State v Tawake [2005] FJHC 502; HAC0029.2004L (2 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0029 OF 2004L

STATE

v.

ALESI NALAVE TAWAKE (1)
KELERA MARAMA (2)

Mr. N. Nand for the State
Ms. J. Nair for the Accused 1
Mr. M. Naivalu for the Accused 2

EXTEMPORE RULING ON TRIAL WITHIN TRIAL

Each accused objects to the admission of their interview by the police on the 18^th and 19^th June 2004 into evidence.

The grounds of objection as expressed by their counsel are that:

1. Both accused were assaulted by police officers before and during the interview.
   

2. Both accused were threatened.

3. A false promise was made to the 1^st accused by police officers.

The grounds upon which a confessional statement can be excluded are either that it is not voluntarily made or that it was obtained unfairly and in breach of the rights given to persons in police custody under section 27 of the Constitution of the Fiji Islands.

In this matter, it is only the issue of voluntariness that requires consideration. In relation to voluntariness, breaches of the Judges Rules are relevant but do not determine what is voluntary. The real question under principle (e) of the preamble to the Judges Rules is whether the statement is voluntary “in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression”. Oppression is said to be something, which tends to set and has set that freewill which must be exist before the confession is voluntary.

Some assistance can be gained from various authorities. In The Queen v Thompson [1893] UKLawRpKQB 74; (1893) 2 Q.B. 12 Cave J. said at p.18:

“I would add that for my part I always suspect these confessions, which I suppose to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; - a desire which vanishes as soon as he appears in a court of justice.”

One might think little has changed since 1893.

In Cleland v The Queen 151 CLR at p.15 Murphy J. said:

“The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, of it, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confession as suspect for involuntariness (even if this was not asserted by the accused because he denies making it).

If the accused within custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspicion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement.”

Also in Cleland Deane J. at p. 18 said:

“At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made....If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him.”

In Collins v R [1980] FCA 72; (1980) 31 ALR 257 Brennan J. cautioned that it was important to ensure that a court does not tease out some fanciful meaning from or attribute some extravagant effect to what is said by a person in authority. His Honour went on to comment on the observations of Lord Morris in DPP v Ping Lin.

It follows therefore the principles governing the exclusion require the asking of the following questions:

1. Was the interview and charge statement given voluntarily?

2. Was it given in oppressive or unfair circumstances?

In considering these questions, the onus is on the prosecution to prove beyond reasonable doubt, voluntariness, lack of oppression and no breach of the Constitution and if there has been a breach to show that it was inconsequential and did not result in unfairness or oppression.

Evidence has been given before the court by each of the interviewing and witnessing officers and by those other police officers who had contact with the accused persons following their arrest and in the course of their interview.

With respect to the 1^st accused, the interview commenced on the 18^th June 2004 and concluded at 10.35pm on the 19^th June 2004 with various breaks taking place, including a break to rest.

Without canvassing the evidence given by each of a police witnesses, it is perhaps suffice to say that all witnesses, they being the persons to whom I referred, denied that any assaults, threats or false promises were made to either accused. All police officers in their evidence also attested that no assault, threat or false promise was made or given in their presence.

In addition to the police officers, evidence was also been given by Mere Fong, who was brought in to confront the 1^st accused. Following confrontation, the 1^st accused changed the version of events she was giving to police officers. Prior to Mere Fong’s confrontation, she had been suggesting that Tomasi was a person involved whereas after that confrontation, the 1^st accused then named the 2^nd accused and gave a detailed version of events.

The most relevant evidence for the prosecution is the evidence of Dr. Shareen Aiyub, the medical officer of Nadi Hospital who examined both of the accused on the 20^th June 2004 at about 10.00am. It must be born in mind that the records of interview carried out on the 18^th and 19^th June 2004 and the medical examinations took place the following day.

The doctor gave evidence that she asked each of the accused for a history for two reasons, to gain a history and to establish their soundness of mind. She then asked each of the accused to take off all their clothes and she then conducted a physical examination to both accused. She made observations of their gait and said they were walking normally and all movements were normal. She found with respect to both accused that there was no evidence of any physical or obvious injury with the exception of a cut to a finger of the 2^nd accused which the doctor describes in her medical officer’s report.

The doctor tells the court that others were present throughout the examination with respect to the 1^st accused. There was a female police officer and a nursing assistant and with respect to the 2^nd accused, there were two female police officers and a nursing assistant.

The doctor says that no complaint was made to her about the conduct or behaviour of the police officers prior to the examination.

The record of the Magistrates Court at Nadi shows that the accused were taken before that court on the 20^th June 2004 when they were remanded to the 21^st June 2004. The record shows that on the 21^st June 2004, the Learned Magistrate asked both accused whether they had any complaints against the police from the time of arrest until that day and they both said no.

The 1^st accused has given sworn evidence and being subjected to cross-examination. The 1^st accused says that she was assaulted and threatened effectively from the time of her arrest until the time, which she had changed the version of events that she has given to the police officers in the course of the record of interview. She names various officers who did various things to her: kicking, punching, slapping her and threatening her including a false promise allegedly made by the female police officers.

As I have said, all of these allegations were put by Learned Counsel to the police officers who gave evidence.

The 1^st accused says that she didn’t tell a doctor of any complaints or described any injuries to the doctor. She did this because she was told by police officers. Similarly she says she didn’t tell the Learned Magistrate when asked because she was threatened by police officers.

The 2^nd accused also has given sworn testimony and being subjected to cross-examination. She similarly makes allegations of having been hit on the back and the soles of her feet on the 19^th June, having been punched in the back, slapped and threats made to her. Again, both counsel put all the allegations to the relevant police officers when they gave their evidence and they denied.

The 2^nd accused says that she did not draw the doctor’s attention to the injuries as a result of threat by police officers and similarly did not honestly answer the question to the Learned Magistrate due to a threat by police officers.

I find it difficult to accept that if the assaults as alleged took place that there wasn’t some evidence of those assaults on either of the accused when they were medically examined on the 20^th June 2004. In this regard, I accept the evidence of the doctor.

There will appear to have been ample opportunity for complaint to be made to the doctor and/or the Learned Magistrate by one or both the accused.

The burden rests with the State to prove beyond reasonable doubt that the confessions were voluntarily made and that there was a lack of oppressions and that there was not breach of the Judges Rules.

I have difficulty for the reasons stated in accepting the version given by the, 2^nd accused and accordingly, I accept the evidence of the relevant police officers in particular the interviewing officer as to the events of the 18^th and 19^th June 2004. Accordingly I am satisfied beyond reasonable doubt that the caution interviews with respect of the 1^st and 2^nd accused were voluntarily made, as were the charge statements and were made in circumstances of fairness to both accused and accordingly admissions contained in those documents are found to be admissible.

JOHN CONNORS
JUDGE

At Lautoka
2 September 2005