State v Fong [2005] FJHC 718; HAC010.2004S (15 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC010 OF 2004

THE STATE

V

PATRICK FONG and 4 Others

Mr Valenitabua for Orisi Suguta [Accused 2] and Setareki Pauliasi [Accused 3]
Manasa Salabula [Accused 4] in person
Clifford Talemainiukini [Accused 5] in person
Mr D. Toganivalu for the State

1-4, 7-9 February 2005
15 February 2005

Gates J

RULING

Trial within trial; voir dire on confessional statements; test for admissibility; burden on prosecution to prove voluntariness beyond reasonable doubt; allegations of extra-judicial punishment administered upon apprehension, arrest, and upon arrival at police station; later threats to repeat assaults; whether reasonable force used to subdue escaping suspect; throwing of stones unlikely to be a reasonable means; lack of explanation by State for injuries; "softening up" procedures in interrogation unacceptable in a civilised democratic state; refusal of bathing opportunity, change of clothes, access to visitors; refusal to allow visit to hospital; gravity of crime does not change canon of police behaviour; freedom from torture section 25(1) Constitution; UDHR Art. 5; ICCPR Art.7; Robben Island Guidelines.

[1] This Ruling is not to be published by anyone including the media until the conclusion of the trial.

[2] Patrick Fong [Accused 1] pleaded guilty on arraignment. In this trial therefore there remain 4 Accused. I shall refer to them by their first names. They are Orisi, Setareki, Manasa and Clifford. All 4 stand charged in the information with 2 counts of robbery with violence, one count of unlawful use of a motor vehicle, and Orisi is also charged with resisting arrest. All 4 have pleaded not guilty to these charges.

[3] On the ground of involuntariness, all four Accused challenge the admissibility of confessional statements allegedly made by them to the police.

[4] It is trite law that for a confession to be admissible in a court of law it must be shown to have been made freely and voluntarily. In Warickshall’s case (1784) 1 Leach CCR 263, 4th Ed., Eyre C B said:

"a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and, therefore, it is rejected:"

[5] Long ago in Taylor’s Law of Evidence (8th Ed. Pt 2 Ch.15 s.872) it was written:

"The material question consequently is whether the confession has been obtained by the influence of hope or fear; and the evidence to this point being in its nature preliminary, is addressed to the judge, who will require the prosecutor to shew affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement, and who, in the event of any doubt subsisting on this head, will reject the confession."

[6] This passage was adopted as a correct statement of the law by a 5 judge Court of Appeal in The Queen v Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12. For voluntariness to be satisfactorily proved, proof must be provided to the standard of beyond reasonable doubt: Callis v Gunn [1964] 1 QB 495; DPP v Ping Lin [1976] AC 514;

[7] The defence allegations fall into two categories. It is said the Accused were subjected to extra-judicial punishment upon apprehension and secondly, that they were further assaulted and threatened prior to and during interviews. The circumstances of arrest were different in each case.

[8] After the assessors were sworn in, the parties agreed in their absence, that the trial within a trial should take place first before counsel for the prosecution were to open the case.

[9] Many serious allegations of professional misconduct are raised here against the police officers concerned. This is not a trial of the officers however. Nor were they, nor need they have been, on fair notice of such. This part of the proceedings is concerned solely with the admissibility or inadmissibility of the Accused’s statements.
Orisi

[10] In his evidence Orisi said he was returning to a funeral gathering on 15 January 2004. He was travelling in a taxi driven by Patrick Fong [Accused 1]. The driver said he had to get something from Wailoku. Orisi was aware at Wailoku that they were being followed and chased by police vehicles. At Wailoku the vehicle stopped and the driver told him to run for it. He did so.

[11] The police had torches and iron rods. They threw stones at him. He was standing in a stream. He says he was dunked in the water, punched both in the water and on the bank and kicked. He was brought to the vehicles and under the vehicle lights he was hit on the leg with iron rods. At first he stood, and then lay on the ground whilst the beating occurred. He received injuries, (2 cuts) to his forehead, swollen legs, body pains to the chest, arms and knees. He was put inside a vehicle.

[12] Other officers turned up for the search remaining for the other occupants of the taxi, and Orisi was pulled out of the vehicle and beaten again. He was punched on the ribs, stomach, and lower legs. He was taken to Samabula Police Station. When he was out of the vehicle an officer hit him on the inside of the knee with a baton. He was dragged into the station over the gravel carpark. He could not walk. He was kicked in the ribs and punched on the face. The dragging over the gravel surface injured his knees.

[13] At the same time some police officers stomped on the back of the knees. Others beat him on the ankle and side of the foot. Orisi blacked out in the cell and became unconscious. He was questioned later whilst still in the cell. One officer pulled his arm so that his face was brought close to the bars whilst another officer punched his face. The officers did not accept his explanation as to why he was in the taxi.

[14] On the next day, 16 January 2004, the Accused was taken to hospital. This step apparently was taken at the instigation of a Senior CID officer. Orisi said his visible injuries were to the left forehead and left back of his head, a swollen jaw, a black eye, and to both knees. He was limping at the time. He received treatment, an injection, and dressing to both knees.

[15] Though he was the patient, he was not given a copy of a medical report. Nor did he see the police, who accompanied him, being given a report. He asked for one. It was not given. If there were a medical report contemporaneously compiled, its absence in evidence has not been explained by the State. Why was there no medical report?

[16] It was suggested that the injuries were related to the inevitable injuries likely to be caused in the chase prior to and on apprehension. No witness to that apprehension has stated that he saw such injuries at the time.

[17] Indeed none of the police witnesses have said that they even noticed any injuries on Orisi during the time he was in custody at Samabula Police Station or at CPS. Nor were the injuries and their cause dealt with in the course of two caution interviews and two charge statements. He was not questioned as to how he came by the injuries, nor were they ever referred to. If the injuries had been caused without impropriety in the course of the chase, a suspect prepared to admit his part in a robbery might equally well be prepared to admit how he came by those injuries and to assert that the police had played no inappropriate role in their infliction.

[18] Once back from the hospital, Orisi was warned that he was to make things easier for the officers by admitting everything or else they would cause more injuries. They would add on to the injuries already made. The assaults started again. He was punched in the stomach in the presence of several officers. Orisi said as a result of what had happened he did make admissions. He said they wrote everything and he signed. It was not a question and answer session.

[19] He was then taken to Samabula and there interviewed. He was reminded of what had happened to him. He was told if he co-operated he could have a change of clothes and be allowed a bath. This promise was made on 18 January 2004, 2 full days after apprehension in the early hours of 16 January. It was not till the third day of detention that Orisi was permitted a bath, that was on the Monday before he was brought to court, on 19 January 2004.

[20] Defence solicitors may well have thought that a medical report would have been available to confirm the specific injuries on Orisi. We now know otherwise. Orisi was sent by his solicitor to see Dr Asaeli Matairavula on 4 February 2004. A report was compiled. The doctor was observing injuries perhaps 17 days after their infliction. He noted an abrasion to the front left knee, haematoma to the back of the skull, an injury to the left side of the jaw and pain and swelling over the lower back. He thought the swelling injury to the left jaw had healed. The injuries he concluded were blunt object injuries. The doctor did not notice an injury on the right knee, or behind the knee. He considered the abrasion could have been there for 1 to 2 weeks. Obviously Dr Matairavula was in a less advantaged position than a doctor at the CWM hospital who had examined and treated Orisi on 18 January. I accept that Dr Matairavula lends substantial support to Orisi’s assertion that he had injuries on his body on 16-17 January 2004.

[21] Manasa [Accused 4] confirmed during his evidence that he had seen Orisi at CPS at the time with injuries. He said "Orisi had deep holes in the knees, a deep gash, Orisi’s jaws big, swollen, bruises on back, black eye on left eye."

[22] Orisi’s brother-in-law, Paula Halaiwalu visited Orisi at CPS on the Saturday. He went with Orisi’s father. After a 2 hour wait, they went upstairs and they saw Orisi. Paula said Orisi had a swollen left eye, and both knees were injured. His face was swollen and there was blood on his clothes. In answer to his enquiry, Orisi said police had done this. Though Manasa and Paula had good reason to exaggerate their accounts in favour of Orisi’s case, I found both of them credible witnesses on this issue. I accept their simple and straightforward accounts.

[23] The corporal at the scene of the arrest near the fence, said there was a scuffle. He denied all the defence allegations of assault. He could not account for the swollen jaw.

[24] The officer who apprehended Orisi in the water said in the struggle that he himself had suffered blisters to his palm from the rocks in the pool. But he said Orisi told him that he was already injured on the knee. This injury apparently Orisi did not show him. I reject that explanation.

[25] The interviewing officer said he usually looked at the condition of interviewees. He could not recall any injuries that day, 17 January, and no complaint was made to him of any injuries. The statement "I cannot recall" is a good deal less positive than "I did not see" or "there were no injuries." A similar response was made by the charging officer "I cannot recall if he had any injuries." But another interviewing officer (from the second interview) said "I cannot positively state he had no injuries."

[26] If an interviewing or charging officer did observe injuries, it would be appropriate to question the suspect as to how he came by them. The questions and answers should be recorded.

[27] Orisi did not say that any of the stones thrown at him hit him or injured him. I accept that stones were thrown at him when he was pursued to the water. The use of stones was not a reasonable use of force here. The pursuers were many. It is doubtful if the throwing of stones at a suspect being pursued could ever be a reasonable use of force.

[28] I am satisfied on the evidence Orisi was assaulted when apprehended and arrested by the police, and that he was assaulted again at Samabula Police Station upon arrival, and in the cells. I am of the view that he was intimidated so that his statements were involuntary. Other treatment meted out to him helped to create a climate of fear, such as the denial of bathing opportunity and of change of clothing extending for 3 days. It follows that I have not had proved to me beyond reasonable doubt that any of the statements made to police by Orisi were voluntary. All are excluded from the main trial therefore.

Setareki

[29] Setareki said he was arrested at Tawake Street on Friday 16 January 2004 at 3 am. He said a police vehicle came looking for someone and he stood up and ran. He was caught. He said he was then assaulted with a baton. He was injured. He was assaulted again at Samabula Police Station. He was not taken to hospital, though he requested it. He was assaulted and threatened at CPS. He said he signed his interview because he was forced.

[30] On 19 January 2004 he was seen by a doctor at the Suva Private Hospital. Dr Joseph Tuitoga’s report was exhibited, properly without objection by Mr Toganivalu, for the State, since the doctor was presently overseas. Dr Tuitoga stated in his report that Setareki:

"has soft tissue injuries and multiple abrasions to the head, face, chest, back and legs. X-Rays of his skull, chest and left knee ruled out any bony injuries. He has been treated with oral analgesics to help relieve pain, strapping tape for his left anterior chest wall, voltaren gel to apply topically and antibiotic cream to apply over the abrasions."

[31] The extent of these injuries has not been satisfactorily explained by the State. Clearly he had the injuries at the time of his detention and yet he was denied the opportunity of going to the hospital for examination and treatment. Why?

[32] Setareki said he was hit with a baton upon arrest. He was injured with a cut at the back of his head and was for a while unconscious. He had bruising on his right arm, and right cheek. He was injured in his left ribs from being kicked on the ground and had a bruise on his left knee. He was further punched at Samabula Police Station. The interviewing officer told him if he did not sign his statement he would be punched again. They threatened to pour boiling water over him and put chillies on his backside. Setareki said he was forced to sign. Some of the questions recorded they had asked, but some they had not.

[33] At one point he was stripped to his underwear and hit with a broken chair leg, then slapped on the face and punched in the chest. I observe at this point that the removal of clothing from a suspect, presumably to make the interviewee feel defenceless and vulnerable, as ‘a softening up’ process prior to or during interrogation, is an improper and unacceptable technique. After the Abu Graib revelations, it is important to make clear such techniques are not to be tolerated in a civilised democratic state. State enforcement officers are to desist from such practices if hitherto thought appropriate and useful.

[34] The arresting officer said he tackled Setareki because he ran away. He denied any punching or kicking, and denied any further assault at Samabula. The interviewing officer at CPS said he could not recall if Setareki had any injuries. Similarly the charging officer could not recall any injuries on him.

[35] Setareki’s mother visited CPS on the Saturday 17 January 2004. She was not allowed to see him that day. She returned on the next day, Sunday. It was obvious to her he still had not had a shower. She took his food. She noticed he was limping. His long trousers were blood stained. The right side of his face was swollen. She said he looked dirty, in pain, and he hardly talked. He told her he had been beaten. She spoke to him for about 15 minutes.

[36] I accept the injuries as noted by Dr Tuitoga. I find that they were caused by the police upon Setareki’s arrest and at the station. Though it is possible for him to have been caused some legitimate injury upon being apprehended and from being tackled to the ground, I note the tackling officer attracted no injury to himself in the process. One of the officers said the arrest occurred at Deenbandhu Ground at Indian College, which was more likely a softer surface than a pavement. Whichever was the surface, such an arrest does not account for the majority of the injuries here.

[37] I note he was denied access to the CWM Hospital, and I find that to have been deliberate. He was injured improperly in police custody. He was punished for having run off, and then assaulted that he might confess. I find his statements to the police not to have been voluntary. They are excluded from the main trial.

Manasa

[38] Manasa said he was arrested at his home. He was about to go to work. His brother was outside. It was 17 January, a Saturday. He was upstairs. He heard a knock two times. Perhaps because he was slow to answer, or because as one of the police officers said he went upstairs, the police kicked the door open. There were between 7-10 police personnel involved and they surrounded the house.

[39] The leading detective came in, said Manasa, and punched him on the mouth. Manasa fell down. He was kicked on the back when he was on the ground by other officers. They held his shirt and pushed him on the chin whilst they asked him about a taxi meter. He was able to make answer and denied it was stolen.

[40] He was dragged outside and made to stand up. He had a cut on his mouth, perhaps a bruise to the right eyebrow temple area. There is no medical report in Manasa’s case. The police did not take him to hospital, nor did he go to a private doctor once on bail. He has conducted his own defence and will not have been well equipped to present his case. I bear that in mind.

[41] At CPS he said the interviewing officer used violence on him and smacked both his ears. This action he said did not injure him. He was taken to Samabula Police Station. After he had said he knew nothing about the two robberies, another officer hit him on the back of the neck with the blunt side of a cane knife. He was hit on the bone at the middle of his back, and on the top rear part of his head, again with the blunt side of the cane knife. There was no lasting injury to the neck, but he was bruised on the back, and received a cut to his hand. He was told he had done the robberies and he was punched on the lower part of the right ear lobe. It later became infected whilst he was remanded. He could not eat well and could only drink tea before it cleared up.

[42] He said he gave the answers in interview because of what happened and because he saw the others, Tamani, Pauliasi and Esava badly injured at CPS. He was not allowed to consult a lawyer or Legal Aid, which they said was closed. The Legal Aid Commission has weekend and outside office hours emergency telephone numbers however.

[43] Manasa called his brother Simione. He saw the assault inside the house, and that Manasa had a cut on the mouth which was bleeding. He saw the punch which felled Manasa to the ground. He said it was just one punch. It was the police who picked him up. He was not sure if it was the left or right lip.

[44] Manasa called his wife Venisita. She visited Samabula on the Saturday. She saw a police officer hitting her husband with a cane knife. She was not allowed to see him that day. She looked from near the gate to the back of the carpark area, some 20 ft. away. She did not approach her husband and could not notice any injuries on him that day.

[45] But at the cell block on Monday she could see her husband’s lips were split. They were not bleeding then. The lips were red looking, swollen, and they looked big she said. He had another injury, to the back of the head near the top. It was not swollen but it was a deep cut. She saw a swollen bruise to the back of his ear behind the lobe.

[46] Manasa’s wife did not exaggerate her evidence in any way and I found her a careful and credible witness. I accept that she noticed these fresh injuries on her husband. I accept also the manner in which Manasa stated he had come by them.

[47] The injuries were inflicted in an entirely unnecessary way. "To be tough on crime" does not carry with it a licence to break civilised professional standards of police law enforcement and investigation. Softening up procedures are impermissible and fall below such standards.

[48] Apart from denial of the actions of which Manasa has testified, the State has failed to account for his injuries. I find his statements to have been involuntary and they are all excluded from the trial.

Clifford

[49] Clifford said he was wanted on a bench warrant. So he went to see a State Prosecutor about it on 6 February 2004. The file was with the police prosecutors and nothing could be done about it that day.

[50] In the evening he was going to a night club. He was with his brother-in-law. It was a Friday. When he was at Cumming Street near the Terry Walk Police Post he was approached by an officer who knew he was a warrantee. He was arrested and taken to the police post. A civilian officer took him into the post and told him to walk down the steps into the lower room.

[51] As he did so, that officer punched him at the back of his head. He fell down. The officer told him to get down on his knees. Clifford tried to explain his situation concerning the bench warrant. The officer started to punch him and hit him with a thick stick. He did not explain why. He was hit in the middle of the back. It was painful but he was not injured.

[52] The officer told him to put both his hands behind his back so as to be handcuffed and searched. Everything was taken out of his pockets and his shoes were removed. Then the officer punched him directly on the face. Blood dripped down his face from his nose which was cut. He was taken by vehicle to CPS.

[53] The same officer kept punching him on his face at CPS. He was asked about the robberies. He was told to get down on his knees. He was assaulted by two CID officers to the right of the counter. When questioned by one of the other officers, they said that Clifford was one of the robbers. He was hit again between the eyes on the cut mark on the nose.

[54] He was taken to Samabula, and assaulted there. He was told to admit to the robberies. He asked to be taken to hospital. On 10 February he was taken to and examined at the CWM. But this was only after he had asked the Magistrate to order it. On the Sunday 8 February he had been punched in the cell on the side of the ribs and on the body. He felt the assaults would continue, so he admitted.

[55] The doctor who saw Clifford at the CWM was Dr Charles Kumar. He saw him in the A&E Department at 6.15 pm on 10 February 2004. He noticed a small laceration on the bridge of the nose and noted the patient had a headache in the right temporal region. He was put on antibiotics and anti-inflammatories. According to the x-ray, there was a slight fracture of the nose, described as "fracture through nasal bone, slightly depressed. Nasal septum midline."

[56] The doctor in his evidence said he thought the injury could have occurred in the last 12 or 10 hours." No such estimate was given on the medical report form at Part B section 13(b)(ii) however which deals with age of injury. I find the doctor may be inaccurate in his estimate. I accept the account given by Clifford of how he came by that nose injury. It was supported by Jale Taleitala who saw him on the Saturday at Samabula Police Station. He noticed Clifford looked weak, and had a fresh cut on the nose. They spoke together for about 45 minutes. I accept Jale’s evidence that the nose injury was there on the Saturday, and not there on the Friday when he last saw him.

[57] PC Uate Vakatalai who arrested Clifford in Cumming Street said he noticed a fresh cut on Clifford’s face. He did not say positively that the cut was on the nose when he first approached Clifford in Cumming Street. This witness was distinctly uncomfortable about this issue. He said "I would not know if he was assaulted inside the post." This evidence was hard to believe in view of his own close proximity to the post, 5 steps away. He said he did not hear anything.

[58] I cannot accept this witness’s evidence if it lends support for an injury having occurred prior to entering the police post. I believe this officer was embarrassed by the improper conduct of another officer and was too fearful of telling the truth.

[59] I find Clifford was assaulted and injured in police custody at Terry Walk, CPS and Samabula. I find his statements to the police to have been involuntary and all are ruled inadmissible in the main trial.

Final observations

[60] It might be said that any policeman whether on the beat, on mobile patrol, or involved as detectives in the investigation of crime knows by virtue of training and instinct what is right and what is wrong in the handling of suspects.

[61] The gravity of the crimes investigated does not change the canon of police behaviour. There is no lawful licence ‘to soften up’ persons held within police custody.

[62] The Constitution does not allow for exceptions. Section 25(1) clearly sets out the freedom from torture:

"Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment."

[63] There is no right for the police or other enforcement agencies to withdraw facilities for bathing or for changing of clothes for several days on end, with a view to demoralizing detainees till they provide "information". Detained persons who do not know their rights similarly are not to have their visitors unreasonably turned away [section 27(1)(d) Constitution].

[64] It is significant and alarming in this case that the police did not, save in Clifford’s case, take any of the injured detainees to hospital. They only took Clifford after he was charged and taken to court, because the Magistrate himself had ordered that he should be so taken. Though Orisi was taken there was no medical report of his injuries. I can only draw an adverse inference from the lack of any explanation for that omission. Orisi and Setareki, fortunate enough to be represented by an alert solicitor, were taken to private doctors. Manasa not so fortunate, and not represented, therefore had no medical confirmation or indeed treatment for his injuries. I conclude that having administered extra-judicial punishment first and violence to extract confessions later the police sought to cover their tracks by seeing the injuries were not properly examined, treated or documented.

[65] A great body of international instruments has already been adopted dealing with the rights of detainees and prisoners. The protection from torture and cruel inhuman and degrading treatment was provided in Article 5 of the Universal Declaration of Human Rights 1948 and Article 7 of the International Covenant on Civil and Political Rights 1966; see too:"Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 6, Standard Minimum Rules for the Treatment of Prisoners, Article 31, 32(2), Code of Conduct for the law enforcement officials, Article 3.5"

[66] In the Robben Island Guidelines States are urged to criminalize torture and not to allow any justification for it [Art. 4, 9, 10].

[67] Conduct here fell well below the standard to be expected in a modern civilised State. The idea that suspects can be meted out punishment prior to any investigation procedures being conducted is unacceptable behaviour. Similarly the extraction of admissions by violence or cruel treatment at police stations is not to be tolerated. Perpetrators of such acts can expect if convicted severe penalties of imprisonment before the courts.

A.H.C.T. GATES
JUDGE

Solicitors for Accused 2 and Accused 3: Valenitabua Esq., Suva
Accused 4 in person
Accused 5 in person
Solicitors for the State : Office of the Director of Public Prosecutions, Suva