State v Vakarorogo - Ruling [1994] FJHC 44; Hac0013d.93s (5 May 1994)

IN THE HIGH COURT OF FIJI
(SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 13 OF 1993

BETWEEN:

STATE

-v-

1. JOSEFATA VAKAROROGO
2. SAKIUSA SOKO

CHARGE: Rape -
Contrary to Sections 149 & 150 of the Penal Code, Cap. 17.

Ms. Rice for the State
The Accused in persons

RULING

The two accused in this case 1A Josefata Vakarorogo and 2A Sakiusa Soko who are unrepresented challenged the admissibility of their caution statements to the Police on the ground that they were not made voluntarily as they were obtained as a result of Police assault.

Consequently a Trial within a Trial was held in the absence of the Assessors. The Prosecution called three Police officers to testify on its behalf and for the Defence both accused gave evidence in addition to the evidence of a civilian Mosese Davetawalu called by the 1A.

Both Constable Saula and Cpl.Livai denied assaulting the accused and maintained that both accused confessed raping Waqa Robanakadavu voluntarily and of their own free will. No other Police officer threatened, offered any favour or assaulted any of the accused. The Court also heard from these two Police officers that no complaint of any assault on the two accused were made to the Police or to the Magistrate when both accused appeared in Court nor did they seek medical examination after they were released on bail.

Constable Tavaga charged the accused who refused to make any statement to him. Both accused did not complain to him of being assaulted by any Police officers.

Josefata Vakarorogo 1A said when he was brought to the Police Station he was assaulted by five Police Officers but he could only remember Constable Saula who was beating him on the back and left shoulder with a stick. He was not assaulted in the face but only in the back. He was also kicked in the back. He could not stand the pain in his body so he admitted taking part in the rape of Waqa Robanakadavu to avoid any further beating. He said he did not complain of assault to any Senior Police Officer or the Magistrate as he was only interested in getting bail and continue with his education.

Mosese Davetawalu who was brought in with Josefata supported the evidence of Josefata that Constable Saula was holding a stick and hitting Josefata's back with it while the other Police Officers assaulted him as well. Mosese too was assaulted but when Waqa Robanakadavu was brought in she told the Police that Mosese did not rape her so he was taken to another room by Constable Livai. He was standing in the doorway with Josefata when Constable Saula hit Josefata with a stick. At that time 2A Sakiusa Soko was not with them when Josefata was assaulted by the Police. There were about 4 or 5 other Police Officers who took part in the assault of Josefata beside Constable Saula. Josefata was ducking their punches and covering his face to avoid injuries. The Police Officers were also swearing at Josefata. Mosese denied discussing with Josefata what to come and say in Court.

Sakiusa Soko 2A said he was denying raping Waqa Robanakadavu to the Police when Waqa was brought in and he was threatened to tell the truth. When he told Police he did not know anything about the alleged rape of Waqa they started assaulting him as Waqa pointed him out to the Police. He said he could not bear any further assault so he admitted taking part in the rape. He remembered that it was Constables Saula and Ralulu punching his head and face. He left eye was swollen and he asked the Police if he could go to Valelevu Health Centre for treatment but was refused by the Police. He did not complain to anyone of Police assault as he told Police he would tell everything in Court at his trial. He denied raping Waqa Robanakadavu.

In this proceedings the main issue to be resolved by the Court is "Did the two accused give their statements to the Police voluntarily". If it decides that they were given voluntarily then they should be admitted. If it is otherwise then they should be rejected. The accused's main ground of challenging the admissibility of their statements is that their confessions were made as a result of assault by the Police and were made under fear.

The Court in its endeavour to reach a decision must remind itself whether the circumstances under which the statements were obtained such that in the interests of justice it would be unfair to admit them.

In the case of R v. Sang AER 1979, Vol 2 at page 1231 Lord Diplock said:

(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.

(2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused, after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The Court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities an agent provocateur."

The case of the two accused is so inextricably intertwine that if the Court accepts the evidence of Josefata and Mosese that the Police assaulted Josefata then it follows that the evidence of Sakiusa Soko of Police assault must be treated in the same manner.

In analysing and assessing the evidence including the demeanour of both the Police Officers and that of the defence I cannot help but believe that both accused were assaulted by the Police. Surely the Police have alternative sources of finding evidence in order to bring the accused to justice, rather then resort to assault to obtain their objective.

In my opinion the prejudicial effect of this piece of evidence far outweighs its probative value. I therefore find that the statements of the two accused persons were not given voluntarily and therefore inadmissible, and I so rule.

S W Kepa
JUDGE

5th May, 1994.