State v Bainivanua [2001] FJHC 32; Hac0006d.2000s (8 June 2001)

Fiji Islands - The State v Bainivanua - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 006 OF 2000S

STATE

&-GB>

-v-

WATISONI BAINIVANUA

Mr F. Vosarogo for the State

Accused in Person

Hearing: 7th & 8th June 2001

Ruling: 8th June 2001

RULING ON VOIR DIRE

The Accused objects to the admission in evidence of his statements to the police on the grounds that he was assaulted by police, and forced to sign the statements. As a result of his objections, a trial within a trial was held in the absence of the assessors. The prosecution called 7 police witnesses who gave evidence as to the time and circumstances of the accused’s custody at the Raiwaqa Police Station, and of the taking of his statements under caution. The accused gave evidence on oath, and called one witness.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As a matter of law, a confession made by the accused to the police, is a statement made to a person in authorit such, the statement is onls only admissible if the prosecution has proved that it is voluntary, and that it has not been obtained by hope of advantage, or fear or by oppression. The prosecution must prove admissibility beyond reasonable doubt. Breaches of Judges Rules are relevant to the question of admissibility but the overriding principle is that of voluntariness.

It is not necessary to traverse in detail the evidence of each witness. Suffice it to say tha evidence of the prosecution is that the accused was broughrought in for questioning in another matter, by the police at Raiwaqa Police Station, on 25th March 1998 at 7.40pm. He was locked in the cell, and was interviewed by police officers at 8am on the 26th of March. He was locked up again in the cell at 8.40am. He was then interviewed for this case from 7.35pm on the 26th. At 9pm the interview was suspended, and resumed the next morning starting with a reconstruction at Rups Investments in Raiwaqa. The interview ended at 10.30am and a charge statement was obtained immediately thereafter.

There can be no doubt at all, that whilst the accused was at the Raiwaqa Police Station, he was in custody. He was locked e cell, and was not free toee to go home. The question of the voluntariness of the statements must therefore be considered from the position of a person in police custody.

He was interviewed by DC Malakai Seru from 7.30pm on 26th March 1998, in the Raiwaqa Police Station Crime Office. The interview included a reconstruction of the scene at Rups Investments at Grantham Road, on the morning of the 27th of March.

The reconstruction took place before 9am. The interview resumed at 9am and five questions later, it came to an end. There is no red time for the termination tion of the interview. However the Accused was taken back to the cell after he was interviewed and charged. He was taken to the courthouse at about 2pm the same day.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Accused was charged by DC 1877 Daveta, between 10.30am and 10.50am, immediately after the conclusion of the interview.

In both his caution statement and his charge statement, the Accused made incriminatory statements.

The accused alleges assault and oppression. In particular he alleges that he was lted whilst in custody, that he complained about his injurinjuries, and that DC Malakai forced him to make a statement. He alleges that DC Daveta, the charging officer, also assaulted him on his hands, with a stick. These allegations were all denied by the officers concerned.

On oath, the accused said he was picked up in Raiwaqa by poofficers in a van, while he was on his way to a grog party at about 6pm on the 25th of Marc March. He said he was forced into the van and handcuffed. At the Raiwaqa Police Station he was made to sit on the floor, and he was beaten by 15 policemen none of whom he could identify. He said that he was accused of taking part in a lot of cases including this one. He was locked in a cell, and released the next morning. He was then taken to the Crime Office where he was beaten again by DC Malakai and DC Daveta with another police officer. He said that they fabricated the statement and the charge statement and that he finally signed the statements out of fear.

He said that the statements were made up by the police from mation they received from Taniela. He said that at the reconstruction of the scene (the time time of which he could not recall) the police showed him the place where the robbery occurred. He said he was taken to court at 3pm on the same day with a number of injuries.

He said he complained to the Magistrate who ordered a medical check-ut that he was never allowed to go to the hospital. He said that on his release from custodustody 2 weeks later, he did not see a doctor but instead opted for traditional massage. He said he went to the x-ray department of the hospital 2 months ago as proof that he had a broken rib but that he has not been given the x-ray report.

He was vigorously cross-examined by State Counsel.

Under cross-examination he said he had also complained to the Ombudsman, and agreed that he had not put to DC Malakai and DC Daveta that they had fabricated his interview and charge statements.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Defence Witness 2 Josefa Baleloa, is a serving ner who gave evidence that on the 25th of March 1998, he had been in a cell at the Raiwaqa waqa Police Station, when the accused was brought in. He said he saw the accused being severely beaten by police officers in the reception area and in the cell. He said that he was beaten in the cell again the next day. He himself went to court at 9am on the 26th. Under cross-examination DW2 was unable to remember the details of the incident but said the accused had been taken to the Crime Office where he had also been beaten. He agreed that he had forgotten all about the case until the accused had refreshed his memory this morning before he gave evidence.

After considering all this evidence, and after directing myself the burden of proving voluntariness and admissibility is on the prosecution, I am satisfied bied beyond reasonable doubt that the police officers at Raiwaqa Police Station acted properly in the custody and interview of the accused. I find no breaches of the Judges Rules and am satisfied that the circumstances of the accused’s custody, which was admittedly long (41 hours in total) included plenty of time for rest and refreshment. I am satisfied that the interview and the charge statements were both given by the accused voluntarily without fear of threat or violence, and without hope of advantage. I am also satisfied beyond reasonable doubt that the circumstances in which the interview was taken were not oppressive and that no assault was inflicted on the accused at the Raiwaqa Police Station.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I found the prosecution witnesses to be consistnd credible, and I accept their account of events on the 25th, 26th and 27th of March 1998.1998. As to the Defence case I find material discrepancies in the evidence, and no consistent medical evidence confirming the injuries allegedly caused by the police on the accused.

The prosecution may lead evidence of caution and charge statem

&nbB>

Nazhat Shameem

JUDGE

At Suva

8th June 2001

Hac0006d.00s