State v Rasaqio [2010] FJHC 282; HAC155.2007 (27 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 155 OF 2007

STATE

vs

1. RATU BATINIQIO RASAQIO
2. EMOSI DAGOYA
3. SEFANAIA NUKULAVAI
4. PAULIASI NACAGILEVU
5. ISIKELI TAULELE
6. ISIKELI RALULU
   

Mr. J. Singh for the State
Ms J. Nair for the First Accused
Ms N. Nawasaitoga for the Second Accused
Mr. A. Singh for the Third Accused
Mr. T. Terere for the Fourth and Sixth Accused
Fifth Accused in Person

RULING ON VOIR DIRE

[1] The fifth accused and the sixth accused persons in this trial have challenged the admissibility of their statements to the Police.

[2] The ground on which the fifth accused bases his objection is inhumane treatment within the Police Station. He says that he was locked in a cell for 5 days and that the only reason he confessed was to be released from custody. As a result he did not give the answers in his statement voluntarily.

[3] The sixth accused prays unfair and prejudicial procedural errors in the taking of the statement which should lead me to having it excluded.

The Legal Test

[4] The test for admissibility of all confessional statements made to the Police, is whether they were made freely and not as a result of threats, assaults, or inducements made to the accused by a person or persons in authority. Further, oppression or unfairness also leads to the exclusion of confessions. Finally, where the rights of suspects under section 27 of the Constitution have been breached, this will lead to exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.

[5] The preamble to the Judges' Rules states as follows:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a Police Officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercise or held out by a person in authority, or by oppression."

[6] In Ganga Ram and Shiu Charan v R (1983), the Fiji Court of Appeal outlined the two grounds for the exclusion of confessions:

"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 Crow 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 – which has been picturesquely described as "the flattery of hope or the tyranny of fear" Ibrahim v R (1914)AC599; DPP v Ping Lin (1976) AC 574.

Secondly, 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 police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. R v Sanag [1979] UKHL 3; (1980) AC 402,436CE. This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account".

[7] Further, the rights of suspects who are arrested or detained are protected by section 27 of the Constitution (which at the time was operative). These rights include the right to be informed "promptly in a language that he or she understands that he or she has the right to refrain from making a statement". A breach of the Constitution may also be a ground for excluding admissions.

[8] The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution and (if there is non-compliance) lack of prejudice to the suspect, rests at all times with the prosecution. They must prove these matters beyond reasonable doubt.

The Facts

(1) Fifth Accused

[9] Acting Sergeant Saimoni Ratu of the Tavua Police Station gave evidence before a Commission issued by this Court under s.120 of the Criminal Procedure Decree 2009, on the 6th July 2010. He told of having interviewed the 5th accused on the 11th October 2007 in the Crime Office at Tavua Police Station. The interview was in the Fijian vernacular and he translated it into English. He said that before the interview the accused "appeared happy" and he made no complaints about his treatment in custody. He added that he did not see anybody ill-treating the accused. He applied the Judges' Rules and extended the usual rights to the 5th accused who signed to acknowledge being informed of those rights. The accused co-operated with the question and answer interview, answering all of the questions. He then formally produced both of the documents in question.

[10] The 5th accused, being present of course, cross-examined the witness, asking him how long he had been in the cell. The witness said that all he knew was that the accused had been arrested on the 10th October and interviewed on the 11th. The accused suggested to the witness that he only gave the answers because his wife and children were visiting every day to which the witnesses replied that he had no idea about that but he did know that the responses given in the interview were given "of your own free will".

[11] In re-examination, the witness said that the accused had never complained about being in custody for an unduly long time, nor were there any complaints about family visits.

[12] Sergeant Vinesh told this Court that he was the main Investigating Officer for this case. He said that this accused was brought into the Station on the 11th October (a day later than the previous witness had deposed to) and was interviewed on that day. The accused made no complaint to him, nor was he a witness to any improprieties in the station. He was first produced before a Magistrate on the 15th October, the reason being that the interview was conducted on the 11th and12th October and the 13th and 14th were weekend holidays. His family was allowed to visit him.

[13] In cross-examination the 5th accused put to this witness that his family came to visit him at the Station but they were not allowed to see him. The witness denied knowledge of this.

(2) Sixth Accused

[14] PC 3065 Joeli told the Court that he was stationed at Ba Police Station and was an investigator in this case. He was tasked to interview the sixth accused which he then did on the 8th October 2010. He initially told me that the interview was recorded in the English language, but on further questioning "remembered" that it was recorded in the Fijian vernacular and then translated into English. The accused never complained of assaults or force and he was afforded all of his rights. He answered the questions quite freely, never complained of any improprieties and signed the interview at the end. The witness produced the interview and its translation.

[15] In cross-examination, the witness agreed that the accused was denying the allegations put to him on the first day of the interview, but on the second day he was making admissions. He admitted that the suspect was not cautioned again on the second day before he made these admissions. Question 72 in the interview (which is the first question asked on the second day) refers to "information" being given by the suspect's wife. This question was not translated into the English version. He also admitted that the interview was not read over to the suspect at the end, and moreover he agreed with Counsel for the accused that during the interview the 1st and 3rd accused were brought into the room.

[16] In re-examination, he said that because space in the Tavua Station was confined, the two co-accused had to pass through the interview room to get to the charge room. He also explained that he did not read over the interview to the accused because as he finished every page he would hand it to the 6th accused to read it for himself. Although asked, he was unable to give a satisfactory answer for this admission.

Analysis

[17] The 5th accused objection to the interview has always been that he was kept in his cell without release for 5 days which mentally affected his "performance" at the interview. However it is quite apparent from the evidence of the officers, whom I believe, that the interview was conducted almost as soon as he had been brought to the Station, be it within one day or the same day. The lengthy period the accused refers to is obviously the time he waited over the weekend to go to Court. There is nothing to suggest that there were improprieties committed against this accused, and I believe the officers' testimony that he gave the interview quite voluntarily. There appears to be no oppression to make me withdraw the interview from the assessors and as a result I find that the interview is voluntary and can be lead in evidence in the trial proper.

[18] The sixth accused sole ground of objection is that the interview is "unfair and prejudicial to the accused in that its prejudicial effect outweighs its probative value".

[19] This very unhappily worded ground takes the 6th accused's case no further. All interviews that contain confessions are prejudicial and as such are probative; the prejudice being the proof, not outweighing the proof. However the real intent of the ground, though not worded as such, is the "unfairness" of the interview.

[20] There are obviously breaches of the Judges Rules in the course of this interview. The suspect was never cautioned on the second day, nor was it read over to him in its entirety at the end before being asked to make additions, corrections or alterations. He was asked if he wanted to alter or add, but this was not done in response to the interview having been read to him. It is now settled law in Fiji that the Judges Rules are not a "strait-jacket" with the force of law. As the Court of Appeal said in R v Prager (1972)1 All ER 1114, a case which has been followed in the jurisdiction:

"The Judges Rules 1964 are not rules of law and their non-observance will not necessarily lead to a confession being excluded from evidence, unless it is shown that the confession was not made voluntarily. Accordingly where it is alleged that a confession has been obtained in the course of questioning which was not introduced by a caution in accordance with Rule 2b of the 1964 rules it is open to the trial Judge to admit the confession on the basis that it was made voluntarily without ruling on the question whether it was obtained in breach of the rules".

[21] In this case however, the matter was not as simple as that. Everything that could be wrong about the taking of this statement is wrong.

1. The interviewing officer did not appear to me in evidence to be taking his duty seriously - he had not even familiarized himself with the language the statement was taken in.
   
2. There appears to have been a witness to the statement because each page has three signatures however no witness was ever introduced to the suspect, nor was there any evidence given in Court from, or even about a witness.
   
3. There was no caution administered to the suspect and at a time when he has changed his mind and giving inculpatory answers.
   
4. There is reference to information being given by the wife but this "information" was not explained neither in the document, nor in evidence. There was nothing to tell me why the wife was even present or what effect her attendance had on the suspect. It is suggestive of some outside pressure put on the suspect by the Police in collusion with the wife.
   
5. The interview was never read over to the accused.
   

6. The presence of two co-accused in the interview room could have had an enormous effect on the accused's mind. As far as he was concerned, the evidence shows that the first accused was a "ring leader" and this could have influenced his answers. For the interview to be interrupted in this manner is shockingly prejudicial.

[22] In summary, I cannot be sure that the State has proved to me that the statement was made voluntarily.

[23] The interview is at best "sloppy" and obviously taken in a hurry with corners being cut, and it is not for a Court to condone such sloppiness, if indeed it was just that and nothing more sinister.

[24] This is a case where a caution was imperative on the second day in view of "discussions" with the wife and it wasn't administered. Everything said by the accused after that is in answer to oppressive questioning and as such I exercise my discretion to disallow it to be used in evidence.

[25] Not only is the evidence given insufficient to allow me to find that the State has proved to me that the statement is voluntary, the statement is so unfairly taken that I find it oppressive. It fails both tests of admissibility.

Paul K. Madigan
Judge

At Lautoka
27 July 2010