State v Delana [2003] FJHC 49; HAC0014.2002 (5 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC014.02

THE STATE

V

LAGISOA DELANA AND 3 OTHERS

23-30 April, 5 May 2003
Gates J

RULING ON VOIRE DIRE

Ms A. Prasad for the State
Ms J.S. Nair for all 4 Accused

Introduction

[1] The 4 Accused claim the inculpatory statements attributed to them were involuntary. To investigate this claim a voire dire was held. Both the prosecution and the defence have adduced evidence in this part of the proceedings and filed written submissions through their respective counsel.

[2] The Defence also claim a denial of rights, in that the Accused were denied the right to a lawyer, denied meals at the Police Station, were not cautioned prior to the taking of statements, and were not allowed visits from relatives.

[3] The information alleges that the 4 Accused were involved in a joint enterprise and that they robbed employees of the Rajendra Prasad Foodtown Supermarket at Nakasi on the morning of 26 March 2001 making off with $64,406.65 in cash and cheques. At least four men arrived in a pajero vehicle at the Supermarket. It blocked the company’s vehicle that was about to set off for the bank with weekend takings.

[4] These men emerged from the pajero and attacked the windscreen and side windows of the van with caneknives and a pinchbar, shattering the glass whilst the two supermarket employees were still inside. Eventually the supermarket employees evacuated the van, leaving the money carton behind. The carton containing ANZ cloth money bags was promptly seized by the robbers.

[5] The robbers made off at speed in the pajero. There was a chase through many streets. Accused 3 Joeli Kete was arrested first. At one point in the chase on Princes Road the pajero stopped across the road and blocked both lanes. The Accused threw stones at the pursuing police vehicle, then got back into the pajero, which took off again.

[6] All, that is, say the prosecution, save Accused 3 Joeli Kete who could not open his side rear door. He was not masked at that time. Instead he ran down a steep slope into some bush. The police pursued him over wet ground. There was no track as such. The prosecution say he slipped and tumbled over the rocks. He also resisted arrest. But he was overpowered. PC Josaia said Accused 3 was “quite injured” as a result of slipping. He had bruises on his hand that the officer could see.

[7] The pajero was pursued by police to Savutalele village. The pajero was abandoned by the robbers. The police released a police dog at the Veikoba side which picked up a scent. Accuseds 1, 2, and 4 were seen running. Eventually one dog led to Accused 4 Josese Tuwaqa. He was found lying in a creek having been seen to fall into it. He denied involvement in the robbery but did not resist arrest otherwise. One officer said he had “tried to run to resist”, and had pushed an officer.

[8] Accused 2 Sikeli Tikoicina was found a little further on. He was half submerged in the creek. He was arrested. He made no comment and held his head down. Cpl. Esala of the Dog Unit thought that neither of the Accused had any injuries on them.

[9] Accused 1 Lagisoa Delana was arrested when he was recognised as one of the pursued. He was seen walking along Khalsa Road with a caneknife, and had in his other hand a pompom hat containing an ANZ Banking bag. He could not account for the bag.

[10] The Accused were first taken to Valelevu Police Station. Because the supermarket was in the Nausori Police area, they were taken on to Nausori Police Station arriving at 1 p.m. the same day as the robbery. Accused 4 Josese Tuwaqa arrived a little later at 2.28 p.m.

[11] Over the latter part of the 26 March and all of 27 March 2001 they were kept in the police cells at Nausori save Accused 1. Accused 1 was kept in cells at Nasinu because of shortage of cell space at Nausori. Accused 1 and 4 were taken to the Nausori Health Centre for medical examination at 4.30 p.m. on 26 March. Accused 2 and 3 were taken there later, at 4.45 p.m. On the morning of the 28^th, according to the station diary and after all of them had been charged they were taken to Samabula Police Station for another investigation.

[12] Caution interview statements and charge statements were taken from all 4 Accused at Nausori during this period.

The Medical Reports and the Injuries

[13] The medical reports completed by Dr. Mohan Lal at the Nausori Health Centre bear signs of perfunctory filling out. All four of them record that the examination took place at 4.30 p.m. The station diary does not support such timing. Entries record Accused 1 and 4 were taken to the Health Centre at 4.30 p.m. and Accused 2 and 3 at 4.45 p.m. Not all patients could be seen or were seen at once.

[14] None of these patients was satisfied with the doctor’s report. If the health centres were equipped with photocopiers, each Accused, or complainant, could be handed a copy of the report at the conclusion of the examination. The person examined could then take up with the medical practitioner if any material symptom or injury had been omitted from the report.

[15] Some questions were not filled in. One signed consent was not obtained. There was some repetitive similarity in the recording of the answers. All were described upon examination as calm, ambulatory, with tattoos on the back of the body, and mud stains on clothing.

[16] Accused 1, 2, and 3 are recorded as having said in answer to Question 12 [History related by patient]

“He was involved in a robbery with violence and got injured while being arrested by police.”

[17] Injuries were given as:

Accused 1: Small area of laceration on chin.

Accused 2: Bruised left chin, lacerated wound 1 cm.

Accused 3: Bruises on left hand, laceration left face.

[18] But Accused 4 Josese Tuwaqa was noted to have a limp and his injuries were:

1. Bruises on right side of face.
2. Haematoma of right hand.
3. Bruise on right leg.
   

[18] Accused 4 was accordingly x-rayed. The doctor recorded the result as showing a fracture of the right hand at the 4^th metacarpal bone. The doctor did not record what he did about these injuries. According to Accused 4 however in evidence his lower arm was put in a plaster of paris cast.

[19] The doctor’s entry in Accused 4’s case under ‘History’ differs slightly from the 3 others. He records:

“He was involved in a daylight robbery and was running away from police when he got injured.”

Added on as if by way of an after thought is the “patient’s” observation to the doctor that “he was resisting arrest”.

[20] The Defence maintained that Det. Corporal Aminiasi was present in the doctor’s examination room throughout. The doctor has not so recorded. He gives the names of Staff Nurse Vaciseva, himself, and the particular patient as being present at each examination. These patients were in police custody at the time and I see nothing improper in the presence of a police guard in the same room. However no part could be played by a member of the police investigation team in colouring the doctor’s opinion or in guiding the completion of the Medical Officer’s Report.

[21] The other 3 Accused were treated with “analgesic/dressing”.

The Defence Allegations on Injuries

[22] Accused 1 said he had pains all over his body as a result of the police beating he received at Valelevu Police Station. Then he said he was beaten at Nausori Police Station. At the hospital he says he was not fully examined and the police officers escorting him went in to talk to the doctor first.

[23] He said “my hand was all swollen, cuts over my lips, and eye brows, and I can feel pain in my chest and all over my body”. I have some sympathy for the doctor in a busy small hospital such as the Nausori Health Centre, when 4 extra patients arrive to be fitted in like this. I have indicated the form filling was less than meticulous. The history could have been filled in more carefully detailing what the patient actually said as to how he came by his injuries. The doctor was not called since the defence consented to the reports going in under section 191 of the CPC. The Defence should have insisted on the doctor’s attendance for cross-examination if there were any serious challenge to his reports. They are to be taken to agree with this record of injuries. I prefer the doctor’s account of the significant injuries to be noted. Cuts on lips and eyebrows could not be missed. Indeed they would be too obvious for them not to be recorded by the doctor. I find therefore that the additional injuries as related by Accused 1 were not present.

[24] Accused 1’s wife attended the station. She was allowed to meet him. She said she arrived about 4 p.m., that is prior to his departure for the hospital. She saw injuries on him. However she said she never asked her husband how he came by those injuries, nor did she complain to anyone.

[25] Accused 1 said the doctor had examined his back, without his shirt, and his front ribs. All of this suggests the doctor was carrying out his examination correctly, an examination that would have discovered if there were any tender places had Accused 1 been kicked or beaten. Accused 1 said he himself did not point out to the doctor any particular injuries.

[26] Surprisingly Accused 1 denied the one injury that the doctor had actually recorded, the laceration on the chin. Instead Accused 1 said the doctor put a dressing on his eyebrows. I find this account implausible. I accept the doctor’s record of the injury to Accused 1. I do not find Accused 1’s wife an independent witness on this issue.

[27] Accused 2 Sikeli Tikoicina said he was beaten up by police officers upon arrival at Nausori. There were many of them though he does not know their names. They used sticks, and iron rods. They tied up his legs and feet, took him into the cell, kicked him and stepped on him with their boots. He said he had cuts on the lower chin, left and right eyebrows, and on both lips. His ribs, hands and armpit were very painful and black from the sticks and boots. His head was swollen.

[28] He said he told the doctor about all of these, and how he had received them. He said he had dressings put on the chin and both eyebrows.

[29] Accused 2’s father was called as a witness. He and his wife arrived at Accused 2’s request, having been called by the police to be present during the taking of the caution interview statement.

[30] He says he never spoke to his son. He could not recognise him immediately he said “because of the extent of the injuries he had on his face”. He said “there was a scar under the chin, both lips badly swollen, blood dripping down from his forehead”, and that every now and again he had to spit blood.

[31] The doctor refers to a dressing on the chin, and Accused 2 speaks of dressings on chin and both eyebrows. The father spoke of seeing a scar on the chin. Could a scar have been seen through a dressing? He does not confirm the dressings on each eyebrow.

[32] I find the father is remembering a scar on the chin perhaps after the dressing was removed some days later. He did not confirm the dressings on the eyebrows, which also tends to support the doctor’s report. Again bleeding eyebrows would have had to have been dressed, and there is no reason why the doctor would have omitted to record such obviously visible injuries.

[33] If as Accused 2 says, his back and front were black from blows and kicks, matters which were brought to the attention of the doctor who had examined him, any painful areas could have been x-rayed for broken ribs. I conclude Accused 2 did not have such injuries to show to the doctor, other than the bruise and lacerated wound on the chin.

[34] To be so badly injured as Accused 2 claims at the outset would defeat the purpose of the police taking the Accused to the hospital so as to establish his condition and fitness prior to interview. Why would they have allowed the 37 year old Accused to have his parents present with him during the interview, if only to witness his injuries after a severe police beating? The idea is implausible.

[35] Accused 3 Joeli Kete said he was locked up in the cell at Nausori. The police assaulted him there. He was hit with a bat. He was kicked many times and they jumped on his body. This was done by between 5-7 officers. An iron bar was used to poke his back, and to hit his head, he said.

[36] When he went to the hospital, he told the doctor what had happened to him and how he had been beaten up. The doctor he said examined his back. Accused 3 said he had injuries to the back of the neck, both eyebrows, a bloody nose, injuries to ribs on both sides, both his upper arms, and both legs. He was given he said dressings to the eyebrows and for a cut to the head.

[37] The doctor’s report does not support these injuries. Even allowing for a little misdescription on Accused 3’s part, he should have been considerably injured after such attacks. He says also that upon his return from the hospital he was assaulted severely again in the cells with an iron rod and baton being used on his back, side of body, and head.

[38] Once Accused 3 related his account to the doctor, the doctor would have been able to look out for and to note significant injury to the Accused’s body. He did not so discover, apart from the 2 injuries listed, bruises on left hand and lacerations on left face, the latter being dressed. I accept the doctor’s findings on the injuries present.

[39] Accused 4 Josese Tuwaqa had more substantial injuries which the prosecution does not dispute. He said he was assaulted upon arrival at Nausori Police Station. The assaults consisted of kicking with boots, and hitting with batons. He was slapped, and dragged around the cell block. The injuries he related were similar to what the doctor has recorded, though the doctor has noted additionally a limp, perhaps from the right leg on which the doctor has recorded a bruise. Accused 4 also says he was spat on and punched.

[40] Accused 4 said he told the doctor exactly what he complained of. The doctor had asked him what the problem was. The doctor examined him, and put his right arm in a plaster cast. He also gave him tablets. Whilst Accused 4 says he was not satisfied with the doctor’s report, in his case, there is no realistic variation. Perhaps he indicates that there should have been bruises and tenderness noted on other parts of his body. I accept that the doctor listened to Accused 4’s complaints and has correctly recorded them in his report as he heard them and as he found them upon examination.

What caused these injuries?

[41] Accused 1 said he was beaten at Valelevu Police Station. No details were given of this bare allegation. At interview at Nausori, he said he was cautioned and given a right to a lawyer. His statement he recollected was read back to him. He was allowed to see his wife and child. None of this supports the allegation of assault.

[42] He says he complained of assault to Cpl Aminiasi a person who he claimed was one of his assaulters. Why would he expect a complaint of assault to be investigated by one of the perpetrators? Was he serious in making such complaint? It is denied by Cpl. Aminiasi. I find Accused 1 did not lay a complaint of police assault with Cpl. Aminiasi or anybody else.

[43] The correct person to make initial complaint to would have been the Station Officer, a uniform officer. Even the Accused’s wife could have alerted others whilst her husband remained in custody. Second, Accused 1 or any of the Accused could have asked the doctor to note his complaint of assault by police. Thirdly, each could have notified the Magistrate upon first being taken to court to record their complaint of police assault. They were first before a Magistrate on 29 March 2001 represented by counsel. Neither they nor their counsel brought such complaint to the attention of Mr. Temo, then the Chief Magistrate.

[44] A complaint could also have been brought to the attention of a Visiting Justice at the remand prison. This was not done. Complaints are sometimes brought to the attention of the Human Rights Commission. Accused 2 said he did bring such a complaint but was unable to say what the outcome was. Sometimes the Ombudsman is asked to inquire into such matters. This was not done.

[45] When the Accused were out on bail, as they were from 12 April 2001, they then had an opportunity to seek advice and to make complaint with Police Complaints Department. None of them did however. Police Complaints Department is the correct body to deal with complaints of assault on suspects in police custody.

[46] Accused 1 says he “just answered their questions and co-operated with the interview because I felt sorry for myself”. Later he said he was forced to sign the papers but he did not know what they were. His statement he admits was read back to him so he could tell if his answers had been correctly recorded. His complaint is that he was forced to make the statements.

[47] The voluntariness of the Accused’s statements must be proved beyond reasonable doubt: DPP v Ping Lin [1976] AC 514 18, Ibrahim v The King (1914) AC 599, Shiu Charan v R (unreported) Fiji Court of Appeal Cr. App. 46/83. Lack of oppression or unfairness in the manner of obtaining the statements must similarly he proved: Callis v Gunn (1964) 1 QB 495 see too Preamble to the Judges Rules. The burden in the voire dire lies upon the prosecution.

[48] In considering these issues it is important to bear in mind that all the Accused were being detained in custody. Sachs J described oppression as a word which “imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary...” Note to Martin Priestly 51 Cr. App R 1.

[49] There are obligations placed on the investigating authorities contained in the Bill of Rights in the Constitution also to be borne in mind [sections 23, 25, 27].

[50] Accused 2 Sikeli Tikoicina’s evidence was that his injuries had been caused by the severe beating he had received at the hands of the Nausori Police. His legs and feet were tied whilst he was in the cell, and one by one, about 10 officers hit him with sticks and iron rods, and kicked him with boots.

[51] If this were true, a considerable beating had been carried out on Accused 2, which would give rise to obvious and visible injuries. These were not confirmed by the doctor at the hospital, whose examination and conclusions could have been challenged in this voire dire. They were not.

[52] He said he complained to a police officer at the station and later to a prison doctor. He also said he made a report to the Human Rights Commission. No details or evidence is produced of any of this. There was no complaint to the Police Complaints Department, whilst Accused 2 was on bail, as were all the others save Accused 4.

[53] Accused 2’s caution interview may be regarded as an admission statement, but not his charge statement in which he denied knowledge that the robbery was to take place. His will, if he were beaten, was clearly not overcome.

[54] Accused 3 Joeli Kete’s account is similarly of a severe beating. Indeed in both Acused 2 and 3’s accounts one would have expected broken ribs, perhaps other broken bones and obvious and serious tenderness and bruising. None of this is supported by the doctor.

[55] Accused 3 admits this is the first time he has made any form of complaint of this, if true, highly improper conduct, on the part of the police. He has been on bail since May 2001. He was forced to sign what were statements that he had not contributed to in any way.

[56] Accused 2 said he disagreed with the police at the commencement of the interview. Then his parents arrived, at his request, and at the arranging of the police. After they arrived he said he “answered all their questions”. He still maintained it was not his statement. I find that Accused 2 was not, in the presence of his parents, being compelled or frightened into making statements which he would not otherwise have given. There still remains whether any of the conduct of the police was oppressive or unfair, and for the trial, whether the statement he made was correct and true.

[57] Accused 4 Josese Tuwaqa says nothing about his having fallen into the creek, about the circumstances of his capture and arrest. He attributes all his injuries to a similarly severe beating upon arrival at Nausori Police Station. He does however deny resisting arrest.

[58] He totally denied making any part of the caution or charge statements. He signed both because he was frightened. He said he complained to the Magistrate of the Assault. This is not noted on the court record. Such complaints are usually noted down and the prisoner advised to make a formal complaint with Police Complaints Department. I cannot accept that any complaint was made.

[59] I find the more likely cause of injury to Accused 4 who was running away from the pursuing police was that he lost his footing on rough slippery ground and fell into the creek. This was how he bruised and hurt his leg which produced a limp, and broke the bone in his knuckle, which was the hand injury that Cpl. Josaia from crime stoppers noticed at the scene of the arrest.

[60] As for Accused 1 his small laceration on the chin is also likely to have been caused during the chase through the rough ground and plantations. I so find for purposes of this voire dire.

[61] I am satisfied beyond reasonable doubt that all 4 Accused did not receive beatings such that their statements to police were made by reason of force or fear and therefore involuntarily.

Was there Oppression or Unfairness?

[62] These two issues are to be considered separately. I have considered the evidence in relation to the cautions and the statements themselves and conclude that all 4 Accused were indeed cautioned prior to making each of those statements.

[63] The right to counsel is fundamental. [section 27(1)(c) Constitution]. It must be accorded prior to any interrogation of a suspect or prior to the taking of any statements. A-G of Trinidad v Whiteman [1992] 2 All E.R. 924; State v Ram Lingam (unreported) Suva Cr. Case No. HAC0010.2000S. 13 June 2001, Shameem J.

[64] Accused 1 admits he was cautioned and accorded the right to call a lawyer. He waived that right. He said he would get a lawyer later. Accused 2 elected not to have a lawyer, but asked instead for his parents to be summoned to be present. His parents duly attended as is recorded on page 1 of the caution interview statement. The interview then proceeded. Accused 1’s father, who gave evidence, was a retired school teacher who was both alert and articulate.

[65] Accused 3 Joeli Kete was similarly asked at the outset if he wanted a lawyer and said “no”. He signed an acknowledgement that he had been so asked. Accused 4 Josese Tuwaqa at first said he wanted his parents to be present, not a lawyer, then said “No, it is alright just proceed with the interview”. At this point he was asked to sign which he did.

[66] According to the Prisoners Meal Register which was tendered all 4 Accused were given lunch on 26^th March. They were also given dinner. They were all given breakfast and lunch on 27^th March and all were given dinner save Accused 2. The station diary records the visit of Accused 2’s mother at 12.21 hours on 27 March who had called in to the station to bring his lunch. She left after 3 minutes. Since Accused 2 had already been provided with lunch, the mother’s lunch was then given to him for that evening’s dinner. He is also recorded as refusing lunch. This may have been because he was not allowed to break off the interview to speak to his visitor Salote. I am satisfied all the Accused were provided with sustenance and that there was no oppression or inhumane treatment meted out to them.

[67] I have carefully examined the allegation that the Accused were not allowed visitors. Accused 2 was not allowed to see Salote of Makoi, according to the station diary. The diary notes that at that time, 15.35 on 27 March, Cpl. Severiano explained to her that Accused 2 was “still under interrogation”. It is not clear what time this was completed and when Accused 2 was re-locked in the cell. There may have been an omission to record his return to the cell. Accused 2 of course had his parents present during the major part of his interview.

[68] No one came to see Accused 3 and he appears not to have required anyone to be contacted. Accused 1 had a visit from his wife, who took away a pair of Lee trousers. It was the police who called her to the station according to her evidence. This was after Accused 1 had returned from the hospital. Accused 4 says he was not allowed to see anyone. No one came to the station for him. He does not say who he asked to be contacted. The caution interview suggests he had second thoughts about calling his parents. I accept that he was given the chance to contact them and thought better of it.

[69] I conclude that there was no oppression or unfairness extended to the Accused and I rule that the statements were made voluntarily. It will remain an issue for the trial proper to consider whether these statements were actually made and if so whether they are accurate and true.

A.H.C.T. GATES
JUDGE

Solicitors for the prosecution: Office of the DPP
Solicitors for the 4 Accused: Legal Aid Commission