the Accused said he had been punched.

[26] As to the Prosecution’s suggestion that the Accused never complained, the Court’s file shows that the Accused informed the Court on 2nd January 2008 that he had been punched by the police.

[27] Later, at his second Court appearance on 16th January, 2008, the Court remanded him in custody and ordered that the Accused be taken for medical examination.

[28] The State admitted that the Accused was never taken for medical examination as ordered by the Court.

[29] Although the Accused had named three different police officers who had punched him, the State only called one of those officers as a witness.

[30] The officer who gave evidence, one Officer Setoki of CID, had no memory of interviewing the Accused and relied solely on his interview notes with the Accused for his evidence. All he really remembered, after reviewing the interview notes, was that he was investigating a break in at 7 Ivar Place.

[31] CID Setoki flatly denied assaulting the Accused, he denied ever seeing another officer assault him and denied ever seeing any evidence of injury on the Accused.

[32] On cross examination CID Setoki admitted he had no recollection of Friday, 28th December, Saturday, 29th December, Tuesday, 1st January and Wednesday, 2nd January. The only days he remembered were 30th December and 31st December, as those were the days he interviewed the Accused as shown by the interview notes.

[33] It was an important element of the Accused’s evidence that he was taken into custody on Friday 28th December 2007 and questioned and assaulted on various occasions over that weekend until he finally agreed to sign a statement on 30th December 2007 under threat of further assaults.

[34] The State did not call any other witnesses or tender any documentary evidence with respect to this crucial time period to contravert the Accused’s evidence that he was held in custody all that time.

[35] CID Setoki did not even give any evidence as to whether or when he cautioned the Accused before questioning him, or as to the manner in which the caution interview was conducted.

[36] The State relied on the statement signed by the Accused at the end of the caution interview saying that he had not been assaulted.

The Law as to Admissibility of Statements

[37] The law as to the admissibility of caution interviews and confessions is helpfully summarised in the decision on voir dire given in State v Rokotuiwai, FJHC 159, High Court of Fiji, HAC 009 of 1995 (21 November 1996).

[38] It is for the State to establish beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by oppression or improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage.

[39] In that case the High Court cited the following extract from ARCHBOLD 39th Edition p.751 para 1380 on the meaning of oppression:

"The word "oppression" was considered by Sachs J. in R. v. Priestley (1965) 51 Cr. App. R. 1 ". . . this word . . . imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary . . . whether or not there is oppression in an individual case depends upon many elements . . . they include such things a the length of time of interviewing between periods of questioning, whether the accused person had been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world."

[40] Mr Rigamoto helpfully cited the case of Sovui v State, High Court of Fiji HAA 30 of 2008, FJHC 122 (13 June 2008) to the Court, in which Shameem, J said as follows:

"A scenario where the suspect is beaten just before an interview, or during the breaks in the interview, is an oppressive scenario. The facts undermine the apparent free will of the suspect. If those beating the Appellant were police officers (as he claims) and those interviewing him immediately after the assault were police officers, the confession obtained is rendered inadmissible. The confession has been obtained in circumstances of oppression, and no matter how honest and professional the interviewing process is, it cannot be assessed in isolation. How the Appellant is treated in the entire time of his custody affects the voluntariness of the confession."

[41] The same is applicable here. The Accused has given evidence of being punched while in police custody either during or just before questioning. He has given evidence of being held in custody from a Friday afternoon to the following Wednesday morning, with only one visit from family on the Monday evening, at which time he was observed to have an injury to his left eye.

[42] It is significant that this injury occurred while the Accused was in police custody, and that the Accused had been interviewed earlier on the same day that the injury was noticed by his family members.

[43] CID Setoki’s bare denial that the Accused had been assaulted by the Police, without more, is not sufficient to meet the State’s burden of proof that the Accused gave his statement voluntarily and of his free will, without oppression.

[44] In the circumstances, the Court holds that the State has not proven beyond a reasonable doubt that the Accused’s caution interview of 30th December 2007 was given voluntarily and of his own free will, and without oppression, and therefore the caution interview of the Accused dated 30th December 2007 is not admissible in evidence.

Dated this 1st day of July, 2009

Mary L Muir
RESIDENT MAGISTRATE
SUVA