State v Vasuca [2011] FJHC 11; HAC041.2009 (24 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 041 OF 2009

STATE

vs

VILITATI VASUCA

Date of Hearing : 20 January 2011
Date of Ruling : 24 January 2011

Mr. L. Sovau for the State
Mr. T. Terere (L.A.C) for the Accused

RULING

[1] The second accused challenges the admissibility of his statements to the Police at Lautoka. He took part in a caution interview on the 18th May 2009 in which he gave incriminating answers. In addition he made an inculpatory statement in answer to his formal charge the following day. The grounds on which he challenges the admissibility, as advanced by his Counsel are:

1. That these confessions were obtained by force, duress and pressure and through verbal abuse.
   
2. That he was handcuffed, blindfolded and beaten with an "object".
   
3. He was threatened with the application of chillies to his genitals.
   
4. The evidence against him was fabricated and then the statements were not read back to him and he was forced to sign.
   

[2] The test for the admissibility of statements made by an accused to persons in authority is whether they were voluntary, obtained without oppression or unfairness, or in breach of any constitutional (now read common law) rights. The burden of proving voluntariness, fairness, lack of oppression and observance of common law rights rests on the Prosecution and all matters must be proved beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding upon this issue.

[3] Evidence of assault, if accepted by the Court, is sufficient to raise a reasonable doubt as to voluntariness. Evidence of long hours of questioning without adequate breaks, prolonged illegal detention and deprivation of sleep, food or water could constitute oppressive conduct.

[4] In the voir dire the Prosecution called 4 witnesses. Constable Aisake Salato told the Court that acting on information he arrested the second accused ("the accused") on the 16th May 2009. An "Indian" boy had come to the report centre where he was stationed and made a complaint that a Fijian man who appeared to be very drunk was causing trouble in his compound and he wanted the Police to assist in removing him. Salato attended the scene and immediately recognized the Fijian man as the accused. He recognized him because he was well known at the Station for being suspected of many crimes, and his photograph had been published. He was so drunk, he was comatose and could not be aroused. Knowing his reputation for escaping, Salato handcuffed him, and with the help of other officers placed him in a police vehicle to take him to Lautoka Police Station. He denied blindfolding him, assaulting him or abusing him.

[5] In cross-examination, D/Sgt Asesela Tuitai gave evidence of his role as the investigating officer and as the interviewing officer. He explained the procedures he undertook in recording the cautioned interview and denied any improprieties occurred whatsoever and in particular the abuses complained of by the accused. He said that the accused was aware of his rights and the procedures and that the answers were given by the accused himself. He denied that any of the material was fabricated.

[6] PC Eliki Rupeni did not offer a great deal to the Prosecution case. He was one of the officers called to assist at the apprehension of the accused when he was found drunk in the compound. He corroborated what PW-1 said as to the complete drunkenness and unawareness of the accused when he was handcuffed. He saw no assaults nor did he occasion any such himself.

[7] D/Sgt Manoa Raqio was the fourth and final witness in the Prosecution case. It was he who formally charged the accused on the 19th May. He afforded to the accused all of his rights and he did not assault him or abuse him. He gave the statement in response to the charge willingly.

[8] On finding a case to answer in this trial within a trial, I adjourned so that counsel could explain to the accused his rights in defence. Defence counsel then advised me that the accused wished to exercise his right to remain silent, nor did he wish to call any witnesses.

[9] The difficulty faced by the accused in these particular proceedings is that there is not one iota of evidence before me of anything improper occasioned to him at the time that these statements came into being. Grounds of objection and questions put in cross-examination (if denied) are not evidence. I am therefore left only with the evidence of the Prosecution Police witnesses, whom I find to be credible, reliable and convincing.

[10] Well it is trite law that the accused does not have to prove anything to the court, it is also axiomatic, that I cannot take into account matters that are not before me in evidence.

[11] I am therefore satisfied beyond reasonable doubt that the confession and the charge statement were voluntarily and fairly obtained. They may be led in evidence.

Paul K. Madigan
Judge

At Lautoka
24 January 2011