State v Alifereti - Ruling 1 [2008] FJHC 208; HAC018.2005 & 040.2007 (14 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 018/05 & 040/07

BETWEEN:

THE STATE

AND:

PITA ALIFERETI
PELI KETE DOVIYAROI
JOSEFA TAPELE

Ms A. Driu and Ms S. Puamau for the State
Mr. S. Leweniqila for Pita Alifereti
Mr. H. Rabuku for Peli Doviyaroi & Josefa Tapele

Date of Hearing: 8 - 10 July 2008
Date of Ruling: 14 July 2008

RULING ON TRIAL WITHIN A TRIAL

1. The three accused persons [Pita Koni Alifereti, Peli Kete Doviyaroi and Josefa Tapele] objected to the admissibility of their caution interview and charge statements made to the police between 2002 and 2004. Their objections were notified by letters from respective counsels for the accused, addressed to the court, setting out the specific grounds of their objections.
   
2. The State was given adequate opportunity to respond and prepare their case on that basis.
   

Grounds of Objection

3. The grounds for objection are:
   
   1. For Pita Koni Alifereti:
      

a) That the statements were obtained from him by ‘hope of advantage’ through the holding out of a promise both expressly and impliedly from the conduct of the investigating and interviewing officers;

b) That the statements were obtained in circumstances that were oppressive and compulsive – particularly the duration and length of the interview process;

[Refer to Counsel letter dated 26 June 2008 by Counsel]

2. For Peli Kete Doviyaroi and Josefa Tapele
   
   1. That the statements were made in breach of section 27(1)(c) of the Constitution;
      
   2. The statements were obtained in circumstances that were unfair;
      
   100. That the statements were obtained in circumstances that were oppressive and compulsive;
        
   4. Inducement in the form of threats, pressure, promises and favours, benefits and advantage were offered by the police to the accused.
      

[Refer to letter dated 7 July 2008 by Counsel]

4. The State submits that the statements were given voluntarily and is therefore admissible. It also submitted that there was no unfairness surrounding the circumstances in which the statements in question were provided to the police, for the court to exercise its overriding discretion to exclude them from the trial.
   
5. In support of this submission, the State called 8 police officers who were directly responsible for the interviewing and charging of the 3 accused persons. The evidence of these police officers was given under oath and were subjected to cross-examination by counsels for the 3 accused persons.
   

Relevant Law

6. The applicable legal principles in Fiji with regard to the admissibility of interview statements given to the police by accused persons was established by the Court of Appeal in Ganga Ram & Shiu Charan v R. FCA Crim App. Case No: 046 of 1983, after reviewing the House of Lords decision in Ibrahim v R [1914] AC 599, the Privy Council decision in DPP v. Ping Lin [1976] AC 574 and the House of Lord decision in R. V. Sang [1980] AC 436. It stated the principle as follows:
   

‘It will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the Crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as ‘the flattery of hope or tyranny of fear. Second, even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behave, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or unfair treatment...’

7. The above test must be applied in a common sense way to the facts in their context, as established by the evidence adduced in the trial within trial hearing. In Ping Lin (supra) the Privy Council states:
   

‘I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Sumner (in Ibrahim v R) in a common sense way to all the facts in the case in their context as a jury would approach it if the task had fallen on them’

8. On what may constitute ‘oppression’ sufficient to render a statement involuntary, the English House of Lords, in Priestly v R (1965) 51 Cr App. R 1, described oppression as ‘something which tend to sap, and has sapped, that free will which must exists before a confession is voluntary.’(per Sachs LJ). Whether or not there is oppression in an individual case depends upon many elements, including the length of time intervening between periods of questioning, whether the accused person had been given proper refreshments or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man, or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world: Archibold 39th Edition paragraph 1380.
   
9. Lord McDermott in Priestly (supra) observed that: ‘oppressive questioning is questioning which by its nature, duration or other attendant circumstances (including the fact of custody excites hopes of release) or fears, or so affects the mind of the subject that his will crumbles and he will speak when otherwise he would have stayed silent.’
   

Beyond Reasonable Doubt

10. When the court is making its determination on the issues of voluntariness, the standard of proof that must be satisfied is, beyond reasonable doubt that the statements were voluntarily given to the police. In this ruling I have reminded myself of that. I will now evaluate the facts as adduced in evidence before me.
    
11. The onus of proving beyond reasonable doubt that the statements in questions were obtained voluntarily and fairly is on the State.
    

Evidence

12. In the context of the allegation made by the three accused persons that gave rise this proceedings, the critical evidence were given by ACP Nasir Ali, Detective Inspector Isireli Tagicaki, ASP Marika Taufa, Rev Solomoni Kuruveivali. These were the police officers who interviewed and were the witnessing officers for the interview of the three accused. They were also the officers who were with the three accused persons during their entire interview.
    
13. On the basis of the evidence adduced through the police officers, the following were established beyond doubt and they were not contested by Pita Alifereti when making his unsworn statement and by Peli Doviyaroi and Josefa Tapele in their sworn evidence:
    
    • The interview took place over a period of 2 years 5 months, but not every day. In fact for Pita Alifereti it took 42 days within that period and for an average 3 hours a day; for Kete Doviyaroi 15 days and Josefa Tapele 34 days;
      
    • The days and time of the interview were arranged by the police to suit the other commitments of the accused persons and there were times when the police changed it when requested. There was a schedule for the interview for each accused, who knew in advance the days in a week and the time he was expected to come into Nabua Police Station for the interview sessions;
      
    • The accused are not alleging that they were assaulted in any way nor have their counsels advanced any submission general or specific alleging breaches of the Judges Rules either in their letter to the Court advising the ground upon which they were challenging the interview statements;
      
    • Apart from Kete Doviyaroi and in his case only with regard to the last segment of his interview, they did not complain of the fact that they were not given opportunities to consult a solicitor of their choice at the beginning of their respective interview and during the various stages of the interview. Even this accused when cross-examined admitted that he was aware of his rights to counsel and he did not complain about it;
      
    • It is established that yaqona were served during some of the interview sessions for each. There were no evidence that the 3 accused were affected by this in providing answers to questions being put to them in the interview. There is no evidence tat anyone of the accused persons objected to the drinking of yaqona during those interview sessions.
      
    • It is also established that reasonable breaks were given during interviews of the each of the accused and that refreshments were served.
      
14. I now turn to consider the specific allegation by each accused and the evidence adduced.
    
    1. Pita Koni Alifereti
       
       1. Hope of advantage
          

In support of this allegation Pita Alifereti said the following in his unsworn statement: " as I recall early in February 2002 Mr Nasir Ali and his team of detectives came to my work place and asked that they and myself go to my house to search for my company documents which we did and we went to the house.......I had a chat with Mr. Ali. During our conversation he said to me to be cooperative with them and expose all things that I know of the scam which will help to rope in the corrupt politician and civil servants and at the same time I will be free from prosecution and to become a State Witness..’

The State Prosecutor was not able to cross-examine Pita Alifereti to test his claim above. ACP Nasir Ali in his sworn evidence in chief, in anticipation of the possibility of this claim being made, gave the following answers posed to him by the prosecutor:

‘Q: Did you at any point threatened Mr Alifereti?

A: No my Lord

Q: Did you at any point offer him any false promise or hope that if he assisted willingly in this interview he would not be prosecuted?

A: No my Lord, in fact the very first day he came and he said Inspector I will tell the truth. And I advise him that he will go through the process and whatever you have to mention, you mention it in your statement’

In support of his allegation by Pita Alifereti, gave an unsworn statement from the dock, in which he claims that ACP Nasir Ali had told him that if he told them everything and expose all the corrupt politicians he would not be prosecuted and instead will be the state witness in the trials that may follow. Mr. Leweniqila, counsel for this accused put this allegation directly to ACP Nasir Ali in these terms and the reply was:

‘Mr. Leweniqila: Mr.Ali you offered Mr Alifereti immunity. You told him that if he was going to tell you everything he could be used as a state witness?

ACP Nasir Ali: No, My Lord. I have never done that and I have not got authority and the DPP’s office would decide that.’

In his evidence in chief ACP Ali said that this accused was cooperative from the first day of his interview and that he (Ali) made no promise to him about not being prosecuted if he told the police investigators everything. The above evidence is supported by Inspector Isireli Tagicaki evidence that no promises were made to this accused at anytime during the interview.

I am satisfied that ACP Nasir Ali’s sworn evidence is the truth. Pita Alifereti has never raised this claim at anytime with any of the officers involved in his investigation before. This accused is a person who has acute business acumen, he would be well aware of the significance of this alleged promise for immunity if it was made. He would at least ensure to raise it in his interview, if only to ensure that it is on record as has been raised and a response from the police investigators recorded on it. I do not believe his claim that he was promised immunity from prosecution if he cooperated fully with the police. The claim was also made in an unsworn statement which did not allow the State to cross examine it, thus testing its credibility.

This ground is not made out and is dismissed.

2. Oppressive and compulsive circumstances
   

The evidence of adduced through ACP Ali, established that the interview of this accused was conducted over a period of 2 years 5 months. From the very first day, Pita Koni Alifereti was clearly informed that his interview would take weeks and months to complete. In fact there were a total of 43 segments in the interviews of this accused. These were spread over a 43 day period. Each segment lasted roughly 3 hours. There were breaks and refreshments given and provided during those interview segments. The nature of the criminal investigation and the magnitude of alleged criminal activities being investigated are such that it will always be spread over a long period of time.

Pita Koni Alifereti is no simpleton; he is an experienced and successful business person in his own right. He would have been well aware of the consequences of the statements he gave in answers to the police interview questions. At appropriate stages in the interview process, he was reminded that the answers he gave to the questions put to him would be recorded and may be use in evidence against him. His responses each time this warning was put to him was the same, namely, he understood it and he would answer the questions.

I find the long period of the caution interview unavoidable given the magnitude of the investigation in which Pita Alifereti was required.

The serving of yaqona during the interview was raised. These were not challenged by this accused in his unsworn statement nor was it suggested to ACP Ali when he was cross examined by his counsel that this accused found the serving of yaqona oppressive. In fact there is evidence that this accused like yaqona to be served during his interview and had requested that it be served on occasion.

I do not accept that the length of the interview, given the fact that they were conducted over 43 days, spread over a 2 years 5 months period were oppressive. The fact that each segments last between 3-4 hours each. Within those 3 – 4 hours long interview there were breaks given for refreshments and use of convenience. This accused is highly experienced in running several businesses and from all accounts successfully, he would not be unfairly impacted by his interview.

In his unsworn statement the accused claimed that he had loaned money to police officers who were involved in the Agriculture Scam investigation. These claims were denied by these officers in their sworn statements. With the exception of Rev Solomoni Kuruveivali, who said in evidence that he received $300.00 from this accused being the cost of tickets he sold to him in the fund raising for the Davuilevu Library. This took place after the witness had left the police force.

The consumption of yaqona during the interview is a concern. Police should cease from serving yaqona to persons who are being interviewed, if they are to avoid difficulties in this area in the future.

From all the above I am satisfied that Pita Koni Alifereti’s statements to the police were given voluntarily.

2. Peli Kete Doviyaroi & Josefa Tapele
   
   1. Violation of section 27(1) Constitution rights
      

The evidence adduced by the State Prosecutor, establish that for both accused their rights to counsel of their choice was administered at the beginning of their interviews. In the case of Peli Kete Doviyaroi his counsel did sit in on some segments of his interview. The right to counsel is not absolute and it must be balanced with other rights: State v Shakir Buksh & Ors, Crim Case No: HAC 010 of 2005S

Mr Rabuku for Doviyaroi asked Solomoni Kuruveivali specifically with regard to the commencement of the interview at page 63, whether his client’s right to legal counsel was administered or not. The respond was that it was given but may have not been recorded.

This was an investigation in which the police recorded small detail. It was not likely that Solomoni Kuruveivali’s claim that section 27(1) (c) warning was given to Mr Doviyaroi but not fully recorded in the interview notes. In that regard, there may have been a technical breach of the section 27(1) (c) Constitution rights of Peli Kete Doviyaroi, but on its own it is insufficient to render the interview inadmissible or the segment of the interview in question. The real issue is whether Doviyaroi has been prejudiced as a result of such failure. As was pointed out in State Counsel’s cross examination and to which Doviyaroi agreed he was given the standard warning just two question before and he agreed that it did not affect him.

I am satisfied that the section 27(1) constitutional rights of both Doviyaroi and Tapele were not violated.

2. Oppresive and compulsive circumstances
   

The relevant evidence for the state on this claim by the two accused were given by Inspector Tagicaki who was the interviewing officer for Tapele; ASP Taufa who was the witnessing officer for the interview of Doviyaroi and Rev Kuruveivali who was the interviewing officer for Doviyaroi.

In summary these police officers evidence is that both Doviyaroi and Tapele were advised from the start of their respective interviews that it will take weeks and months. They did not complain at the time nor at any other time of this. Their rights to legal counsel were given to each and both said that they will consult their lawyers if needed. There were breaks in the interview where refreshments were served, including yaqona. At no time was there any complaint made by them about anything during the interview, except the incidents when Doviyaroi was visited at his residence and escorted to the Nabua Police station when he did not turn as previously arranged for a schedule interview.

The second incident concerns Tapele who was visited by the police at the Government Training Centre and asked to accompany the police to their station for an interview that was previously scheduled with his agreement. On both these occasions Doviyaroi and Tapele did not make prior arrangements with the police to be excused from attending the interview on those days. I do not find these incidents as compulsive or unfair.

The interview day and times were rostered after consultation with each accused to accommodate their work and personal commitments. There were times when the police changed the interview schedule to suit their personal difficulties of both accused. The police merely asked them to make prior arrangements if interview times had to be changed. I find that a reasonable demand from the police.

For Peli Kete Doviyaroi in particular, he was interviewed for 3-4 hours each segment. In his case there were 15 segments, spread over 15 days, spread over 1 year 9 months. He was the storeman at the MAFF, with 18 years experience in the civil service. He by his own evidence is heavily involved with Suva and Fiji Volleyball Association as President. In other word he is an experienced man of the world.

During his interview he made no complain about anything to anyone present. He signed his statements and he identified the statement he was shown as a proper record of his interview by police. He admitted that he was afforded his rights to counsel on each occasion.

He gave sworn statement claiming that he was demoralized when the police visited him at his residence on one occasion when he did not honor his undertaking to present himself at the Police Station for one of the rostered segments of interview. When the police arrived at his residence and brought him to the station, his wife and two young children witnessed it. He was embarrassed. It is unfortunate but a sad reality that police sometimes have to do what they did here because suspects acted the way Doviyaroi did in this instance. He was only visited by the police at his residence because he did not turn up to his interview as previously arranged and he did not make any other arrangements with the police. He really cannot expect otherwise.

I am not satisfied that the police acted in a manner that is oppressive or compulsive with regard to the manner and circumstance of this interview.

In the case of Josefa Tapele his interviews took 35 segments, which lasted 2 years 5 months between 18 March 2002 and 14 May 2004. On the evidence I am satisfied that the purpose and process of the interview were fully explained to him. The interview segments were relatively short in duration. He was a senior accounts officer in the PSC and from other personal details outline in his interview statements, it shows how he managed his personal affairs, and that he is a person experienced in business matters and life.

Josefa Tapele said in his sworn evidence that he was embarrassed when Inspector isireli Tagicaki brought him from the Government Training Centre where he was attending a function when he was supposed to be at Nabua Police Station for one session of his interview. I agree that one would be embarrassed in that situation, but he could have avoided it had he made appropriate arrangements with the police. He did not.

But more importantly, when he was taken to the police station and because he told the police of his being embarrassed by what they did and that he was not in a state of mind to continue, the police did not proceed with the interview on that day. It was done 5 days later. This is fair and reasonable.

I find that the circumstances and the manner in which Josefa Tapele’s interview was conducted was not oppressive or compulsive, but that it was given voluntarily and fairly.

100. Inducement and promise of advantage
     

All the police witnesses were consistent in their evidence that they offered no inducement nor did they make any promise of advantage, to Doviyaroi or Tapele during their interviews. From their demeanor and consistent manner in which they gave evidence, I accept their testimony as the truth in this regard.

Doviyaroi and Tapele on the other hand, did not refer to any form of inducement or promise of advantage offered to them by the police officers who interviewed them, when they gave their testimony on oath in court. It is also noteworthy that in his closing submission by Mr.Rabuku their counsel no mention were made of what in his view may have constituted inducement or promise of advantage. It was a claim generally made but lacking in specifics.

I reject this ground.

Conclusion

15. I am satisfied beyond reasonable doubt on the basis of the evidence adduced, that the statements that were given by all three accused to the police in the course of their interviews and in the their respective charge statements, which were tendered as exhibits [i.e. exhibits P1, P2, P3, P4 and P4A] in this trial within trial, were given voluntarily. I am also satisfied that the circumstances in which these statements were obtained were not unfair or oppressive. I therefore rule that these statements would be admissible evidence in the trial proper.
    

Isikeli Mataitoga
JUDGE

At Suva
15 July 2008.