State v Tuiyanawai [2005] FJHC 153; HAC0022yy.2004S (24 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004S

STATE

v.

SAMISONI TUIYANAWAI;
SEMISI WAINIQOLO;
SOLOMONI BOINI; and
MOSESE YACO

Hearing: 22nd June 2005
Ruling: 24th June 2005

Counsel: Mr. W. Kuruisaqila for State
All accused in person

RULING

The 4th Accused objects to the admissibility of his statements to the police. Although he initially had no objections, after I ruled on the admissibility of the other 3 accused persons, he said that he now objected because the police had made inducements to him. In particular, he said that the interviewing officer, Detective Constable Aminiasi Cula, promised that he would be made a State witness if he confessed to his role in the robbery.

The State called Detective Cula and the charging officer Police Constable Jitoko as witnesses in the trial within a trial. Detective Constable Cula gave evidence that he interviewed the 4th Accused at 1.20pm on the 11th of June 2003 at the Samabula Police Station. The interview was conducted in the Fijian language. The 4th Accused was cautioned, and told of his right to a lawyer, or a representative from the Legal Aid Commission.

The 4th Accused then told the officer that he drove several men around Suva, up to the Westpac Bank on the 5th of June, and then dropped them back to their homes. On the 13th of June at 12 midday, after a long suspension overnight, the 4th Accused apparently said –

“I would like to be used as your witness but I want myself and my family to be protected.”

He then proceeded to give details of his conversations with the men in his taxi but at Q125 he said – “I beg and request you that I would like to change my statement since all the statement I have given is false.”

He then told the officer that he was told by “Bond” that an Armour Guard vehicle was to be robbed at Wainadoi. He was later told that the plan was to be changed. He then gave an account which included picking up the white truck from Tovata, waiting near the Handicraft Centre, picking up “Bond” near McDonalds’s and the giving of money on the 6th of June 2003. He said he received no money for his efforts.

The charge statement was taken by Constable Jitoko. After the caution and allegation, the 4th Accused said:

“I am willing and available to be a police witness in this case. I admit committing this offence and I wish to go home as I am the only one working in the family.”

Clearly both statements are inculpatory. The prosecution is unable to produce the original Fijian version of the charge but produced the typed translation with no signatures.

All statements made by suspects to a person in authority must be voluntary. Further they must be proven to be obtained fairly, not by oppression and not as a result of any breaches of the Constitution. The burden of proving that an interview made to a police officer is voluntary, fair, not oppressive, and not in breach of the Constitution rests on the prosecution. They must prove these matters beyond reasonable doubt.

In this case, the 4th Accused alleges that promises or inducements were made to him, that if he confessed, he would be made a State witness. Certainly, the fact that he hoped to be made a State witness, is reflected in the interview and charge statements. The question for me is whether the police, either impliedly or directly, made such inducements to the 4th Accused. If they did, and the confession was made thereby, I would have a reasonable doubt as to voluntariness and fairness, and the confessions would be held to be inadmissible.

I have no doubt at all that a promise to the suspect that he would not be charged if he told the truth, but would be made State witness, is an inducement. In this case the 4th Accused says (in his unsworn evidence) that the police officers (Constable Cula and one Lesu) promised him immunity. Constable Cula says that the 4th Accused wished for immunity (and said so in his statement) but that no such promise was made to him.

An inducement can result from a combination of the suspect’s words and the person in authority. In R v. Zavecka (1970) 54 Cr. App. R. 202, the suspect said to a police officer: “If I make a statement, will you give me bail now?” The officer replied: “Yes.” The subsequent confession was inadmissible. In R v. Northam (1967) 52 Cr. App. R. 97, the suspect suggested that if he told the truth in respect of a recent housebreaking, this could be taken into consideration at the forthcoming trial on other offences. The interviewing officer accepted this. It was held that this was an inducement and the confession was inadmissible.

A promise that if the suspect confesses, there will be no prosecution was held to be an inducement in R v. Boughton (1911) 6 Cr. App. R. In R v. Hall (1853) 2 Leach 559, it was held that a confession made with a view and under hope of being permitted to turn Queen’s evidence was inadmissible.

It is apparent to me, from the way the answer to Question 117 reads, that the 4th Accused did entertain hopes of becoming a State witness. But the question is not what he hoped, but whether he held that hope as a result of something said or done to him by a person in authority.

On this issue, Constable Cula is categorical in his denials. He said he made no such promise and that he knew that he was in no position to make any such promise. He said however that he did, after the interview, approach his superiors to ask them if immunity was possible. They told him that there was a risk that the 4th Accused would turn hostile and that immunity was not an option.

The 4th Accused chose to make an unsworn statement. That was his right, but of course, his evidence was not tested by cross-examination. He said he was in custody for one week and that “they promised me if I told the truth I will be released. I agreed but I said you have to protect me and my family as I am the only one working.” His usnworn evidence made no mention of any promise of immunity. In fact, he said the “inducement” was early release. He does not allege any other type of oppression.

Given the nature of the 4th Accused’s unsworn evidence, I find as a matter of fact that no inducement was made to him when he was interviewed. I accept Constable Cula’s evidence in that regard. Indeed Constable Cula appears to have entertained feelings of compassion for the 4th Accused and his family, which is reflected in the interview itself. Further, I accept that the 4th Accused decided to change his version of the facts after questions were asked of him which might have implicated his wife. I accept that his request to turn State’s witness and his subsequent confession arose from his understandable wish to protect his family.

The interview record is admissible. The charge statement in its original Fijian version was never found. The State seeks to tender only the typed English translation. Although the 4th Accused does not dispute accuracy of the record, he objects to admissibility on the ground that it was obtained by inducement. I find that there was no inducement. Indeed I accept the evidence of Constable Jitoko that he told the 4th Accused that he was in no position to offer immunity. However, the 4th Accused is unrepresented. I think it very likely that if he were represented by counsel, counsel would have objected to the accuracy and admissibility of the English translation. I am not satisfied as to authenticity and accuracy of an English translation without the original Fijian charge statement. When a statement is read in the vernacular in court, the court interpreter only uses the police prepared translation as a guide to the court interpretation. The translation put before the assessors is in effect, the official court translation of the interview.

Here we have no vernacular record for the interpreter to check on accuracy of translation. In the circumstances I hold that the English translation of the charge of the 4th Accused is inadmissible and may not be tendered.

Nazhat Shameem
Judge

At Suva
24th June 2005