State v Matacagi [2003] FJHC 166; HAC0011D.2002S (1 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL CASE NO. HAC0011.2002

BETWEEN:

STATE

-v-

ABARAMA MATACAGI

For State: Ms. Prasad
For Accused: Ms. Chan

RULING ON TRIAL WITHIN A TRIAL

The defence objects to the admissibility of a caution statement and charge statement the prosecution seeks to tender. The statements which the prosecution says were made under caution to the police on the 10th and 11th of April 2000, contain a confession to the attack on the victim in this case.

The defence objects to its admissibility on the following grounds:

1. Assault on the accused by police.
2. Threat made to the accused by police.
3. Failure of the police to explain to the accused his rights to counsel.
4. Oppressive conduct by police, in particular denial of water, food and medication.
5. Generally unfair and oppressive conduct.
6. Breaches of the Judges’ Rules
   

The legal test

The test for admissibility of all confessional statements made to the police, is whether they were made freely and not as a result of threats, assaults, or inducements made to the accused by a person or persons in authority. Further, oppression or unfairness also lead to the exclusion of confessions. Finally, where the rights of suspects under Section 27 of the Constitution have been breached, this will lead to exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.

The preamble to the Judges Rules states as follows:

“That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been 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.”

In Ganga Ram and Shiu Charan v Reg 1983, the Fiji Court of Appeal outlined the two grounds for the exclusion of confessions at p.8:

“It will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the Crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as “the flattery of hope or the tyranny of fear.” Ibrahim v R (1914) ac 599; DPP v Ping Lin (1976) AC 574.

Secondly, even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sanag [1979] UKHL 3; (1980) AC 402, 436 @ C-E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account.”

Further, the rights of suspects who are arrested or detained, are protected by section 27 of the Constitution. These rights include the right to be informed “promptly in a language that he or she understands that he or she has the right to refrain from making a statement.” [Section 27 (3)]. A breach of the Constitution may also be a ground for excluding admissions.

The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution and (if there is non-compliance) lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt.

The facts

The evidence of the prosecution witness PW1 Cpl. Ramesio Raikoso and Sgt. Sekove, was that the accused was arrested at his home at 1.20pm on the 10th of April 2000. He was taken to the Navua Police Station. He was in custody at all times after 1.20pm on the 10th. The interview commenced with verbal questioning. The accused denied the allegations of knowledge about the death of Kamlesh Chand.

The formal interview commenced at the Navua Police Station Crime Officer at 3.15pm. It was conducted in the Fijian language by Cpl. Ramesio and witnessed by Sgt. Sekove.

At 6.00pm the interview was suspended for cigarettes and water and resumed at 6.30pm. At 7.00pm it was again suspended for dinner, rest and cigarettes. It was resumed at 7.30pm and continued until 10.00pm when it was suspended until midday on the 11th of April. Overnight the accused was taken to the Central Police Station to be locked in a cell there, apparently because his alleged accomplice was in the cell at Navua and the police did not want the two to speak to each other.

Early the next morning, a search was conducted of the accused’s house in Wainadoi. According to Cpl. Ramesio, the accused voluntarily gave some items to the police (including a $10 note allegedly stolen from the victim) so there was no need to execute the search warrant.

The interview resumed at 12 midday and continued until 1.00pm when lunch was served to the accused. The interview resumed at 2.00pm and continued until 3.35pm when there was a reconstruction of the scene. This reconstruction took about 40 minutes. The interview resumed at 5.50pm and was suspended at 7.00pm for dinner. It resumed at 8.05pm and concluded at 8.45pm. The accused, according to Cpl. Ramesio and the interview record, did not want to read the record saying that it had been explained to him. He was then handed over to Sgt. Naidu for charging. He was charged by PC. Tuwaci Tasoqosoqo and witnessed by Cpl. Luke Ravula. The charge commenced at 2225 hours. After charge he was locked up in the police cell. He remained in police custody until he was taken to the Suva Magistrates Court at 9:00am on the 12th of April. This evidence was substantially supported by the witnessing officer, Sgt. Sekove, and by the charging officer Police Constable Tuwaci. Other police officers gave evidence of a medical examination of the accused person on the 11th of April (after he was interviewed) and of the circumstances of his detention. Dr. Devi Dasi gave evidence of the general procedures for medical examination at the Navua Hospital, and tendered the medical report of her colleague, Dr. Samuela who is currently studying abroad.

The evidence according to the police witnesses was that the accused gave his statement voluntarily, and he was fed meals, allowed to drink water (although it was conceded that this was not recorded) and to visit the toilet. The police witnesses denied any knowledge that the accused suffered from epilepsy. Indeed, the medical report of the accused, dated 11th April 2000, is silent on epilepsy. The accused does not appear to have told the doctor that he was an epileptic and the doctor saw no signs of such an illness.

The accused gave evidence on oath. He said that he was arrested by the police at 1:20pm and that the interview record and charge statement are fabricated by the police because he never made a confessional statement to them. He went through the statement and identified those answers which he did give. Those answers were the exculpatory parts of the record.

He further said that he was never told of his right to silence, of his right to counsel of his right to make his own statement and to write it himself, and of his right to read his statement. He said he never read it, that it was not read to him and that the first time he had learnt of the contents was in the course of this trial. Finally he said that the police had forced him to sign the caution statement by holding him by his collar and yanking it against his jaw, and by speaking harshly to him. He also gave evidence of fainting fits and said that he remembered nothing of the visit to Navua Hospital because he had suffered a memory lapse at the time. Under cross-examination, the accused said that the particulars he denied in the statements were not incriminatory and that (contrary to his evidence–in-chief) he had been fit and healthy on the 10th and 11th of April. He agreed that he had not complained of police misconduct to anyone other than his counsel in the Magistrate’s court.

Oppression

There is not doubt at all, that a suspect in custody who is deprived over two days of food, water and the toilet, is oppressed and unfairly treated. Any statement given by him in those circumstances would be rendered inadmissible.

However, in this case, I accept the evidence of Sgt. Sekove and Detective Corporal Ramesio that the accused was served meals, and given water. I also accept their evidence that he visited toilet during the breaks. Although it is good police practice to record drinks and visits to the toilet, and although that practice, was not followed in this case, I accept that he was not deprived of these necessities whilst in custody. The accused in his evidence agreed that he did not tell his fellow soccer-team mate Detective Corporal Temesio of the fact that he had been deprived of food and water since 1:20pm on the 10th of April. His reticence, by 9:30pm on the 11th of April, when he must have been (according to his version of the facts) very hungry and thirsty indeed, is difficult to accept.

I am satisfied beyond reasonable doubt, that he was not so deprived. As to the hours of questioning, I find that they were not oppressive in themselves. There were breaks for meals, a long break overnight (and for half a day) between the 10th and the 11th and the interview itself is not oppressively long. The charge statement is very brief. I deal with the question of interrogating suspects in custody below in this judgment.

I am satisfied beyond reasonable doubt that the statements were not obtained by oppression.

Breaches of Judges Rules

The police officers who gave evidence accepted that there had been some breaches of the Judges Rules. In particular, under Rule IV, the accused was not told that he could record his own statement. Further, when the accused opted not to read over his own statement, the senior officer, Sgt. Sekove ought to have read it to him and told him he had the right to add, alter or correct it. This was not done. Instead the record reads:

“Q136: The statement that you have given to me, did you give it on your own free will and are all true?

A: Yes.

Q137: Did anyone punch you or make future promise to you or forced you or assault you to enable you to give the statement, you already given?

A: Never.

Q138: Do you want to read back your statement?

A: It is enough, it had been explained to me.

Q139: Do you wish to sign your statement?

A: Yes.”

Thus although the exact procedure under Rule IV of the Judges Rules was not followed, its spirit was reflected in the series of questions set out above. In particular, the answer to Q138 shows that the interviewing officer explained the contents of the statement to the accused before he signed it.

In relation to the change statement there was some inconsistency in the evidence of the two charging officers as to who provided the words in the certificate – “I am Abarama Matacagi. I wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence.” However the witnessing officer, Cpl. Luke agreed that this certificate (obviously reproduced from Rule IV of the Judges Rules), was written by Police Constable Tuwaci, the charging officer and read to the accused, whereupon he understood and signed the certificate. Rule IV (a) requires the police officer to write the certificate and to invite the suspect to sign it. In following this procedure, the charging officers acted in conformity with the Judges Rules. Rule IV (a), (b), (c) and (d) apply to procedures to be followed when the suspect elects to make his own statement. If a police officer is questioning a suspect, then Rule II applies to the recording of the statement.

The Judges Rules which came into effect in England and Wales in 1912, with a revised version in 1964, had two appendices. Appendix B contained administrative directions on interrogation and the taking of statements. These directions were that statements of suspects should be written on forms provided for that purpose, that records should be kept on intervals or refreshments and of times and places of the taking of the statement. Records should be countersigned by witnessing officers and special rules apply to children and the handicapped.

This appendix does not appear in the schedule to our High Court Act. However, the Appendix does provide us with an insight as to the scope of Rule IV. Clearly Rule IV does not apply to police interrogation under Rule II. It applies only to a situation where a suspect elects to make his own statement.

That was not the scenario in this case. The accused commenced his interview making no admissions in relation to the allegation. In the circumstances the police had a duty to question him in accordance with Rule I. Provided the suspect was cautioned (and the police officers said that he was) the questioning was unobjectionable in the circumstances.

Further, the record shows (and I accept it as being an accurate record of what transpired) that the suspect was cautioned after breaks and reminded of his rights. In my view, the Judges Rules were followed in the main. Where there were breaches (for instance the failure to give the suspect the right to make his own statement) they were technical and had no effect on the voluntariness of the statements.

Breaches of Section 27 of the Constitution

Counsel submitted that the suspect was not told of his right to counsel of his own choice, or of his right to legal aid. Of course the record itself (of the caution statement) shows that he was told in the following terms:

“Q1: Also wish to inform you of your right to consult your lawyer, your relatives or your wife or the legal aid scheme. You can consult by telephone if you know the telephone number. Do you understand that?

A: Yes.

Q: What do you want?

A: I do not want a lawyer, this is enough.”

When the interview was suspended, and continued at 1200 hours on the 11th of April, the interview reads:

“Q52: Before I start interviewing you again, do you wish to see your lawyer, relatives or the legal aid to advise you?.

A: We start our interview and I will later see them.”

Did these statements constitute a valid and informed waiver of the right to counsel? Of course the accused himself says that this part of the record is a police fabrication and that he was never told of his right to counsel. In R v Black (1989) 2S CR, the Canadian Supreme Court said in relation to section 10(b) of the Canadian Charter of Rights and Freedoms which similarly guarantees a right to counsel:

“The rights accruing to a person under section 10(b) of the Charter arise because that person has been arrested or detained for a particular reason.”

Further in Kerponay v Attorney-General of Canada (1982) IS CR 41 the Court said that any waiver of such a right –

“.....is dependant upon it being clear and unequivocal that a 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 these rights.” (emphasis in the original) per Lamer CJ p. 202.

I find on the basis of the interview notes, and the evidence of DC Remesio and Sgt. Sekove (which I accept) that the right to explained to the accused that he understood the right, and its significance, and that he clearly and unequivocally waived that right. As for the charge statement, the accused’s right to counsel under section 28 of the Constitution was not explained to him. However the accused had waived his right to counsel twice after caution and it is unlikely that the position after charge would have been any different. His statement was very brief, although exculpatory. I find not prejudice to him.

Assault

Although it was suggested to several police witnesses that the accused had been assaulted during the suspensions of the caution interview, and after the recording of both statements, the accused himself gave evidence of one assault. In evidence in chief he did not identify who “hung” him by the collar but demonstrated the way in which he said he had been assaulted. He also gave evidence of generally oppressive conduct indicating the banging of hands on the table and harsh language.

All of this was denied by all the police officers who gave evidence. The medical report (Ex. 2) is also silent on any allegation made by the accused of assault. Further, although in cross-examination it was suggested to Dr. Devi Dass that the scratch marks on the neck found on the accused by the doctor, could also have been caused by an assault, the accused himself did not say that these injuries (or indeed any injury) were caused by police assault. The history related to the doctor by the patient was in relation to the offence then under investigation. He said nothing about any police assault, nor indeed about his epileptic condition.

I am satisfied beyond reasonable doubt that there was no assault on the accused by any police officer while he was in custody at the Navua Police Station. Not only has the accused failed to identify the police officer who allegedly assaulted him, but he failed to inform the doctor of the alleged assault and of any resulting injury. Further he did not complain to the Magistrate or to any other person when he first appeared in court.

Custody

There is no dispute that the accused from 1:20pm on the 10th of April, to 9:00am on the 12th of April was in police custody. He was questioned whilst in custody.

In other jurisdictions, the police are given specific but limited statutory powers to question those in custody. The U. K Police and Criminal Evidence Act 1984 is one example. The 1988 amendment to the Crimes Act 1958 in Victoria, is another. New Zealand, and Fiji have no such statutory provision. Section 27(3) of the Constitution provides:

“Every person who is arrested for a suspected offence has the right:

1. to be informed promptly in a language he or she understands that he or she has the right to refrain from making a statement.”
   

If the detainee chooses after such a warning to make a voluntary statement, without any prompting from police, and that statement is inculpatory, then it is admissible in evidence. However, when detainee is questioned whilst in custody, then despite the voluntariness of the answers to those questions, should a trial judge exclude the record of the interrogation?

The Judges Rules fail to provide adequate guidance in this respect either to judges or the police. Rule I states:

“When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.” (my emphasis).

It would be difficult to find a clearer statement of a police right to question those in custody.

The New Zealand Court of Appeal in The Queen v Convery [1967] NZCA 37; (1968) NZLR 426 said that the Judges Rules do not have the force of law in New Zealand. They are merely administrative guidelines used as a yardstick for assessing the propriety of police conduct. However in the same case, McCarthy J. said that it was important he decide whether or not a person was in custody at the time of interrogation because (at p 442) –

“....questioning which may be permissible when a subject is not under restraint and is able to depart, can be highly objectionable when liberty to leave has been taken away from him.”

It appears therefore that despite the absence of specific statutory authority given to the police to question detainees, judges may decide not to exclude the records of confessions having taken into account the custody and the circumstances of it. Thus in Siga Lesumailau & Sikeli Tamani v State Criminal App. No. AA00023 of 2000S, a suspect who had been in custody for over 26 hours and who had suddenly confessed after several hours of denial, was held to have made a voluntary admissible confession. His conviction was upheld by the Court of Appeal.

In Sudesh Jeet v The State Cr. App. No. AA0036.1999S, however, the accused had been in custody for more than three days and three nights. His initial interview was exculpatory. His second interview, which commenced after he had been custody for about 46 hours was inculpatory. The trial judge admitted his interview. The Court of Appeal heard that the judge had failed to put sufficient weight on the effect of the continued detention and the undue pressure which must have resulted. At page 7, the Court said:

“The detention would seem to be a clear breach of s27(1)(b) of the Constitution, which gives a detained person the right to be promptly released if not charged. The importance of the Constitutional provisions and the likely consequences if they are breached must be kept firmly in mind..... In the whole of the circumstances we are taken to the clear view that the two later statements were obtained unfairly and in oppressive circumstances, and were therefore wrongly admitted in evidence.”

The position therefore appears to be that a statement taken in custody will not automatically be excluded in evidence. However the State must show that the custody was not oppressive and that there was no breach of section 27 of the Constitution. A judge should exclude such confessions if they are obtained in unfair and oppressive circumstances and where custody was unnecessarily prolonged.

In this case the accused was in custody for a total of 42 hours. During that time he was locked in the cell (and had slept) for about 16 hours. There were long breaks, during the rest of the time and one reconstruction of scene. The actual interviewing hours were 12½ hours excluding the breaks for meals and cigarettes.

In the circumstances I do not consider the circumstances of the interview and custody to be oppressive despite the fact that he accused was at all times in custody. Further I do not accept the accused’s evidence that he was ill during and after the interview. He said in cross-examination that he was fit. The doctor clearly would have noticed if he had suffered loss of consciousness before the visit to hospital, and he himself said that the only doctor he has ever consulted on his alleged condition is the prison doctor. He displayed his medication in the course of his evidence but the pills were not labeled and it is not known what form of medication they were. Constable Temesio who had played soccer with him for five years, had not heard of his condition. There was evidence that he stuttered from Sgt. Sekove, but, the overall evidence, which I accept, is that he understood all that was said at the interview and answered freely.

In all the circumstances, I find that the statements were not obtained as a result of long or oppressive hours of questioning in custody.

Fabrication

Of course the truth and reliability of the statements are matters for the assessors. However the accused alleged that the police fabricated the statements and forced him to sign them.

The first part of the interview, taken on the 10th of April, is non-controversial. The police asked no direct questions about the accused and the victim Kamlesh Chand. However on the 11th of April, after the visit to the accused’s house and the search of it, the interviewing officer asked:-

“Q53: We have completed a search of your home. You showed us the items that you were wearing on Friday 07/04/00. Missing were Kamlesh Chand’s items, his flip flops, payslip, cash and comb. What can you say about these?”.

The accused said:-

“His payslip and cigar were in a white plastic and his comb, we left it where Kamlesh Chand was lying.”

The accused then proceeded to make a full confession of an assault on Kamlesh Chand. This sudden change in the form of questioning, after a serves of non-controversial questions, the day before is somewhat surprising. No police officer gave evidence explaining the change in tack. However the accused later in the interview, said:

“I was telling a lie in the first stage, now I meant to clarify myself, that I have given a true statement as I knew it would ruin myself at what I had done. I was frightened to give statement.”

The medical report records the doctor as having found the accused remorseful. The accused himself does not say that he was assaulted as a result of which he confessed. He says that he never confessed and was forced to sign a false statement.

Reading the contents of the statement, and the way in which questions and answers were framed, and having heard the evidence of all the witnesses in this case, I am satisfied beyond reasonable doubt that the accused was not forced to sign a false statement. The truth of the statement, and its reliability are matters for the assessors. They will be directed to consider the sudden confession on the 11th of April after an exculpatory statement given the day before, as relevant to the question of weight.

Conclusion

I conclude that the statements made under caution by the accused are admissible in that they were voluntary, not made after the oppressive or unfair questioning by the police nor made as a consequence of breaches of the Constitution. They may be led in evidence.

Nazhat Shameem
JUDGE

February 2003