Tawake v State [2002] FJHC 177; HAA0065J.2002S (25 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 065 OF 2002

Between:

ASESELA TAWAKE;

PENI MATAIRAVULA
Appellants

And:

THE STATE
Respondent

Hearing: 4th October 2002
Judgment: 25th October 2002

Counsel: Ms J. Nair for Appellants
Mr D. Prasad for State

JUDGMENT

The Appellants, who were the second and third accused at the trial respectively, have appealed against their convictions and sentences in the Magistrate’s Court, in respect of the following charges:

FIRST COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of Penal Code, Act 17.

Particulars of Offence

ISIRELI LAVETI, ASESELA TAWAKE, PENI MATAIRAVULA, TEVITA POESE and TUPOU VUETAKI on the 18th day of December, 2000 at Samabula in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use a private motor vehicle registration number CQ169 the property of THOMAS GALLOP.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

ISIRELI LAVETI, ASESELA TAWAKE, PENI MATAIRAVULA, TEVITA POESE and TUPOU VUETAKI on the 18th day of December, 2000 at Samabula in the Central Division, being armed with firearms robbed $69,344.56 cash, sixteen money bags valued $248.96, fourteen padlocks valued $308.00, three money boxes valued $195.00, one Morris Hedstrom price code book valued $0.50 and four exercise books valued $2.00, all to the total value of $70,099.02, the property of Morris Hedstrom Superfresh Supermarket.

Each Appellant elected Magistrate’s Court trial on 12th November 2001, and pleaded not guilty. The hearing commenced on 14th January 2002. Only the first accused (who is not an Appellant) was represented by counsel. The prosecution called 23 witnesses. At the close of the prosecution case, the Appellants chose to remain silent. The 1st Appellant called 2 witnesses and the 2nd Appellant called 1 witness. On 5th February 2002 the learned Magistrate convicted the Appellants on Counts 1 and 2 and sentenced them to 5 years and 6 months imprisonment each. The 1st and 4th Accused were acquitted on both counts. The 5th Accused was found not guilty on Count 1 but guilty of the lesser offence of Receiving Stolen Property. He was sentenced on 18th March 2002.

The 2nd and 3rd Accused now appeal against their convictions and sentences upon the following grounds:

1st Appellant

1. The trial Magistrate erred in failing to accept or consider the medical report of the Appellant which would have shown that his confession was obtained under duress;
   
2. The trial Magistrate erred in failing to properly consider how the confession was obtained;
   
3. The trial Magistrate erred in admitting the confession.
   

The 2nd Appellant

1. The trial Magistrate erred in rejecting the first interview statement, and accepting the second interview statement which was obtained by duress;
   
2. The trial Magistrate erred in failing to properly consider the medical report which the prosecution failed to tender;
   
3. The trial Magistrate erred in relying on the contents of the confession.
   

The facts

The evidence led at the trial was that on the 18th of December 2000, a group of five men unlawfully used a Pajero which they drove from Raiwaqa to the Superfresh Supermarket in Tamavua and violently robbed the Supermarket of $69,344.56 cash and other items using a rifle and a long screwdriver. The evidence was that the men were masked although the 6th prosecution witness, Apakuki Najoritani, an Army Officer, said that he could identify the 4th accused despite the presence of the mask because they were cousins. No one identified the Appellants. Two sugar sacks containing part of the stolen items were found in the ceiling of the 1st Accused’s flat, by the police. The 1st Accused’s defence was that his flat was frequented by many people, any of whom could have hidden the sacks in his house.

The interview statements of each accused were tendered. The 1st Appellant, made a complete confession to the crimes, saying that he was the driver, that he had driven the robbers to the Superfresh Supermarket, had waited outside, and then driven them away. He said he had been given more than $6000 of the stolen money.

The 2nd Appellant denied all the allegations in his first interview statement. In a subsequent statement he admitted travelling in the Pajero, being armed with the screwdriver and taking part in the robbery. Both Appellants produced alibi witnesses in their defence saying that the Appellants had been in Rewa and Kia Street, Raiwai respectively at the time of the robbery. Both confessions were admitted, and the Appellants convicted.

The Appeals

Both appeals focus on the same issue, that of the admission of the confessions. There is no doubt at all that there was no other evidence against the Appellants. In respect of the 1st Appellant, the evidence was that he was interviewed by PC 1397 Usaia Malo on 31st January 2001 at the Samabula Police Station. The statement was taken in the English language, in question and answer form. PC Malo said that the interview had been given voluntarily. Under cross-examination by the 1st Appellant, the officer said that he had picked him up from the Nabua Army Camp and that he did not know if the soldiers had used force on him at the Camp. He did not answer when the 1st Appellant asked him if he and 5 soldiers had taken the Appellant to the crime scene. He was shown the Appellant’s medical report but said that he had never seen it before. The medical report does not feature in the list of exhibits of the trial. However on 17th September 2001 the court ordered the prosecution to serve medical reports on the 1st and 2nd Appellants, and this order was complied with. In court, counsel for the Appellants confirmed that the 1st Appellant had received his medical report from the prosecutor. The report was not tendered by the prosecution. However, on 4th February 2002, the 1st Appellant summoned Dr Pita Vuniqumu a doctor at the Wainibokasi Hospital. He was shown the report but he said that he was not the author of that report, although he had admitted the 1st Appellant at the hospital for bronchitis on 27th January 2001. He said he was on duty at the hospital, when soldiers "stormed in with guns to apprehend Accused No. 2." He said he did not authorise the soldiers to take the Appellant out of the hospital and that his condition was such that he ought to have remained in hospital. He said the Appellant had no visible injuries when he was admitted. In his closing submissions, the 1st Appellant gave his medical report to the Court with written closing submissions. That report is in the court file but was not included in the court record. It is dated the 1st of February 2001 (the day the interview was concluded) and is signed by an unnamed doctor with the telephone number 215-545. The history related to the doctor by the 1st Appellant was that he had been assaulted by soldiers because he was a suspect in the MH’s robbery. The injuries found on him were as follows:

1. Dark contusions over right flank spanning 4cm x 6cm;
   
2. Multiple contusions all over back as marks/blocks;
   
3. C/o lower back tenderness - unable to stand up;
   
4. Left forearm swollen tender contused and slight abrasions;
   
5. Right forearm contused and slight abrasions;
   
6. Chest pain;
   
7. Multiple abrasions left shin;
   
8. Abrasions - right knee;
   
9. Abrasions lower lip.
   

The diagnosis was that the injuries were consistent with blunt injury. This medical report, purportedly obtained only 6 hours after the conclusion of the interview by the police, was obviously highly relevant to the question of the admissibility of the confession. However it was not tendered by the prosecution, and was apparently not accepted as an exhibit by the court although the 1st Appellant appears to have tried to tender it. Further, although Dr Vuniqumu gave evidence that the 1st Appellant was removed from the hospital by soldiers, no soldiers were called to give evidence about the reasons for the arrest, the nature of any detention or the conditions under which the Appellant was kept.

The learned Magistrate dealt with the confession in the following way:

"Accused No. 2 admitted the allegations against him, in his police caution interview. He said he was the get away driver, and was driving the stolen pajero. He drove the robbers to the scene, waited for them, and then drove them away to safety. He said he received more than $6000 as his share of the stolen money.

PW17, the police officer who caution interviewed Accused No. 2 said on oath that Accused No. 2 gave his statement voluntarily. He said no force or threat of violence, or any promise was done on Accused No. 2 during the interview. In the caution interview, Accused No. 2 confirmed .... Question 94 and Answer thereto. Accused No. 2 called 2 witnesses. His witness, Doctor Pita Tubua, said on oath that he didn’t see any injuries on Accused No. 2, when he admitted him on 27.1.01. He said he admitted him on asthma related diseases - not assaults. Accused No. 2's other witness (Matereti Waqa) said he was with him at Rewa at the material time. Waqa was brought in from prison to testify for Accused No. 2. In my view, I accept Accused No. 2's caution interview statement. I reject Matereti Waqa’s evidence. He was not a credible witness."

It is now well-established that the burden of proving voluntariness of a confession is on the prosecution, and that voluntariness must be proved beyond reasonable doubt (Shiu Charan -v- R Cr. App. 46/83). It is for this reason that the prosecution must take the trouble in all cases where the admissibility of confessions is challenged, to call all witnesses who can help to prove that the accused was not assaulted, threatened, induced to confess, oppressed or interviewed in breach of his/her Constitutional rights. It is for this reason also, that the trial court must direct itself that the prosecution must prove admissibility, and must consider all the relevant evidence which might affect admissibility. Any assault of any kind administered by or in the presence of, a person in authority, during or before the interview is likely to lead inevitably to non-admission, because assault must lead to a real doubt as to voluntariness.

In this case the learned Magistrate failed to direct himself on the burden of proof in relation to voluntariness, failed to consider the evidence of Dr Vuniqumu who said that five soldiers had taken a sick and hospitalised 1st Appellant from Wainibokasi Hospital by force, and failed to consider the fact that no soldier had been called to give evidence about the way the 1st Appellant had been treated whilst in the custody of the military forces. Further, when the 1st Appellant had made several attempts to tender his medical report (which was consistent with injuries caused by blunt force and which bears the same date as the caution interview) the learned Magistrate failed to ascertain the identity of the doctor who should have been called to give evidence, or to assist the 1st Appellant to summon him. The 1st Appellant at all times was unrepresented, and the learned Magistrate had a duty to ensure that the Appellant was not prejudiced by lack of representation. Clearly if he had had counsel, the doctor who had examined him on the 1st of February 2001 would have been traced and summoned. His evidence, on the basis of the report, which the Magistrate had in his file, would have been highly relevant because the report is capable of being consistent with the 1st Appellant’s claim that he was assaulted whilst in custody at the military camp. Lastly, having heard evidence of the injuries, the learned Magistrate would have had to consider the effect of any possible assault on the 1st Appellant by the military forces before the interview commenced with the police. This would include a discussion of the meaning of the words "persons in authority."

None of these issues were considered by the learned Magistrate. Therefore because the 1st Appellant’s convictions rest solely on the evidence of his alleged confession to the police, the convictions are unsafe and must be set aside.

I now turn to the 2nd Appellant. The 2nd Appellant made two statements to the police. The first commenced at 4.20pm on 7th January 2001, and was exculpatory. It was concluded at 6.16pm on the same day. The second interview commenced at 8.43am on the 9th of February 2001. In this interview, the 2nd Appellant admitted taking part in the robbery and admitted being armed with a long screwdriver.

The evidence of his interviews was given by PW21, DC 1896 Navitalai Visawaqa. He said that he interviewed the 2nd Appellant in English and that the interview was given voluntarily. The interview was conducted at Samabula Police Station on 7th January 2001. On 8th February he met the 2nd Appellant at the Army Camp. He was escorted to the Samabula Police Station where he complained of body pains and was taken to the CWM Hospital for medical examination. He was treated there and escorted back to the Police Station where he then made his second statement. DC Visawaqa said that the statement was given voluntarily. Under cross-examination (conducted on behalf of the 2nd Appellant by counsel for the 1st accused for that witness only) the Constable said that the 2nd Appellant had been released after his first interview "to the Fiji Military Forces by the police because of the discovery of a magazine containing 30 bullets on him." He was then taken for questioning by the military forces. The military then brought the 2nd Appellant back to the police station on 8th February for further interview. He said that the Appellant complained of body pains, and there was a medical report but that he had not gone back to the hospital to collect it. He said the Appellant complained of back pain "received from the Army Camp." Under re-examination, the officer said that no army officers had been present during the interview.

In his defence the 2nd Appellant raised an alibi. He said in his closing submissions that he was forced to give his confession to the police.

It is apparent that there was a medical report which was prepared by a doctor, which might have supported the 2nd Appellant’s defence, but which had never been collected by the police, or disclosed by the prosecution. The non-disclosure of this report, which was potentially relevant, coupled with the learned Magistrate’s failure to consider the 2nd Appellant’s claim of assault and failure to refer to the law on the admissibility of confessions including the burden and standard of proof, show that the 2nd Appellant was prejudiced in the conduct of his case.

In his judgment the learned Magistrate said:

"In the interview Accused No. 3 said he received $5000 as his share of the stolen property. He also admitted that no force or threat was done on him, during the interview - see Question 69 and his answer thereto. PW21 said no force or threat, or promise was done on Accused No. 3 during the interview. Accused No. 3 called Osea Namua, as his witness. Mr Namua said that Accused No. 3 was at home with him at Lot 71 Kia Street, Raiwai at the material time. In my view, I accept Accused No. 3's caution interview statement. I reject Osea Namua’s evidence. He was brought in from prison to give evidence. I find his evidence not credible."

The learned Magistrate failed to deal with the question of admissibility at all. He simply accepted the truth of the confessions. However the evidence before him was that the 2nd

Appellant had been held in army custody for a considerable length of time before his second interview, that he had complained of pain, that there was an undisclosed medical report, relevant to the case, and that no army officer had been called by the prosecution to give details of the detention, or to say that the detention had no bearing on the subsequent confession. These were matters relevant to the admissibility of the confession which were not considered at all. For these reasons I find that the convictions for the 2nd Appellant were unsafe and must be quashed.

Result

Both appeals against conviction are allowed. Convictions and sentences for both accused are quashed. As to re-trial, I take into account the seriousness of the offences, the fact that the Appellants have been in custody since August 2001 and the nature of the evidence against them. The confessions, if they are properly admitted after a hearing of all relevant evidence, do contain sufficient ground for a possible conviction. In all the circumstances I consider that the Appellants must be re-tried for these offences. The case is remitted to the Magistrate’s Court for re-trial. The appeals are allowed.

Nazhat Shameem
JUDGE

At Suva
25th October 2002