State v Roko [2001] FJHC 94; Hac0013d.2000s (27 November 2001)

Fiji Islands - The State v Roko - Pacific Law Materials

IN THE HIGH COURT OI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0013 OF 2000S

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> THE STATE

-v-

ORISI ROKO

1"> FILIMONI DRUA

WAISAKE NACORO

VERESI RORAKUITA

MELI RASILEKA

SEKOVE VAKOSIA

Counsel: Mr W. Kuruisaqila with Ms K. Bavou for State;

Ms B>Ms P. Narayan for 1st & 6th Accused;

Mr N. Vere for 2nd Accused;

Mr S. Valenitabua for 3rd Accused;

Mr A.K. Singh for 4th Accused;

Mr E. Veretawatini for 5th Accused.

Hearing: 14th - 26th November 2001

Ruling: 27th November 2001

RULING ON THE TRIAL WITHIN THE TRIAan>

&nbB>

All accused persons object to the admission of their interviews to the poln the 30th of April and the 1st of May 2000. The 5th and 6tnd 6th accused persons, object also to the admission in evidence of their charge statements. The grounds for their objections are as follows:

Accused 1: &n.sp;1sp&nbbsp&nnbsp&&nnbs&nnbsp; Bre; B of constitutional rnal right to a lawyer;

<1"> 2.  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nb/span>No reas reasons gins given for arrest;p clavel1 ="texgn: justify; text-indent: -73.65pt; margin-left: 180.0pt; mar; margin-tgin-top: 1op: 1; mar; margin-bottom: 1"> 3.  p; &nsp; &nbbsp; &nbbsp; Kpan>Kept in custody for two days for questioning;

N-GB>4. ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& h of conf constituttitutional right to inform his spouse.

Accused 2: & 1.  p&nbssp;nbsp; &nbp; ; Brpach of conttitutional onal right to be informed of reasons for arrest;

2.2. &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nBreach of Juof Judges Rules in particular No. 4;

&nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; Not giveice toce to right his own statement;

4. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp; Not sup lied mith meals.p claoNormyle="text-align: justify; margin-top: 1; margin-bottom: 1"> &nbs> 1"> Accused 3: &nnbsp;; Aspabov above for for Accused 1 and 2.

Accused 4: &nbssp; &nbbsp; ove fcve fcused 1sed 1 and and 2.

Accused 6: &nAsp; ov abor fcusec 1 an 1 and 2.

The grounds on which a confessional statement can be excluded from the evidence are either that they are not voly, or they were obtained uned unfairly and in breach of the rights given to persons in police custody under section 27 of the Constitution. In relation to voluntariness, breaches of the Judges Rules are relevant but do not determine what is voluntary. The real question under Principle (e) of the preamble to the Judges Rules, is whether the statement is 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.”

Oppression is something which “tends to sap and has sapped that fill which must exist before a confession is voluntary.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As to breaches of the Constitution, section 27(1) and (2) provide as follows:

“(1) Every person who is arrested or detained has the right:

(a) &nbbsp; &bsp;&nbp; &nbss;&nbbsp;&&nsp; &nsp; ti be med promptly ptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any chthat e bro

(b) &nnsp;&&nsp;;&nspp;&nssp; to be promptly released if not charged;

: 1"> &nGB>

>

(c) &nnsp;&&nsp;&nbp;;&nbpp;&nbp; to ct wulh a tegal egal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient meanengagegal itionerioner and and the ithe interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;

(d) &nnbsp;; &nbs;&nnbsp;&nbs; &nbs; &nbsspan>to ben iven the ophe opportunity to communicate with, and to be vi by:

ass=Mmal s"text-indent: 72.0pt; margin-top: 1; margin-bottom:ttom: 1"> 1">

(a) &nbbsp;& p;&bsp; &bsp; &&nbp;;&bsp; &nb/p; his or her sper spouse, partner or next-of-kin; and

(b)(b) &nbssp; &nsp; &nbbp;&nnbsp;

ass=Level1 stylestyle="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (e)  p;&nssp; &nbp; &nbs; to cngelehe ltwfulnwfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

&-GB> nbsp;

(f) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;& to be treated with with humanity and with respect for his or her inherent dignispan>p claoNormyle="aligntify; margin-top: 1; margin-bottom: 1"> &nbs>

(2)&nbbsp; &nbsp &nbbp;&nnbp;& &nbbsp; Tpan>The aute authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.”

A failure to comply with section 27 will result in the exclusion of evidence obtained itody unless the court is of the view that it would be fair fair and just to include such evidence. In R -v- Goodwin (1993) 2 NZLR 153, the accused was kept at a police station for questioning in relation to the death of his baby daughter. He was later convicted of her manslaughter. On appeal, it was argued that the trial judge had wrongly admitted his statements to the police. The Court of Appeal held that for the purposes of section 23 of the Bill of Rights Act, the appellant was under arrest when he was being questioned because he was not free to go as he pleased. The appellant was therefore entitled to the rights under section 23 of the Act. On the question of the effect of breaches of the Bill of Rights, the Court of Appeal said exclusion of the confession did not automatically follow. At p.171, (per Cooke P) the Court said:

“New Zealand cases have already yielded a number of examples of good reasons for departing from the facie exclusion rule. They They include or may include waiver of rights by the person affected; inconsequentiality, in the sense that the court can be satisfied that the admission would have been made without a breach; reasonably apprehended physical danger to the law enforcement officer or other persons; other reasons for urgency such as the risk of destruction of evidence; and the triviality of the breach if it is only a marginal departure from the individual’s rights.”

In that case the confession was held to be wrongly admitted because of the breach of section 23 and because the quning had taken the form of m of “sharp cross-examination” of the appellant. In R -v- Kirifi [1991] NZCA 111; (1992) 2 NZLR 8, an accused person had been apprehended and handcuffed to a fence before he was interviewed by the police. He was not told that he was entitled to have a lawyer present until the interview was almost over and he had already made admissions. The trial judge excluded the admissions on the ground that there had been a breach of the Bill of Rights in relation to the right to counsel.

The Court of Appeal said that he was right. The Court said that thtion 23 right to counsel which applied to all persons “arrested or detained” was not limiteimited to persons who had been formally arrested. It covered a situation where a suspect was, in effect, in police custody, although he had not been formally arrested. There was a breach of the right to consult a lawyer, and the admissions were properly excluded. The Court said at page 12:

“It seems to us that, once a breach of section 23(1)(b) has bstablished, the trial Judge acts rightly in ruling out a co a consequent admission unless there are circumstances in a particular case satisfying him or her that it is fair and right to allow an admission into evidence.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In R -v- Mallinson [1992] NZCA 163; (1993) 1 NZLR 528 (referred to with approval by the Chief Justice in Mul Cha> Labasa High Court Cast Case November 1999) the New Zealand Court of Appeal held that the onus was on the prosecution to show firstly that the suspect had been told of his right to consult a lawyer before questioning began, and secondly that the suspect understood the substance of the right and that the exercise of the right would have been implemented if he chose to exercise it. However evidence that the right had been advised, normally led to an inference that the suspect understood the nature of the right.

In that sense Mallinson was not told of this right until an hour after hrest, but before he was interviewed. His interview was excluded, and the jury directed to a to acquit. On a case stated to the Court of Appeal decided that the right to consult a lawyer, and the right to be informed of that right, arose on arrest, and the right must be communicated immediately after arrest and before “the legitimate interests of the person who is arrested are jeopardised.” The police have a duty to inform the suspect of this right but no particular formula is required as long as the suspect knows he may exercise the right before questioning begins.

The Court of Appeal held that where he had been told of the right to a lawyer before questioning began, the proper inference should have been that he understood that the rights were exercisable immediately and before questioning began. Thus the trial judge should not have excluded the statements, and a new trial was ordered.

In R -v- Butcher [1991] NZCA 135; (1992) 2 NZLR 257, Cooke P said at p.266:

“As indicated in Kirifi, there may be circumstances in a particular case where, despite some degree of transgression of the rights, it is fair and right to admit a confession in evidence ..... Prima facie however, a violation of the rights should result in the ruling out of evidence obtained thereby. The prosecution should bear the onus of satisfying the Court that there is good reason for admitting the evidence despite the violation.”

In the very recent case of Sudesh Jeet -v- The State Crim. App. No. AAU0036 of 1999S, the Court of Appeal held that where the appellant had been held in police custody for almost 3 days, before he confessed to an offence of murder, the circumstances were oppressive and in breach of section 27(1)(b) of the Constitution which gives a detained person the right to be promptly released if not charged. The Court concluded that the caution and charge statements were “obtained unfairly and in oppressive circumstances” and ought to have been excluded.

In Siga Lesumailau & Sikeli Tamani -v- The S/u> Crim. App. No. AAU0023 of 2000S, the appellant was in police custody for interview view for 26 hours. His confession was included in evidence after a trial within a trial. His decision was upheld on appeal by the Court of Appeal.

In summary therefore the principles governing exclusion require the asking of the following questi/span>

1. ; Was the intw/vierge atatemtatement given volu voluntarily?

n lanGB>&n/span

2.  p; &nsp; Was it given iressive or u or unfair circumstances?

3. &nnbsp;;&bspp; bss thare a re a breach of the rights under section 27 of the Constitution?

&nbsp

4. &nbssp;&nnsp;&&nsp; esp; ere was a constitutibnal bral breach, is there anything in the evidence to show that the prima facie exclusion rule should not apply?n>

In considering all these questions, the onus is on the prosecution to prove voluntariness, lacoppression, no breach of section 27 of the Constitution andn and, if there has been a breach, to show that the breach was inconsequential and did not result in unfairness or oppression.

I now turn to the individual statements.

The 1st Accused Orisi Roko

The 1st Accused was interviewed by Constable 497 Lole who commenced the interview at 10am on 1st of 000. His own evidence is this that he had been taken into police custody on the 30th of April 2000, at sometime after 11am. He had been locked in the Nasinu Police Station cell until his interview at 10am the next day. There is no dispute that he was in custody.

After he was cautioned DC Lole said:

span>

“You are also advised that you have the right if you want a lawyer if you are able to pay the mor to phone him if you want want to. Do you understand?”

The Accused answered “Yes.” He was then asked if he understood that he could get a lawyer and he answered - “yes.” The record then reads:

“Q: &nbssp; Dsp; Do you want a lawyera

ass=Level1 style="text-indent: 0cm; margin-left: 36.0pt; mat; margin-top: 1; margin-bottom: 1"> A: &nbs;&nnbp;&nbs;&&nsp;&nbsp &nnsp;&&nsp;;&nspp; span>No.”

He was charged by DC 1828 Seru from 10pm to 10.40pm. Henot told again of his right to a lawyer, or to see a relative but he was told that he did ndid not have to say anything unless he wished to do so. He made an inculpatory statement saying that he had held the old man, slapped him twice around the waist and was holding him when he suddenly fell to the ground.

The evidence of DC Lole was that the 1st accused was under arrest and in detention when he interviewed him. The evidence of DC Seremaia Temo, was that he had brought the 1st accused in under arrest at 1.15pm and read an entry from the cell book to confirm this. In fact there is no written record of the arrest but I accept DC Seremaia’s evidence in this regard. I find therefore that the 1st accused was under arrest when he was brought to the station. There is no evidence that he was told of the reasons for his arrest.

There is evidence from the accused himself that he was locked in the cell with three others for urs before his interview in what were undoubtedly uncomfortmfortable circumstances. No evidence was led by the prosecution to show that meals were provided during this detention. However the interview record shows that he was fed during the interview.

I also find as a matter of fact that the 1st accused was told of his right to consulawyer before commencing the interview, and that he understoerstood the right, and waived it. He said in his sworn evidence that he did not want a lawyer, and that he was told that he could have one if he wished. On this basis I do not think that there was a breach of the section 21(1)(c) right to counsel.

As to counsel’s submission that the police should have told the accused about the Legal Aid Scheme, she herself agreed that in May 2000, there was no Legal Aid Scheme which provided the services of a lawyer free of charge to all indigent persons in police custody. It appears that no such scheme is in existence even today.

The Supreme Court of Canada in R -vsper (1994) 3 S.C.R. 236 said of a similar provision in the Canadian Charter of Rigf Rights and Freedoms:

“Section 10(b) of the Charter does not impose a substantive constitutionaigation on governments to ensure that duty counsel is availavailable, or likewise, provide detainees with a guaranteed right to free and immediate preliminary legal advice upon request. However in jurisdictions where a duty counsel service does exist but is unavailable at the precise time of detention, s.10(b) does impose an obligation on state authorities to hold off from eliciting evidence from a detainee, provided that the detainee asserts his or her right to counsel, and is reasonably diligent in exercising it.”

There was no legal aid scheme providing counsel at police stations, an accused said he did not want a lawyer. There was therefore no breach of section 27(1)(c).<(c).

The accused also said he did not understand the caution when it was read to him in Fijian and did not realise th had a right to remain sile silent. However in cross-examination he agreed that he understood the Fijian caution. He further said in examination-in-chief that the interview was never read back to him but under cross-examination he agreed that the interview was a record of the questions asked and answers given at the station.

I accept the evidence of DC Lole that the interview was read back to the accused. I also accept that the accused knew he had the right to remain silent and chose to make a statement.

The only remaining question is whether the 22 hour detention prior to the interview rendered the circumstances oppressive. In Sudesh Jeet -v- The State (supra) a 67 hour custody period from arrest to conclusion of the interview was held to be a breach of the right to be promptly released. In that case the appellant had been “detained for questioning.”

However in the recent case of Siga Lesumailau & Sikeli Tamani -v- The State (supra) the Cou Appeal upheld a trial judg judge’s decision to include a confession made during 27 hours in custody.

Much therefore depends on the facts of each case, and the circumstances of the detention. In this case theecution led no evidence of e of meals during the detention but DC Lole’s evidence (which I accept) was that the accused only wanted 5 minutes for his lunch. That does not suggest that he was starving at the time. Further meals were provided during the interview period for all accused, and sufficient breaks provided. Nor do I think that the length and circumstances of the detention were such as to sap his free will or to create an oppressive situation. This is particularly so because my assessment of the 1st accused when he gave evidence, was that he is not an especially vulnerable person, who was likely to be intimidated by the police station and the police officers there. Indeed it was never suggested by him that the police threatened him, or intimidated him in any way. I find that the interview itself was conducted fairly and that he understood that he was not obliged to say anything.

In all the circumstances, I find that the arrest and detention of the accuse not result in the unfair or oppressive questioning of his his by the police. I find that the breach of the Constitution in regard to the 22 hour detention before questioning to be inconsequential given the very fair mode of questioning adopted by the police and the long break during the interview from approximately 2pm to 5pm. Further although he should have been told of his right to counsel at the time of detention or soon after he was apprehended, I find that he did not want one anyway and that the provision of this right would have made no difference to the provision of his statement.

I also find that any breaches of the Judges Rules, in particular in relation to the failure to have a witnessing officer, ae failure to record time ofme of conclusion, were technical breaches which did not render the interview involuntary, oppressive or unfair. I am satisfied of these matters beyond reasonable doubt.

The evidence of the caution interview may be led in evidence.

As to the charge statement, the 1st accused was not told (again) of his right to a lawyer. However he said in sworn evidence that he did not want a lawyer, and it is unlikely that the position would have been different for the taking of the charge statement. I find that he understood the caution, and that the statement he gave was voluntary and admissible.

The 2nd Accused Filimone Drua

&nbspan>

The 2nd Accused was arrested at about 1pm on the 30th of April 2000 by DC Seremaia Temo. Dc Temo said that he arrested the 2nd Accused on suspicion of causing the death of Jioji Qilai. He was brought to Nasinu Police Station and locked in the cell at 1.18pm. He had some injuries on him which were recorded in the cell book. They were swelling on the right elbow, a cut on the upper lip and a cut on top of his nose. He remained in the cell overnight and his interview commenced at 10am the next day. He had been in custody for some 10 hours.

He was interviewed by DC 1173 Jemesa who cautioned him and who asked him if he wished te a friend, a relative or a lawyer to be present. He said: aid: “This is enough.”

At 10.45am the 2nd Accused was taken to hospital because he wanted to be medically examined. The interview proper commenced at0pm.

In the interview he admitted deciding with others, to go and see the p who had stabbed his relative in the eye. He denied assaulting Jioji Qilai in any way and oand only admitted that he was present when the assault took place and that he had “held the old man up.” In relation to the assault on the deceased, the interview is entirely exculpatory.

The interview was suspended on several occasions, includie break to allow the accused to smoke and other for the identification parade.

Although at the commencement of the trial within a trial, the 2nd Accused’s counsel alleged breaches of the Judges Rules, brof the constitutional rightright to be told of the reasons for arrest and oppressive custody, the 2nd Accused in his sworn testimony raised new grounds including physical force at the time of arrest. He also said that he was forced and intimidated by three police officers during the interview, to make a statement. Because these were new matters, I allowed State Counsel to recall the arresting officer DC Seremaia.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Having heard his evidence, and the evidence of mesa, I am satisfied beyond reasonable doubt that the 2nd accused was not assaulted, forcedorced or intimidated into making a statement.

I am further satisfied beyond reasonable doubt that he was lawfully arr and that he was told the reasons for his arrest by DC Seremaia.

I am satisfied that there was no breach of section 27(1)(c) of the Constitution in that he was told he had a right to a lawyer and waived that right. As to the length and circumstances of his detention, I find that they were not oppressive and do not render this interview inadmissible. This is particularly so in the light of his own concession under cross-examination that the police treated him well, that he was taken to a doctor on request and given cigarettes and food. Finally I give particular weight to the fact that the accused made no significant or damaging admissions as to the death of Jioji Qilai.

For these reasons the caution interview is admissible.

As to the charge statement, the 2nd accused was explained his right to remain silent, and his right to a lawyer. He said he understood the first, and waived the second saying: “We will find one later.” He then made a statement saying he was in the fight but did not hit the deceased.

I am satisfied beyond reasonable doubt that he made this statementntarily, and that there was no breach of the Constitution in the obtaining of this statementement. It may be admitted in evidence.

The 3rd Accused Waisake Nacoro

The 3rd Accused said that he was taken from his home by the police at about 11am on the 30th of April 2000. He wcked in the cell at Nasinu sinu Police Station at 1130am, with 3 others.

His interview commenced the next morning at 10am. The interviewing officer was DC Sanaila Vanini. He was cautioned in the following terspan>

“You are not obliged to say anything unless you wish too but what you say will be put into writing and given in evin evidence.”

It was interpreted to him in the Fijian language. He was then told:

“You are now given your rights to look for a lawyer of your own choice and if you can not pay for one youalso given the right to seeo seek advice from a Legal Aid Scheme and all this will be done here through telephone. Is that clear?”

His answer was “yes.” He was then asked if he understood this right, and whete wanted to contact his lawyer. The answer was “No.”span>

In his interview the accused said that he and his friends had planned to go to Kilikali Settlement to visit Simeli’s father Sekove. Simeli’s eye had been stabbed previously. He said that they agreed to go and question the family involved. He said that he did punch people during the fight but denied ever punching Jioji Qilai. He said that he had merely punched the door to his house.

At the end of the interview according to the record he read the interview himself and said he did not to add, correct or alter anything. He said he gave the stae statement voluntarily.

The interview was concluded at 10.20pm. There was a 15 minute suspension at 11.45am for the accused to have a glass of water a 45 minute suspension at n at 1.15pm for lunch. At 2.10pm there was a 5 minute break to show him a digging fork, and a break from 2.20pm to 6.30pm for the identification parade. At 7pm the interview was suspended for ½ an hour for dinner.

The grounds for objecting to the admissibility of this interview are that his detention was unl and oppressive, and that the statements were obtained unfa unfairly and by oppression.

There is no evidence led by the prosecution that the accused was arrested at any time, or told of the reasons for his deon. The Station Diary showeshowed that he was brought into the station with the 5th Accused and two other persons by one PC Rafael.

Further, no evidence was led by the prosecution to show the court that he wa during his time in detention. The evidence is however, tha, that he was given lunch and dinner the next day.

In failing to tell the accused that he was under arrest, and why he was detained, there was undoub a breach of section 27 of the Constitution. Indeed the rige rights given to persons under that section apply whether or not there has been a formal arrest, as long as there is a detention.

However, the record of the interview itself shows that the interview was conducted fairly with lengthy breaks and adequate meals. Although the interview was not completed until 8.20pm, there was a long 4 hour break for the identification parade. I accept the evidence of DC Sanaila that the interview was given voluntarily and without force or pressure. Indeed it is not suggested by the accused that he was assaulted or intimidated in any way.

In his sworn evidence the 3rd accused said he did not understand the caution. However in cross-examination he agreed, when the Fijian caution was read to him that he knew that it meant that he was not forced to say anything. In the circumstances I accept that he was told of his right to remain silent, and that he understood the substance of that right.

The remaining question is therefore whether the long detention from the day before, and his uncontradicted evidence that he was not given food the day before his interview was evidence of oppression which led to an unfairly obtained interview.

Although the police conduct in the treatment of suspects, four to a cell and without adequate bedding is repreble and might well be consiconsidered oppressive for a more vulnerable person than the accused, I do not consider it to be grounds for excluding the confession in this case. The accused is a young 27 year old “bouncer”, who struck me as self-possessed and resilient person. Further, in his interview he continued to deny that he had assaulted Jioji Qilai in any way, despite some fairly dogged questioning, and the identification parade. I consider that the accused would have made this statement anyway, even if there was no detention.

For these reasons I do not consider that the breach of onstitution in relation to the rights of detained persons, to be breaches which led to unfa unfairness or oppression. I am satisfied of this beyond reasonable doubt. His interview may be led in evidence.

As to his charge statement, I am similarly satisfied beyond reasonable doubt that he understood the caution and gave his statement varily. It is similarly excu exculpatory.

The 4th Accused Veresi Rorakuita

The 4th Accused said he was arrested at his home on the 30th of April 20e said he was not given reasons for the arrest. According to DC Seremaia Temo he arrested tted the 4th Accused and brought him to the Nasinu Police Station at 1.15pm. He was kept in the cell until his interview by Sgt. 1141 Apakuki at 10.25am the next day.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> According to the record of the interview, he was cautioned and told as follows:n>

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Q: I wish to inform you of your right to have a lawyer toresent to advise you or you may contact him by phone. Do yoDo you understand that?

A: Yes. My brother Sekove Vakosia has gone to find a lawyer for us.”

The interview was then suspended at 10.51am to contact the lawyer by phone. It resumed at 11.3after he was told that his brother Sekove Vakosia was out tout to Suva.”

The interview then commenced. The accused was not asked if he agreed to have his interview taken without contacting his lawyer. The intw continued until 8pm when when it was read over to him. There was a 17 minute break at 1145am for water, a break for 10 minutes at 1220pm for the toilet, a break for lunch at 1.10pm until 1.45pm. At 2pm, according to the record, he talked to his wife Lavenia for 15 minutes, and at 2.30pm there was another break for checking alibi and witnesses, followed by a break until 8pm after the identification parade.

In the interview the accused denied assaulting Jioji in any way, only admitting taking part in a fight with other youths. In respect of the chae charge of murder, the interview is exculpatory.

The grounds for objection are breaches of section 27 of the Constit, in particular a breach of the right to counsel on detention, a breach of the right to be o be told of the reasons for arrest and unfairness.

Having heard the evidence of Sgt. Apakuki, and of the accused andwife Lavenia, I am not satisfied that the accused was told of the reasons for his arrest. Nst. Nor was he assumed to have waived his right to contact a lawyer. The Sgt. should have asked him that since his lawyer and Sekove could not be contacted, whether he consented to be questioned in the absence of a lawyer.

In R -v- Brydges Supreme Court of Canada 1990 CanLII 123 (SCC); (1990) 1 SCR 190, 202-204, approved the following passage from an earlier ion of the court in C>Clarkson:

“.... it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused’s awareness of the consequences of what he or she is saying is crucial. Indeed this court stated with respect to the waiver of statutory procedural guarantees in Korpenay -v- A-G of Canada (1982) 1 SCR 41, at p.49, that any waiver “.... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.” (Emphasis in original)

There was no clear and unequivocal waiver of the right to spo a lawyer in this case especially when the 4th Accused had expressed a wish to contact a lt a lawyer. If the accused had made any admissions in his interview, I would have had no hesitation in excluding them. However the statement is exculpatory and I am certain that he would have made it anyway with or without a lawyer. Indeed counsel for the accused conceded this in submissions. This was the ground for inclusion in R -v- Harper (1994) 3 SCR 343, and one of the grounds for inclusion by the Chief Justice in Mul Chand (supra).

Further I do not believe the accused’s wife when she said that she was not permitted to see her husband, and I accept Sgt. Apakuki’s evidence and his record of their meeting. I am further satisfied beyond reasonable doubt that the interview was otherwise conducted in a fair way.

The interview record may be led in evidence. There is no objectionhe admissibility of the charge statement.

The 5th Accused Meli Rasileka

The 5th Accused, according to his own evidence, was brought to the NaPolice Station at about 11.30am on 30th April 2000. He was locked in the cell until 10am tham the next day, when he was interviewed by DC Seremaia Temo. He was cautioned in Fijian and he said he understood it. He was advised of his right to consult a lawyer in the following terms:

“Q.5 I wish to advise you that yoe the right to consult a lawyer of your choice and if you cannot afford one you can consultnsult a lawyer in the Legal Aid Scheme. Consultation can take place here and also by telephone. Do you understand?

A: I wish for Malakai Colabenu to be present.”

The interview was then suspended to look for Malakai Colabenu at 10.30am. However it recommenced at 10.40am after the accwas told that Malakai ColabColabenu could not be present as he was also a suspect and would be interviewed under caution. The evidence indicates that Malakai Colabenu was at home and could have been brought to the station. The prosecution has not contradicted the suggestion that Malakai was never a suspect. The interview then proceeded until 7.56pm with a break at 1255pm for lunch. It resumed at 1.20pm but was suspended 5 minutes later for a rest and the identification parade. He was served dinner at 6.40pm and the interview recommenced at 7pm. At Q61, he was asked, “I have been told that during the identification parade a man whose name was Samisoni Rabonu, he pointed you out as one of those who punched Joji Qilai on 30/4/2000 between 6.00am - 7.00am. What can you say here?”

The accused, who up till this point had denied punching Jiojii, then admitted that he did punch him with the 2nd, 3rd, 4th and 6th accused. He said he p he punched him twice on the chest.

The State concedes that Q61 was asked in error and that Samisoni Rabonu did not ify the 5th accused at all.

If that is so, then the question was grossly misng. Further, it is the question which appears to have persuaded the accused to suddenly maky make damaging admissions in relation to the Murder count. I consider that these admissions were obtained by a false representation and therefore unfairly. The prosecution may not lead Q61 to 72 in evidence on the ground of unfairness.

As to the other breaches of the Constitution, in relation to his arrest and detention, I am satisfied beyond reasonable doubt that the pfacie exclusion rule shouldhould not apply in relation to the rest of the interview. Although the accused was at pains to tell the court repeatedly that he had never faced the police before, and had only recently come to Suva from the village, I found him to be afar from unsophisticated villager. He was confident and emphatic in his evidence, and his job as a security officer at the Kings Nightclub no doubt required a degree of resilience. Further, I do not think that the absence of Malakai Colabenu, resulted in unfairness to him. Although the evidence of Malakai’s mother was that Malakai was available that day, his presence at the interview would not have made much difference because the substance of the statement is exculpatory. As to the accused’s evidence of intimidation, this was never put to DC Seremaia whose evidence that the statement was voluntary, I accept.

The statement may be led in evidence excluding Q61 to Q72.

As to the charge statement, because the misrepresentation in the caution statement led to the accused’s confession, Ilarly am not satisfied beyo beyond reasonable doubt that the accused was not of the erroneous view that he might as well confess because the “game was up” after the identification parade. The charge statement is excluded.

The 6th Accused Sekove Vakosia

The 6th Accused was brought to the Nasinu Police Station on the 1st of May. It appears that he was interviewed in the conference where he first drank grog grog with the police officers. He was interviewed by Sgt. 1141 Apakuki who cautioned him and told him that he had the right to consult his solicitor. He said he understood this right.

The interview proceeded from 10.48pm without any breaks, although the accused made a phone call at 11.15pm to the Kings Hotelhis interview, he confessedessed to punching Jioji Qilai once on the stomach after which he fought with some other youths from Lau.

In his sworn evidence the 6th Accused said that Sgt. Apakuki appeared to be doped and that he asked the accused to sign the interview wiew without reading it to him.

He said that he was told that he had a right to a lawyer but that he didn’t know any lawyer whom he could contact. Undoss-examination he agreed teed that the police put no pressure on him, that he signed the interview and that it is an accurate record of the interview.

In the circumstances given his sworn evidence, I am sati beyond reasonable doubt that the accused gave his statement voluntarily and that any breacbreaches of the Judges Rules and of the Constitution were inconsequential in that the accused would have made the statements he did anyway. Indeed the atmosphere during interview appears to have been amicable and relaxed.

The 6th Accused’s interview may be led in evidence. The charge statement is not challenged and may be led in evidence.

Summary

&nbspan>

In summary all caution and charge statements may be led in evidence except for the latter part of the 5th Accused’s caution statement and the whole of his charge statement which is excluded on the ground that it was obtained unfairly.

Nazhat Shameem

JUDGE

At Suva

27th November 2001

Hac0013d.00s