State v Tukana [1990] FJHC 42; Hac0012d.88s (6 May 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 12 OF 1988

STATE

v.

1. INIA TUKANA
2. IZAAZ KHAN
s/o Shaheed Khan

ROBBERY WITH VIOLENCE: Contrary to Section 293(b) of the Penal Code Cap.17

Mr. S. Senaratne for the State
Accuseds in Person

RULING

On the enquiry of State Counsel both accused persons objected to their caution interviews being admitted in evidence against them.

They both claim to have been assaulted by unidentified police officers before and during the course of their interviews that were conducted in the Crime Officer's room at the Raiwaqa Police Station on the morning of the 9th of September, 1987.

I remind myself that before a confessional statement or admission can be adduced in evidence against its maker the prosecution must satisfy the court beyond all reasonable doubt that it was made voluntarily in the exercise of the maker's freewill.

In this short trial within a trial the prosecution called 3 police officers Sgt Josefa Delailomaloma, who recorded the confession of the first accused Inia Tukana; Constable Albert King who recorded the charge statement of Inia Tukana and Cpl V. Permal who recorded the interview of the 2nd accused Izaaz Khan.

There was also tendered and produced the following 5 written records:

Ex.A and A1: The original Fijian interview record and English translation of the 1st accused Inia Tukana;

Ex.B and B1: The original Fijian and English translation of the charge statement of the 1st Inia Tukana; and

Ex.C and C1: The original English (interview) record of the 2nd accused Izaaz Khan.

Sgt Josefa testified that this offence was reported to the Raiwaqa Police Station in his absence sometime in the afternoon of 8th of September 1987 by the victims who also provided a description of the robbers.

The report was later referred to him to investigate and he in turn briefed the other crimemen on duty at the station about the description of the suspects. He also directed them to make every effort to locate and apprehend the suspects.

Thereafter he left the station with PC King and the victim to visit the scene of the incident at Joe's Shopping Centre at Nairai Road, Raiwaqa and from there to the CWM Hospital so that the victim could be examined and treated for a bleeding nose.

On returning to the station he learnt that the suspected robbers were seen in a taxi heading for Sardar Trading.

He quickly arranged a police party of 5 men including himself and they set-off for Sadar Trading.

At Sardar Trading the taxi and the suspects were spotted and the police vehicle was used to block-off the only exit gate. The police party alighted and proceeded to arrest 3 of the 4 passengers, the other having escaped by jumping over the fence that enclosed the area.

In his evidence Sgt Josefa described how he came to arrest the 1st accused in this trial Inia Tukana (after removing the ignition keys of the taxi) he said:

"As I opened the rear door behind the driver Inia Tukana rushed out with a bottle in his hand. He rushed at me and I kicked his hand holding the bottle and the bottle fell on the ground. I then grabbed hold of him and we both fell on the ground. Then Ilikena Bula fisted me on the back."

(After arresting Ilikena) he continues:

"I next saw Inia Tukana with a piece of timber in his hand rushing towards PC Vinod. I got hold of Inia Tukana and managed to disarm him. He struggled with me and managed to free himself and he ran and collided with the front bonnet of the private car of Mr. Harnam Singh and fell heavily on the ground. I went and picked him up. I noticed he was bleeding from the mouth. He could hardly stand up so I carried him to the police van."

The 3 suspects that were arrested at Sardar Trading were escorted to the Raiwaqa Police Station where they were locked in the cell. They were not interviewed on that day because they were too drunk. Instead they were interviewed the following morning.

Sgt Josefa whilst admitting to "assaulting" the 1st accused at Sardar Trading in the course of arresting him, denied any assault occurred at the Raiwaqa Police Station either before or during his interview which lasted from 10.00 to 10.45 a.m.

He saw the 1st accused bleeding from the mouth and face but it didn't occur to him to take him to hospital for a medical examination and treatment because there was no procedure such as existed for robbery victims.

Unfortunately and in the circumstances of this case imprudently there was no witnessing officer present throughout the 1st accused's interview as is the usual practice.

Similarly the 1st accused Inia Tukana was charged by an officer who had been involved in the investigations and was also in the arresting party at Sardar Trading. Here too no witnessing officer was present during the charging of the 1st accused.

The Fiji Court of Appeal in Cr. App. No. 78 of 1984 Emosi Qalomai v. R. had this to say about witnessing officers and charging officers:

"Crown Counsel concedes that, according to the practice universally followed by investigating officers, a person arrested for an offence is handed to an officer completely unconnected with the investigation for laying the formal charge and recording any statement that the accused then might make. This, equally universally, is done in the presence of another witnessing officer. Though not a legal requirement, we consider this to be a salutary practice which does much to persuade the courts of procedural propriety on the part of the police where admissibility or authenticity of the statement becomes an issue. There was no explanation why this procedure could not be adhered to ........"

In this present case State Counsel unconvincingly sought from the bar table to explain the absence of witnessing officers by reference to manpower problems at Raiwaqa Police Station but the fact remains that the interviewing officer Sgt Josefa when asked about it by the court said: "It did not occur to me because it wasn't compulsory."

It is noteworthy that a completely independent police officer conducted the interview of the 2nd accused Izaaz Khan. He was Cpl Yengtesh Permal and he interviewed the 2nd accused between 9.00 a.m. and shortly after 1.00 p.m. on the 9th of September, 1987.

In his sworn evidence Inia Tukana said:

"I was taken to the interview room and forced to give my statement. I was fisted and sworn at for me to give my statement and I was forced by 3 police officers to sign my statement. Because I was scared of the way I was treated and also I had received injuries at Sadar Trading that's why I gave my statement. I was forced to make that statement. I don't agree with the contents."

In cross examination he denied assaulting Sgt Josefa. He had resisted his arrest because he didn't know why the police wanted to take him. He didn't struggle with Sgt Josefa instead he (the Sgt) got hold of him and threw him on the ground. He didn't complain to the magistrate because he didn't know he could as that was his first court appearance.

However the medical report tendered by him reveals that a complaint was made at the Central Police Station at 10.30 a.m. on the 10th September 1987 which would have been soon after he had been released on bail by the Magistrate Court.

The medical report (Ex.D-1) details the following (7) injuries:

(1) 2 longitudinal bruises on back (L) shoulder at back 20 cms in length 1 1/2 cms apart;

(2) 5 cm long bruise on the back on right side;

(3) 15 x 2 cm bruise on the back running obliquely from right waist to across the midline on (L) at the back;

(4) 8 x 1 cm bruise on the back (L) arm running horizontally at about middle of the arm;

(5) 3 Grazes on ulnar (outside) aspect (R) forearm:

(a) 3 cm x 0.5 cm

(b) triangular 2cm all around

(c) 3 cm x 2 cm;

(6) Graze with bruising: 6 x 2 in front of (L) ear and (L) side board; and

(7) Left shoulder bruise on the outer aspect 6 cm x 5 cms with graze 1 cm x 1 cm.

According to the doctor who examined the 1st accused the injuries numbered (1) to (5) were caused by blunt objects such as a stick, cane or rod and injuries (6) and (7) from contact with a blunt object such as a floor, wall or ground.

The 2nd accused Izaaz Khan also gave sworn evidence that he was assaulted at the Raiwaqa Police Station shortly after they arrived there from Sardar Trading. He described how he was punched on the left jaw by Sgt Josefa and he "flew in the corner of the room". Then 3 or 4 Fijian officers started pulling and punching him whilst Indian officers kicked him in the chest and stomach. Thereafter he was taken and locked in the cell with the 1st accused and Ilikena Bula.

The next day he was taken to a room to be interviewed where he was again assaulted by a tall dark Indian policeman and threatened by the interviewing officer to tell them what they wanted to know. He made no complaint to the Magistrate when taken to court nor did he obtain a medical report or treatment for his swollen face and body pain.

Then Ilikena Bula was called as the only defence witness and he testified that he saw the 1st accused Inia Tukana being assaulted with pieces of timber that were lying about at Sardar Trading. He also heard him calling out in pain "oilei, oilei" when he had been taken to be interviewed.

Similarly he heard the 2nd accused Izaaz Khan yelling out in pain shortly after he (Ilikena) had been locked in the cell on the day they were arrested and the following day shortly after the 2nd accused had been taken away to be interviewed.

I have carefully considered the evidence in this trial within a trial and have paid particular attention to the demeanour of the witnesses who testified before me. I have no hesitation in finding that the police had sufficient grounds to arrest the accused on suspicion for having committed this offence.

I also find that the first accused Inia Tukana did attempt to escape and did resist his arrest at Sardar Trading.

However I am equally convinced that in effecting his arrest and overcoming his resistance, excessive force and unnecessary means were used causing him quite extensive injuries. I am also not satisfied that the prosecution have discharged the onus of proving beyong all reasonable doubt that the interview record and charge statement of Inia Tukana were voluntarily made.

Needless to say the 1st accused Inia Tukana was just 17 1/2 years of age at the time and had never been to court.

There was no officer present to witness either his interview or charge statement and the police's failure to offer or obtain for him any medical treatment in the face of his visible bleeding reveals an almost callous disregard for his welfare.

Accordingly the interview and charge statement of the 1st accused Inia Tukana are ruled inadmissible and may not be led in evidence.

The case of the 2nd accused however presents the court with fewer problems. I found him to have exaggerated the nature and extent (if any) of the assaults on him. Furthermore it seems to me that the fairly marginal admissions of the accused in his interview record when compared with his recorded denials lends considerable support to the police's denials of any impropriety on their part in the treatment of the 2nd accused Izaaz Khan.

Accordingly I find that I am satisfied beyond all reasonable doubt that the interview record of the 2nd accused was voluntarily obtained and I rule it admissible in evidence.

(D.V. Fatiaki)
JUDGE

At Suva,
15th June, 1990.

HAC0012D.88S