State v Liaci [2003] FJHC 176; HAC0013X.1999S (22 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0013 OF 1999

STATE

-v-

AMEO RAMOKOSOI LIACI;
SAIRUSI UASIRO; and
SAIMONI SABAKERA

Mr. P. Bulamainaivalu for State
Mr. N. Vere for 1st and 2nd Accused
Mr. E. Veretawatini for 3rd Accused

RULING ON TRIAL WITHIN A TRIAL

The 2nd accused and 3rd accused object to the admissibility of statements made to the police whilst in custody on the 22nd and 23rd of May 1999. The 1st accused initially objected to the admissibility of his statements but later his counsel withdrew those objections the facts that the statements were exculpatory and consistent with his defence. However, at the end of the prosecution case, counsel for the 1st accused said that parts of the interview were fabricated by the police and that the accused had been forced to sign the notes.

The statements in question are:

1. The caution statements of all accused on the 22nd and 23rd of May, 1999;
2. The charge statements of all accused;
3. “Verbal “ confessions made to the police on the arrest of the 3rd accused after a police car chase.
   

The grounds of the objection are that the statements are not voluntary, that there was police assault on each accused at the police station and (for the 3rd accused) at the time of arrest, and oppression. The State submits that the confessions are voluntary and admissible.

The Test

The test for the admissibility of all confessions made to the police is that they must be voluntary and shown not to have been obtained by oppression or unfair conduct.

As the preamble to the Judges Rules states:

“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 statements that it shall have been voluntary in the sense that it has not obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression.”

Oppression has been defined (Tuivaga C J in Mool Chand Labasa High Court 22/11/99) as anything that “tends to sap and has sapped that free will that can exist before a confession is voluntary.”

The onus of proving that the statement made by the accused is voluntary, fairly obtained, and not by oppression, is on the prosecution and the prosecution must prove these matters beyond reasonable doubt. Further, the prosecution must also prove beyond reasonable doubt that there were no breaches of the rights given to accused persons under the Constitution, and if there were breaches, that the accused was not thereby prejudiced.

The Evidence

The prosecution called 9 witnesses in the voir dire. Superintendent Ratu Vio Kinivuai arrested the 2nd accused at Kuku Village. He was apparently sleepy, but co-operative and they left for the Nausori Police Station at 2.30pm on the 22nd of May. It is not in dispute that he was in police custody from that moment. They reached the Nausori Police Station at 3.30pm and Det. Corporal Aminiasi was instructed to interview him under caution.

Cpl. Aminiasi Gaunavou gave evidence that he interviewed the 2nd accused from 3.20pm to 7pm on the 22nd of May. The interview is in the Fijian language and contains a full admission as to the arson incidents on the schools in the Nausori area, but includes a denial in respect of the burning of the SVT office. The Corporal said that although there were no recorded breaks in the interview, the 2nd accused did visit the toilet during the time. He was given a meal before the interview, and another after 7pm. He said that there was no assault on the 2nd accused by him, or by any other officer and that the interview was given voluntarily. He denied punching the 2nd accused and causing him to fall from his chair, and denied telling the 2nd accused that the 1st accused was in hospital with serious injuries.

Cpl. Isimeli Vono gave evidence that the 2nd accused was charged by him on the 23rd of May 1999 and that the 2nd accused made a voluntary statement as follows: “I wish to say that all that is enough for all what I had said before in my previous statement. All what I want to say were all that and the rest I will go and mitigate in court.” He denied assaulting the 2nd accused with Cpl. Marika during the interview, the day before.

Cpl. Iosefo Marika gave evidence that in the early hours of the 22nd of May he received a report of a series of arson incidents in schools in the Nausori area. Whilst on patrol with D.C. Vilikesa, he found a group of youths with suspicious implements behind the R.B. Patel Supermarket. He suspected that the implements had been used to burn the schools, and he gave chase in the police van. After an exhaustive chase around Nausori, he called the police back up. Eventually, the suspect vehicle, a Toyota Hiace van, with the Registration Number DD 256 stopped at the junction of Ratu Kadavulevu Road, Nakelo Road and Veisama Road. The other police vehicles together with the private car of Cpl. Seru also arrived at the junction at the same time. The 3rd accused started to run away from the vehicle and the police officers gave chase, led by PC Kelepi and Cpl. Seru. He was apprehended by the officers and arrested by Cpl. Seru, the most senior non-commissioned officer present.

Cpl. Seru gave evidence that the 3rd accused fell down twice during the chase. On the second fall, he lifted the 3rd accused, holding his arms and said to him in Fijian “what happened?” The 3rd accused replied that he was Saimone Sabakera and that he had been hired by Ameo of Kuku village for $35 to set fire in the Nausori area. Cpl. Seru noticed that the 3rd accused was bleeding from an injury to the head. He was put into the police vehicle driven by DC Rakesh Mani who drove him to the Nausori Police Station. Whilst in the car DC Mani also asked the 3rd accused about the arson and 3rd accused told him that Ameo and a few other boys from Kuku village were involved. He did not implicate himself on this occasion.

He was then taken for medical examination. The doctor who examined him is no longer in Fiji, but his report was tendered by consent. The 3rd accused at 4.10am had a cut on the back of his head (the scar of which can still be seen four years later) causing extensive bleeding. It was caused by blunt force. The doctor stitched and bandaged the cut and prescribed painkillers. The 3rd accused was then taken back to the Police Station where he remained in police custody until he was interviewed under caution at 10.55 that morning. It is not in dispute that his “verbal” confession to Cpl. Seru and DC Mani after the police chase, were not under caution.

The 3rd accused was interviewed under caution by PC Severiano from 10.55am to 1.40pm. The interview was then suspended for rest and reconstruction of scene. It resumed at 7.10pm and continued for a short period thereafter. PC Severiano agreed that the 3rd accused was injured at the time of the interview, that he complained of a headache after suspension at 1.40pm and that he did not ask the 3rd accused at any time, whether he was well enough to be interviewed. During the suspension, the 3rd accused rested in the Crime Office. He could not recall if he took his medicine. The interview is inculpatory in respect of the burnings at the schools. It was put to him that he had refused to provide the 3rd accused with meals and had refused to allow him to take his painkillers. He denied this. It was also suggested to him that he had fabricated the interview notes, then forced the 3rd accused to sign it. He denied this also.

The 3rd accused’s charging officer was Sgt. Viliame Caqusau. The 3rd accused made a confessional statement in his charge as follows: “I wish to mention that I did not take part in setting fire and school-breaking, I was hired to convey them around on the agreement of Ameo Liaci.” This is consistent with the contents of the caution statement.

In their defence, all three accused persons gave evidence. The 1st accused said that he was “dragged” from the house of Jioji Bakoso by SP Kinivio and party, handcuffed and assaulted at Nausori Police Station over a period of several hours. He said that the 2nd and 3rd accused were also being assaulted together with witnesses in the case. He said he head-butted one officer, and threatened to kill all the officers if they persisted in their ill-treatment of him. He said he kicked the doors down of the other interview rooms to stop the other assaults. He said that he denied the allegations and although the statement was read back to him and he signed it, the contents were false because the interviewing officer had fabricated them. The parts he claims are fabricated are those in which he admitted travelling in the 3rd accused’s van and leaving his bag behind in it.

The 2nd accused also gave evidence. He said that the police came to get him from Kuku Village between 9am and 10am on the 22nd of May 1999. He said they asked him to accompany them to the police station but that they gave him no reason. He said he went with them willingly. On the way in the police vehicle he said he was punched by the police and assaulted with police truncheons. At the station he said he was handcuffed and put into an empty room in the Crime Office. He was then punched again by DC Marika, DC Vono, 3 Indian Officers and one other Fijian officer. He said that the 3rd accused was then brought to him with a bandage on his head and bloodstained clothes. He said he also had a plaster over his eyebrow.

The police told the 2nd accused that the same thing would happen to him. His interview was then recorded but the 2nd accused denied making any admissions. He said the interview was fabricated and that he was forced to sign it. He said he also heard his son Paula Bativou being assaulted and heard the voices of Rupeni Momo, and Laisenia Teratera. He said he asked for a lawyer but his request was refused. He said that he was not given a rest, or meals or anything to drink.

The 2nd accused called 4 witnesses, Rupeni Momo, Paula Bativou, Virimi Bogitini and Laisenia Teratera. Rupeni Momo, Paula Bativou and Virimi Bogitini testified that they too were assaulted at the police station by police officers and that their statements were fabricated by the police. They each said that they were forced to put their signatures to their plain statements. Rupeni Momo gave evidence of sustained beating over 1½ to 2 hours and of some injuries received as a result. He said he had not been to see a doctor. Paul Bativou said he had received a cut over his eyebrow and that he had been to see a doctor but he could not recall his name.

All witnesses are closely related to the 1st and 2nd accused. Paula Bativou is the 2nd accused’s son.

Laisenia Teratera’s evidence however was quite different. He said that he went to the Nausori Police Station with the police, willingly. He said that no one had forced him to make a statement, nor had anyone threatened or assaulted him. He said he had seen the 2nd accused at the station and that no one was assaulting him. He said that he had been approached by one Asenaca the 2nd accused’s wife and by Paula Bativou to tell the court lies, that is that he had been assaulted by the police and forced to sign a fabricated statement. He said he had told Ms Tanya Waqanika, the Suva City Council solicitor of this. He is an employee of the Suva City Council. He maintained this position during examination-in-chief and cross-examination.

The 1st accused

Having heard the evidence of the police officers who arrested and interviewed, and the evidence of the 1st accused, I have no doubt at all that the accused gave the statement to the police voluntarily. I am satisfied beyond reasonable doubt that he was not forced to sign a fabricated statement. Firstly, the statement is largely exculpatory. Secondly the 1st accused, accused the police of obtaining his statement under duress. One would expect that to be expunged in a fabricated statement. Thirdly the accused’s story of lengthy and sustained assault over several hours is completely unsupported by medical or other evidence. Finally the claim of oppression and ill-treatment is inconsistent with his evidence that he assaulted Constable Tikiko and kicked down the door of the interview rooms. I am satisfied beyond reasonable doubt that the accused was not assaulted and that he was not oppressed. The interview hours were not overly long and he was interviewed in the Crime Office. He was given meals but he chose not to eat. Although he was not initially told of his right to counsel, he candidly said that he knew he had such a right. I do not accept that he asked for Mr. Tevita Fa’s services before the interview. Given the scrupulously recorded interview, if he had made such a request, I believe that Cpl. Levi Seduadua would have recorded it. He certainly did so at the end of the interview. I find that although he was not told of this right, he was not prejudiced by this breach because he knew he had such a right and because he made an exculpatory statement.

I find that the contents of the interview notes of the 1st accused are admissible. Similarly the charge statement (which is also exculpatory) is admissible in evidence.

The 2nd Accused

The 2nd accused made full admissions to the police after an interview which commenced at 3.20pm on the 22nd of May and concluded at 7.13pm on the same day. Although I have listened carefully to the evidence of Rupeni Momo, Virimi Bogitini and Paula Bativou, I do not accept their evidence that they were assaulted at the same time as the 1st and 2nd accused were being assaulted. Firstly they are closely related to the two accused and were also suspects in relation to the same allegations. Secondly, at the time Rupeni Momo was supposedly being assaulted in the Crime Office, on his own evidence he was locked up in the cell and was not taken to the Crime Office until the 23rd of May, by which time the accused had already made their statements. Thirdly their evidence that they had no idea why they were at the station is difficult to believe. Fourthly their evidence that they resisted the assaults and refused to admit anything after hours of beating, but suddenly capitulated when they were asked to sign false statements, defies belief. If they maintained their denials for hours despite sustained torture, why did they suddenly agree to sign the statements? Fifthly, there is no evidence of any injuries. Lastly, the demeanour of these three witnesses was not impressive. In particular Paula Bativou was contradictory and evasive. I have no doubt at all that the evidence of these witnesses was a concoction of lies, and their slavish consistency as to the modus operandi of the alleged police beating did nothing to advance the 2nd accused’s version of events. The evidence of Laisenia Teratera that he was told to give evidence to conform to that of Rupeni Momo, Virimi Bogitini and Paula Bativou, confirms my findings on the matter.

I am satisfied beyond reasonable doubt that the 2nd accused gave his statements voluntarily and that he was not oppressed. I am satisfied beyond reasonable doubt that he went willingly with the police and co-operated with them. His statements under caution and at charge are admissible.

The 3rd Accused

The 3rd accused’s evidence was that he was driving home from his mini-bus driving duties on the night of the 21st of May 1999, when his way was blocked by a police vehicle at the Veisama junction. He stopped his mini-bus and was pulled out of his seat by PC Marika and PC Vilikesa. He said that PC Vilikesa was carrying a truncheon (he later said it was a baseball bat) and that he hit the 3rd accused with it. It caused a lacerated wound to the back of his head. He was also assaulted by PC Marika. He was taken to the Nausori Police Station where he complained about his injury. He was taken to see a doctor who stitched and dressed his injury. He was then taken back to the Police Station where he was given a statement to sign. He said he signed because he was in pain. He said he was not questioned by the police, nor did he give any statement to them. He also said that although he had been prescribed pills by the doctor, they had been taken by PC Seru and not given back to him.

I have listened to the evidence of the police officers in this case, and I accept that at the Veisama junction the 3rd accused was trying to run away after a car chase. I also accept that he received his injuries in the course of his arrest and apprehension. However, exactly how he received the injury to the back of his head is not at all clear from the police version of events. I do not accept that he fell and received the wound despite the medical repot suggesting that he may have fallen against a blunt object, and I consider it more than likely that some type of blunt force was administered directly to the back of his head during his apprehension. There was certainly no evidence of any blunt object lying around on the road against which the 3rd accused might have fallen.

Whatever the cause of the wound however, there can be no doubt at all that he must have been in considerable pain and weakened by the loss of blood. He was not taken to a doctor until 4am. He was given antibiotics and kept in custody. Although his interview did not commence until 11am on the 22nd, no one asked him how he felt, and whether he was in pain. After hours of sitting in the inquiry room (and we do not know what he ate or whether he slept) he was then subjected to several hours of interview and a reconstruction of scene. The “rest” before reconstruction does little to assist the police. A man in pain, with no sleep from the night before and with no prospect of sleep in comfortable conditions, is unlikely to give a voluntary statement. More importantly, I consider that the circumstances were such that his free will had been sapped and that he gave his statements (both caution and charge) as a result of oppression. I rule them inadmissible. They may not be led in evidence. For the same reasons, evidence of his verbal conversations with the police after his arrest are not admissible. Not only must he have been in considerable pain during these conversations, the police officers failed to administer a caution to him at the time of arrest. Such a clear breach of the Judges Rules must lead to the exclusion of those admissions.

Result

The caution and the charge statements of the 1st and 2nd accused are admissible. The caution and charge statements of the 3rd accused and his verbal admissions are inadmissible.

Nazhat Shameem
JUDGE

At Suva
22nd August 2003