State v Basa [2005] FJHC 45; HAC0034x.2004S (2 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0034 OF 2004S

STATE

v.

SAKIUSA BASA

Counsel: Ms. K. Bavou for State
Accused in Person

Hearing: 28th February – 2nd March 2005
Ruling: 2nd March 2005

RULING

The accused objects to the admissibility of his caution and charge statements to the police made between the 1st and 4th of September 2003 at the Central Police Station. He objects on the ground that he was assaulted by several police officers in Colo-i-Suva on the night of the 3rd of September, and forced to sign a fabricated and already-prepared caution statement and a similarly prepared charge statement on the night of the 3rd of September.

As a matter of law confessions made to persons in authority are only admissible if they have been shown by the State to have been voluntarily made without oppression or inducements. Further the State must show that in the obtaining of the confession there were no breaches of the accused’s Constitutional rights, and if there were such breaches, that there was no consequential prejudice to the accused. The Court must be satisfied of voluntariness, lack of oppression and prejudice beyond reasonable doubt.

The prosecution, in the trial within a trial called a total of 7 police officers as witnesses. Their evidence was, that on the 1st of September 2003, the accused was arrested at Valelevu Police Station where he had reported for extra-mural duties. He was a suspect in the Western Union robbery in Suva. He was held in the cell awaiting the arrival of Corporal Jale, who headed the Strike Back team. He was brought to the Central Police Station for questioning. He was questioned in the Crime Branch Office. The interview commenced at 12.30pm on the 1st of September at 12.30pm. He was given his rights to counsel and was cautioned. He gave an alibi, saying that between 9am to the evening on the 30th of August 2003 he was at home until 11am, when he went to watch rugby. The interview was suspended and the accused locked up in the cell at 4.30pm. The police checked his alibi and spoke to his parents. The interview resumed at 7.45pm and he was told that they had found his alibi to be incorrect. He then made a full confession. The interview was suspended for dinner between 8.20pm to 9.20pm, and for a rest at 10.30pm. It resumed the next day, that is the 2nd of September 2003 at 9.30am. He was cautioned again.

The interview was next suspended at 1.30pm for lunch. It resumed at 2.30pm. At 3.45pm they suspended for reconstruction and resumed at 5.30pm. The interview concluded at 8.45pm on the 2nd of September.

He was then charged at 9.55pm by Cpl. Seniloli. He made a statement admitting the offences charged, and saying he had received $4000 as his share of the proceeds of the robbery. He was then remanded in custody until 9.30am on 4th September 2003 when he was taken to court.

The accused in cross-examination, suggested to five officers, PC Driso, Sgt. Seniloli, Cpl Viliame, Cpl Laisiasa and IP Jitoko that they took him to Colo-i-Suva in a car, to a feeder road, stripped him of his clothes handcuffed him and made him kneel in front of the vehicle. He suggested that they beat him continuously and that two of them hit him on his knee caps with their truncheons. They then took him back to the Central Police Station and tortured him again until he finally agreed to sign confessional statements which had already been prepared. These assaults he said took place on the night of the 3rd of September. These allegations were emphatically denied by the police officers. The prosecution also tendered the relevant cell book and station diary entries to show when the accused was locked in the cell and his physical condition when he was there.

The accused chose to give sworn evidence. He said he only signed the statements because of the torture by five officers, that he sustained serious injuries as a result of the assault and that he asked the police to take him to a doctor but that they advised him to ask the magistrate in court instead.

He did not fare well in cross-examination. He agreed that his initial complaint had been against 8 police officers including one Cpl. Eremasi, Constable Gyannend and Cpl. Malakai but that in fact only the five in the trial within a trial had assaulted him. He said firstly that he told his lawyer about the assault and his lawyer asked the Chief Magistrate to defer plea to allow the Accused to be medically examined, but he later said his lawyer forgot to tell the Chief Magistrate about the need for medical examination. He said he only got medical attention at Korovou Prison, but had no medical report to show for it. Certainly the court record shows no sign of any complaint of assault.

The Accused called two witnesses in his defence. The first was Iowane Tusiga, a serving prisoner. He said that on the 3rd of September 2003, he was escorted from the cell block at the Central Police Station, to the Crime Office by an escorting officer. In the corridor outside the Crime Office, he saw the Accused in the middle of a circle of 5 police officers, being assaulted. The Accused was sitting only in his underpants on a chair. He was blindfolded. He named the five officers as IP Jitoko, Sgt. Seniloli, PC Driso, Cpl. Viliame and DC Laisiasa. He later in his evidence also named one Apakuki.

In cross-examination, he contradicted himself on several occasions, saying firstly that the Accused was not interviewed at all on the 1st of September, and secondly that he was interviewed on the 1st of September. He said he was sure about this because he had read the Accused’s disclosure in this case. Later he said, that one Jo Waqaivolavola had shown him the Accused’s disclosure. Then he said he hadn’t read the disclosure at all. This witness was not impressive, either in substance or in demeanour.

The Accused also called Usaia Wacabai, a clerk interpreter from the Suva Magistrates’ Court, who gave evidence that on the 4th of September 2003, he had seen the Accused with bandages and injuries, being carried into the dock from the cells. He said that the Chief Magistrate had ordered the police to have him medically examined. However, in cross-examination, it became clear that the witness was in fact referring to some other court appearance on some other date. On being shown the court records in this case, he agreed that he could be mistaken about when the incident occurred. I am satisfied that this witness was an honest witness, but one who was referring to the Accused appearing in court for some other case perhaps later in 2003.

The Accused and State counsel made submissions at the end of the trial within a trial.

I have no hesitation in accepting the police evidence in this case that there was no assault and that the statement was given voluntarily. I accept that all police officers concerned (except for PC Seniloli who was the charging officer) were involved in the investigation of the Accused’s alleged accomplices on the 1st, 2nd and 3rd of September and that they could not have gone to Colo-i-Suva to assault the Accused as alleged. I accept that none of them, as CID officers, had truncheons. Indeed the Accused’s version of what occurred sounds bizarre. Why take him for beating to Colo-i-Suva when, according to him, they also beat him in the Central Police Station? Further, the lack of any injuries on the Accused suggests that there was no assault. Finally, the defence evidence is contradictory in itself. Certainly the Accused made no complaint about his alleged assault to any person until the issue of the admissibility of his confessions, arose in this court.

I am therefore satisfied beyond reasonable doubt that the Accused made his statement freely and voluntarily and without oppression. Although I am troubled by the 3 days in custody, and consider that he should have been taken to court on the 3rd of September, he was not interviewed on the 3rd, but on the 1st and 2nd. The hours of interview were not unduly long, he was given long breaks for rest, food and reconstruction. I am further satisfied beyond reasonable doubt that there were no breaches of his Constitutional rights in the recording of the interview and charge statement.

For these reasons I consider the confession and charge statement to be voluntary and admissible. They may be led in evidence.

Nazhat Shameem
JUDGE

At Suva
2nd March 2005