State v Wakilau - Ruling [1993] FJHC 100; Hac0014r.93s (29 October 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 14 OF 1993

THE STATE

v.

MANUELI WAKILAU
AND 6 OTHERS

ARSON: Contrary to Section 317(a) of the Penal Code, Cap.17
MURDER: Contrary to Section 199(1) and Section 200 of the Penal Code, Cap. 17

Mr. I. Wickramanayake for the State
Mr. T. Fa for all Accused persons

RULING

Last Thursday 21.10.93 at the request of learned defence counsel and in the absence of the assessors this court began a 'trial within a trial' to determine the voluntariness and admissibility of the caution interview records of all 7 accused persons and the charge statement of the 6th accused which the prosecution seeks to lead in evidence in the trial proper.

At the request of the court learned defence counsel formulated the general basis of the objection to the admissibility of the statements. He claimed that the statements were all 'involuntary' in so far as they were obtained as a result of the assaults and abuse of each of the accused persons by the police.

In dealing with this issue of voluntariness 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.

I am also guided by the various principles set out in the Judges Rules and in particular principle (e) which provides:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression."

In this 'trial within a trial' in seeking to discharge its onus the prosecution called 6 police officers as follows:

P.W.1: D/Cpl 753 Petero Narokolevu the investigating officer who interviewed the 4th accused Ratu Josua Raqio;

P.W.2: D.C. 1109 Solomone Kuru who interviewed the 1st accused Manueli Wakilau and the 7th accused Iowane Taukeisalili;

P.W.3: D/Sgt. 800 Rogosiano Ratini who interviewed the 3rd accused Ratu Marika Beranaqe;

P.W.4: D.C. 1407 William Lomani who was the witnessing officer during the interviews of the 2nd accused Timoci Loqai and the 6th accused Saiasi Lewaca by D/Cpl Sekove;

P.W.5: P.C. 2154 Iliesa Bolabiu who like Constable Lomani was present and witnessed the interview of the 5th accused Iosefo Turaga by D.C. 374 Tevita; and lastly

P.W.6: P.C. 1279 Tomasi Delana who charged the 6th accused Saiasi Lewaca and recorded his charge statement.

The statements produced by the prosecution witnesses at the "trial within a trial" are marked as follows:

Exhibit P1 - Interview Statement of Rt. Josua Raqio (4th accused)

Exhibit P2 - Interview Statement of Manueli Wakilau (1st accused)

Exhibit P3 - Interview Statement of Iowane Taukeisalili (7th accused)

Exhibit P4 - Interview Statement of Rt. Marika Beranaqe (8th accused)

Exhibit P5 - Interview Statement of Timoci Logai (2nd accused)

Exhibit P6 - Interview Statement of Saiasi Lewaca (6th accused)

Exhibit P7 - Interview Statement of Iosefo Turaga (5th accused)

Exhibit P8 - Charge Statement of Saiasi Lewaca (6th accused)

The prosecution's case very simply is that the accused persons were brought in 2 groups to the Navua Police Station where they were individually interviewed in the station bure which was being used as the crime office. Each of the police officer's called denied personally assaulting, swearing or threatening the accused person(s) or witnessing any such impropriety occurring in his presence. They all testified that the interviews were taken under caution, were voluntarily given and properly signed.

On the other hand each of the accused persons testified on oath to being assaulted, threatened and abused. In particular:

Accused 1: Manueli Wakilau testified that he was punched, sworn at and spat on by the witnessing officer Insp. Tito and P.C. Iliesa Bolabiu;

Accused 2: Timoci Loqai testified that Constable Nacani Bolabiu punched him, swore at him, pulled his hair, spat on his face and threatened to urinate in his mouth;

Accused 3: Rt. Marika Beranaqe complained that he was punched in the stomach and chest, sworn at and spat on by the interviewing officer Sgt. Ratini. He also claimed that the chair he was sitting on was kicked from under him;

Accused 4: Rt. Josua Raqio claimed he was assaulted from behind by Constable Nacani Bolabiu and on the thighs by D/Cpl Petero the interviewing officer whenever he hesitated in giving an answer. He was also made to stand on one foot and pull his ears for 5 minutes;

Accused 5: Iosefo Turaga testified he was assaulted by Constable Tevita on the stomach and ribs. He also had his testicles squeezed;

Accused 6: Saiasi Lewaca testified that he was assaulted by Cpl. Sekove the interviewing officer after his request for a deferment of his interview was rejected. He was also assaulted and sworn at by D.C. Tomasi Delana the charging officer and forced to make a charge statement.

Accused 7: Iowane Taukeisalili claimed that throughout his interview, he was assaulted by Insp. Tito, sworn at and spat on. He was adamant that he was interviewed in the Navua Police Station proper and not the station bure as claimed by the interviewing officer and undisputed in cross-examination of the officer.

In short, with minor variations, each of the accused persons testified on oath that he had been punched, abused, and spat on during his interview.

Faced with the sworn denials of the police officers and the sworn assertions of the accused persons a decision must be made as to the credibility or otherwise of the opposing evidence.

In this relatively short 'trial within a trial' I have noted the following unsatisfactory aspects in the prosecution's case:

(1) Two of the police officers Insp. Tito and Constable Nacani against whom serious allegations of ill-treatment have been made were not called to testify;

(2) All accused persons were charged by the same officer;

(3) Several of the accused persons were interviewed by the same officer; viz P.C. Solomone Kuru interviewed the 1st and 7th accused and Cpl. Sekove interviewed the 2nd and 6th accused; and

(4) The clear breach of principle (d) of the Judges Rules in the recording of the interview of the 5th accused.

Against the accused persons I have noted:

(1) The absence of any prior complaints to anyone about the alleged ill-treatment each suffered at the hands of the police;

(2) The absence of any claim that the accused persons had wished to remain silent or had lied as a result of the ill-treatment. Indeed the distinct impression given by some of the accused's persons was that they were being "rushed" into answering questions by the police officers during the course of their interviews;

(3) The absence of any injuries of any kind other than an unsubstantiated complaint of "pain"; and

(4) The rather marginal admissions of most of the accused persons in their interview records also lends in my view some support to the sworn denials of impropriety on the part of the police officers concerned.

I have also borne in mind that the accused persons are relatively young ordinary villagers who would be unfamiliar with police practices and court procedures.

Then there is the evidence of Virisiano who testified that whilst in an adjoining office in the station bure he saw Timoci Loqai (the 2nd accused) being punched by Constable Nacani; the other defence witness Ponipate Bale who had unsuccessful gone to Navua town in search of yagona to buy, said that he had gone to the Navua Police Station to investigate a noise and saw Manueli (the 1st accused) being punched in the station bure by both Tito and Constable Iliesa. He also heard them swearing at Manueli before he was chased away by Insp. Tito.

Learned defence counsel submits that both defence witnesses are honest and reliable witnesses with nothing to gain from testifying in this 'trial within a trial'. Prosecuting counsel on the other hand sought to raise the 'improbabilities' of the witness' evidence as grounds to doubt their veracity.

It must be said that the evidence of the 2 defence witnesses was never raised or put to the relevant prosecution witnesses at any time nor were they even mentioned in the evidence of the accused persons. Indeed their presence at the Navua Police Station bure and compound was first established only when the witness testified in court. Little wonder then that prosecuting counsel described Ponipate as a "convenient witness".

Having carefully considered the evidence led in this 'trial within a trial' by both the prosecution and the defence and bearing in mind the demeanour of the witness I have no hesitation in finding that the accused persons have exaggerated their evidence as to the nature, extent and effect of the police actions during the recording of their interview statements and in the recording of the charge statement of the 6th accused.

Equally I am satisfied that the police officers concerned did exert some "pressure" on the accused persons during the course of the interviews but not to such a degree as to raise in my mind a reasonable doubt as to the voluntariness of the interview records or the charge statement of the 6th accused.

Accordingly I find that the caution interview records of all 7 accused persons are voluntary and may be led in evidence. Similarly with the charge statement of the 6th accused I rule that it is voluntary and admissible.

(D.V. Fatiaki)
JUDGE

At Suva,
29th October, 1993.

HAC0014R.93S