State v Soronaivalu [1995] FJHC 138; Hac0010d.1994s (25 August 1995)

IN THE HIGH COURT OF FIJI
(SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0010 OF 1994

BETWEEN:

STATE

-v-

SEVANAIA SORONAIVALU

CHARGE: Murder: Contrary to Section 199 of the Penal Code, Cap.17
Rape: Contrary to Section 149 of the Penal Code, Cap.17.

Mr. Wilkinson and Mr. Hook for State
Mr. Gates for Accused

RULING

When the learned prosecutor sought to call the Interviewing Officer, Cpl. Kitione Kulavere and other police officers the Defence Counsel asked that Assessors to retire so that a voir-dire could be held as the Defence wished to challenge the admissibility of the verbal admission of the accused to Cpl.Kulavere in the cell at Vunisea Police Station and his statements given to the Police on the ground that they were not given voluntarily.

The Defence contended that the admissions given by the accused person were obtained as a result of oppression and breach of the Judges' Rules by the Police.

On the other hand the Prosecution maintained that the accused person's admissions were given voluntarily and of his own free will.

The Prosecution called five witnesses, four Police officers and one Prison officer who was on leave in his village in Naqalotu where accused also came from when accused was taken to Vunisea for questioning in relation to the alleged murder of Marama Tavukilala Kanaivalu in Korovou village on Kadavu.

Cpl. Kitione Kulavere said in evidence that on the evening of 10/12/93 he had a short conversation with the accused in the cell at Vunisea Police Station at approximately 6.15pm when accused admitted to him that he killed Marama. They were alone in the cell. After his admission Cpl. Kitione left for the barracks to change his clothes. When he returned he went to see accused again in the cell in the presence of Constable Samisoni Pita the Investigating Officer and Malakai Seru a prison officer who was on leave in Kadavu, as he wanted to get more information from him of what he had earlier admitted to him to enable him to brief his senior officer ASP Ereki who was at his village in Wailevu about five miles from Vunisea.

In this later conversation at about 8 p.m. accused told Cpl. Kitione that he met the deceased on the track leading to the beach from Korovou village. He ordered deceased to go to the bush where he laid her down the ground and raped her. The deceased yelled out in pain so he took off her red blouse and tied it around her neck and strangled her. He took her body a little distance uphill where he dumped it and placed a stone on top of it. He then went down the beach and swam across to the other side to wash away the blood stains on the blue jean he was wearing. The accused made his admission quite voluntarily. No force was used or promise made to him to induce him to make such admission. The accused was given dinner that evening and tea and pancake later on during the interview. Cpl. Kitione, after briefing ASP Ereki, then proceeded to interview accused under caution. Cpl. Kitione admitted that the two earlier interview in the cell of the accused he did not caution him. Although he recorded the admission in his Note Book the accused did not sign his admission.

Cpl. Kitione, however, cautioned the accused before the interview under the Judges' Rules. The interview commenced at about 10.30pm and ended at 12.35am the next morning. Accused signed the interview note and countersigned by Cpl. Kitione and Constable Samisoni. In his interview accused repeated his earlier admissions wherein he admitted raping and killing Marama. After the interview the accused was taken back to the cell. According to Cpl. Kitione accused gave his answers to his questions voluntarily. At 7 a.m. on the morning of 11/12/93 the accused accompanied by Cpl. Kitione, Constables Samisoni, Solomone and Inosi left Vunisea by punt for Korovou village for reconstruction of the evidence at the scene. On arrival at Rusia beach in Korovou village, accused who was handcuffed with Constable Inosi led the investigating team and pointed to the places where he first met the accused, where he raped and strangled her and where he dumped her body and placed a stone on top of it, and finally led the team to the beach through another way and showed them where he swam to the other side of the beach after killing the deceased. At the place where the body of deceased was dumped, accused demonstrated how he lifted and placed the stone on the body. Accused was not forced at the scene but voluntarily showed the team the places he committed the offences. They returned to Vunisea and the interview resumed at 1.05 p.m. in the presence of Constable Samisoni. Accused was cautioned again and the interview read back to him before he signed it after agreeing with its content.

Constable Samisoni's evidence supports that of Cpl. Kitione's but he denied that he promised accused that he would be released to go back to the village if he admitted killing Marama.

Constable Solomone who charged the accused in the presence of Constable Inosi supported the evidence of Cpl. Kitione and Constable Samisoni. Constable Inosi who countersigned the charge statement also supported the evidence of his colleagues.

Although there are inconsistencies in the police officers' evidence they are not as such so as to impair the prosecution's case in this voir-dire.

The accused who gave evidence himself denied any admission of killing or raping the deceased. He maintained that there was no note taken down during the interview and what he signed which is purported to be the interview notes were in fact all blank pages.

In this proceeding the main issue to be resolved by the court is "Did the accused person give his oral admissions and statements to the Police voluntarily?". If it decides that he gave them voluntarily then they should be admitted, if it is otherwise then they should be rejected.

I must, however, record my thanks to Counsels on both sides for providing me with a number of authorities which I found very useful.

The main basis for admissibility is that the confession was voluntary. See Ibrahim's case 1914 Appeal Cases at page 599.

The Defence main point of objection is that the statements were obtained in circumstances that amounted to oppression. Oppression, however, is a question of fact. Some of the facts that courts look at are the time in detention, during interrogation and the conditions of that detention as set out in R v. Prager [1972] 1 All ER at page 1114.

"The Judges' Rules 1964 are not rules of law and their non-observance will not necessarily lead to a confession being excluded from evidence, unless it is shown that the confession was not made voluntarily. Accordingly where it is alleged that a confession has been obtained in the course of questioning which was not introduced by a caution in accordance with r.2 b of the 1964 rules it is open to the trial judge to admit the confession on the basis that it was made voluntarily without ruling on the question whether it was obtained in breach of the rules (see p 1118 e and j to p 1119 a and p 1120 b, post).

In order to establish that a confession is not voluntary in that it was obtained by 'oppression', it must be shown that it was obtained in circumstances which tended to sap, and did sap, the free will of the suspect. 'Oppressive questioning' may be described as questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have remained silent (see p 1119 c to f, post).

Oppression is something that has sapped the free will which must exist before a confession can be taken as voluntary. When the evidence in this case is scrutinised there is undoubtedly a firm denial by the accused when he gave evidence on oath that he made any admission at all to the police. He claimed that he did not know the reason that he was accompanying the police from Naqalotu to Vunisea, yet in cross-examination, he conceded that he did know the reason, that he had heard of the investigation, he had heard of the disappearance of a young girl, and that he was not surprised, and he knew full well that the police had wanted to talk to him about the disappearance of that girl. He admitted that he made no protest, nor did he lodge or register any complaint. He also, indicated that he was allowed to pack his clothes and had his meal in the late afternoon. He said on the journey he was dry and comfortable and on arrival later that night he was neither thirsty nor hungry. He was cautioned before the main interview took place and before the charge statement took place as well.

There is no suggestion that the interview was arduous in its length or that it was vigorous in the delivery of questions. The accused said that he was aware of the times, but it was dark when the interview commenced. He denied being interviewed in the cell as stated by Cpl. Kitione, Constable Samisoni and Prison officer Malakai. He conceded that he was asked between seven to twelve questions. There was a break during the interview and accused was given tea and pancake.

Accused maintained that none of the hard questions was being put to him about where the girl was killed, murdered or what part he had to play. His account is that the police officers mainly talked to themselves. He felt comfortable; and was not intimidated, and that he had known Constable Samisoni for some 10 years. He was happy to be interviewed by Cpl. Kitione and conceded that there was no threat or force of any kind at any time.

One may pause here and ask, Is that behaviour in those circumstances capable of amounting to oppression?. The difficulty that faces the Defence is that on the one hand they say that the confessions were obtained in circumstances which amount to oppression, and on the other hand they maintain that no admissions at all were made at any time. If the defence is believed that no admissions were made then the objection on the ground of oppression is non-existent. Whereas if the court believes the prosecution then the accused is not being truthful. It is difficult to accept that if this court having determined that accused is not truthful and then determine that those admissions were made in the context that they were under oppression.

On this ground of alleged oppression I do not find it convincing enough for this court to reject statements of the accused person as not being given voluntarily.

There is no dispute that the oral admissions by the accused in the police cell were made without any caution being administered hence the likely breach of the Judges' Rules. Both the caution and charge statements were, however were taken under caution.

In Jagendra Sharma v Regina FCA, VOL. 16 p.5 the FCA held:

(1) That the Judges Rules are rules of conduct directed to the Police and no more.

In R v. Convery 1968 NZLR page 429.

The appellant's argument is that the statements should not have been admitted as being in breach of r.r. 2 and 3 of the Judges Rules.

It was stated in that case:

"It has to be remembered that they are not rules of law. See R v. Bass [1953] 1 Q.B 680; [1953] 1 AER 1064 and Smith v. Queen [1957] HCA 3; (1957) 97 C.L.R. 100. The Court should not just ask itself was one of the Judges' Rules broken? The real question is were the circumstances under which the statement was obtained such that in the interests of Justice it would be unfair to admit them and in deciding that regard must be had to whether there was a breach of the Judges Rule".

In answer to the above question I do not believe that the circumstances under which the statements of Accused were obtained would render such statements unfair to admit in the interests of justice.

They are of course subject to the discretion to exclude evidence if the Judge finds that a breach has been proven, on all the relevant and admissible evidence.

Furthermore there is no rule at Common Law or under Statute, that provides a right to have a solicitor, or for that matter, a friend or relative present during the conduct of a caution interview.

In Shiu Narayan v R. FCA, Cr. App. No. 29 of 1980 at page 13, referring to Driscoll v. R (1977) CLR 137 at page 522:

"I also agree that, if practical, a solicitor should be allowed to be present at an interrogation.........."

The Court, in Shiu Narayan then went on to say:

"Of course what may be practical in Australia may not necessarily be so in Fiji.....". The court then referred to paragraph (c) of the Judges Rules. The Court then held at page 14 "as the accused had already been advised of his rights by his solicitor, and there was no law providing that a solicitor might intervene during the course of the interview------. There was no basis for holding that a statement could not be given in evidence on this ground.

In the case of R v. Sang AER 1979, vol.2 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---------".

In R v. Sang (supra) Lord Diplock again said at page 1228:

"So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value."

Article 6 (2) & (3) (b) of the Constitution provides:-

Any person who is arrested or detained shall be informed as soon as reasonably practicable,----- of the reasons for his arrest or detention----- and who is not released shall be afforded reasonable facilities to consult a legal representative of his own choice...." This question has been recently addressed by the FCA in Naqiri v. State, Cr.App. No.11 of 1993, in a judgement delivered on 17th November, 1994. In this case, it was held at page 9 of the judgement that:"------- it is of course, a question of fact, and of inferences to be drawn from facts established, whether the appellant was under arrest or detained." In fact, for a person to be held in custody, there must be something done or said to make the accused believe he was in custody. In Naqiri (supra) the evidence showed that the accused was not free to move about the police station--------.

At page 10 of the Judgement in Naqiri's case the Court made the following findings:-

(i) The Accused may well have been in custody all day;

(ii) There was no evidence he was afforded any facilities to contact a lawyer; and

(iii) There may have been a breach of section 6 of the Constitution.

Despite these findings, the Court of Appeal, of its own authority, after considering the consequences of a failure to comply with the Judges Rules as discussed in the English Court of Appeal in Prager v. R. (1971) Cr. App. R 151, held that:

"(i) A breach of the Constitution in this manner gave a possible right to remedy found in Article 19 of the Constitution - i.e. action for unlawful imprisonment, but did not render inadmissible a record of interview made after caution; and at page 11----.

(ii) " After taking into account what was fair and reasonable in all the circumstances, but, above all, whether or not the questions had been answered, and the Statement made voluntarily."

The accused in this case was educated up to Form IV at Richmond High School in Kadavu and could speak, read and write in English.

In my view this case falls in Naqiri's category and if there had been any unlawful imprisonment his remedy lies in a civil action.

Having regards to the evidence adduced in this voir-dire and in the light of the authorities discussed, I find that the probative value of the evidence sought to be admitted by the Prosecution far outweighs its prejudicial effect, I therefore find that the statements of the accused and his oral admission were given voluntarily and therefore admissible, and I so rule.

S W Kepa
JUDGE

25th August, 1995

HAC0010D.94S