State v Buksh [2005] FJHC 428; HAC0010Y.2005S (18 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0010 of 2005S

STATE

v.

SHAKIR RIAZ BUKSH;
JITOKO METUI;
ARE AMAE;
PAULIASI DELAIBATIKI; and
TEVITA KOTOIRAKIRAKI

Hearing: 15th November 2005
Ruling: 18th November 2005

Counsel: Mr. P. Bulamainaivalu for State
Ms R. Senikuraciri for 1st Accused
Mr. G. O’Driscoll for 2nd Accused
Ms B. Malimali for 3rd & 4th Accused
Ms U. Fa for 5th Accused

RULING

The 4^th Accused objects to the admissibility of his statement to the police, signed on the 17^th and 18^th of February 2005 and to the admissibility of his charge statement, signed on the 18^th of February 2005. The grounds of his objection are that he only made a statement to the police after he was promised immunity from prosecution by Inspector Luke Qionibaravi of the Samabula Police Station, and that he signed as a result of unfair and oppressive behaviour on the part of the police.

All admissions made to persons in authority must be shown b the State to have been made voluntarily without oppression or unfairness, and without any breaches of the rights of suspects under the Constitution. The standard of proof is of proof beyond reasonable doubt. In assessing whether or not a confession was made voluntarily, the court may consider whether the suspect was induced to confess by a promise or hope of advantage held out to him by a person in authority. Promising a pardon, or immunity from prosecution, or any benefit in exchange for a confession will lead to the exclusion of the confession.

In this case, the defence position is that a very clear promise of immunity and of police assistance in other cases involving the Accused, was made by Inspector Luke, to the Accused before and during his interview. If this is accepted, the admissions would be rendered inadmissible.

The 4^th Accused was brought to the Suva Magistrates’ court for another case, on the 17^th of February 2005. He was granted bail. When he walked out of the courtroom, he was promptly arrested by police officers from Samabula Police Station and taken to the Station for questioning. At that stage, the police had been told by the 3^rd Accused, that one “Pau” had been present at the alleged incident in Fulaga Street on the 7^th of January 2005.

The 4^th Accused was interviewed at 12.22pm by Constable Samuela Nanusu. The interview was witnessed by Corporal Epeli Vamosi. The Accused was cautioned, and almost immediately began to confess to being with others in a robbery at Fulaga Street. He denied taking part in the killing of the deceased, but described how the robbery took place.

The interview was suspended at 1.10pm (for 1 hour and 15 minutes) for lunch, at 3.05 pm (for 10 minutes) for a cigarette and water, at 3.55pm (for 3 minutes) for water, at 4.21pm (for 2 minutes) for water and at 6.12pm (for 12 minutes for another cigarette). At 7pm, there was a break for dinner and a rest. At 8.20am the next day, the interview resumed, and continued until a reconstruction of scene at 9.20pm. At 10.50am, on the 18^th of February, the Accused met with his wife. The interview was concluded at 12.30pm on the 18^th of February. He was charged half an hour later, by Constable Alipate. After that charge, he said:

“I admit the offence I have been charged in. I was only invited by my friends to go and steal from the shop and not to kill the owner of the shop.”

The Accused was taken to Valelevu Health Centre on the 18^th of February at 2.45pm. He told the doctor that because he was thinking about his family, he had not slept well for 2 days. He was diagnosed as having headache (migraine) and insomnia for which paracetamol was prescribed.

The evidence of Inspector Qionibaravi was that he was a senior officer in charge of the investigations. It was on his instructions that the 4^th Accused was arrested. He said that the Accused asked to see him after he was charged. He asked the Inspector if he could be made a State witness. The Inspector replied that he had no powers to make any such decision and that the Accused should raise the matter with the court and the DPP.

The Accused gave sworn evidence, and said that before and during his interview, promises were made to him by Inspector Qionibaravi that he would be made a witness and that the police would help him in a pending bench warrant case. On that basis, the 4^th Accused agreed to make a statement. However, the police did not write down what he said and there are portions of the interview which are untrue. He said that at the time of the interview, he was suffering from insomnia and a headache and that he only signed the statement because of the inducements made to him, which he believed.

Of course, if the Accused’s evidence is accepted, the interview and charge statements would be rendered inadmissible, on the ground that the inducement resulted in a lack of voluntariness.

However, in this case I accept the evidence of the police witnesses that no such promise had been made. I further accept that the Accused’s lack of sleep and headache were understandable consequences of a concern arising from arrest and the question. I do not consider that the circumstances of the questioning were oppressive. The Accused was interviewed over a reasonable period of time. There were many breaks for refreshment. He was able to rest overnight, and he did not complain to the interviewing officer when his interview resumed the next day, that he was suffering from a headache.

Of course, what weight is to be put on the contents of the interview, is a matter for the assessors. However, I note that the statements are not entirely inculpatory because he is alleged to have told the police that he never intended, nor planned the death of the shopkeeper.

In all the circumstances, I am satisfied beyond reasonable doubt that the Accused was treated fairly and without oppression, and that his statements were given voluntarily. They may be led in evidence.

Nazhat Shameem
JUDGE

At Suva
18^th November 2005