State v Lulu [2011] FJHC 206; HAC062.2010S (3 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 062 OF 2010S

BETWEEN:

STATE
PROSECUTION

AND:

JOSATEKI LULU
ACCUSED PERSON

Counsel: For State - Mr Daurewa & Ms. Lomani
For Accused Person - Mr Waqainabete

Date of Ruling: 03/03/2011

RULING ON VOIR DIRE

The accused who is charged with one count of Rape disputes the admissibility of his confession to the Police.

Formal grounds for his objection are as follows:

1. Confession was obtained by force through continuous physical and verbal abuse during the time of arrest to the time he was handed over to the officers at Valelevu Police Station.
   
2. Accused was interrogated and physically and verbally abused by Indian Police officers at Valelevu Police Station when he was interviewed by a Fijian Police officer. (Their names are not known).
   
3. His admission/confession was obtained by force through oppression at the Police Station.
   
4. He was subjected to pressure to confess by Indian Police officers.
   
5. There was a breach of his rights under Judges Rules and Article 9(2), 10(1), 14(3) (g) of the International Covenant on Civil and Political rights during his interview.
   

All confessions made to persons in authority must be shown by the Prosecution to be voluntary. The prosecution has to prove beyond reasonable doubt that there was no assault, no pressure, no inducement, no oppression and that the confession was made voluntarily.

At the Voir dire Inquiry Prosecution called six witnesses to give evidence.

Sgt Suliano J. Saunitoga 2179 was the Police officer who arrested the accused.
He explained how he ran after the accused across the ground and how he arrested the accused inside a house.

He said he never assaulted or threatened the accused when he was arrested and on the way to Valelevu Police Station. He had handed over the accused to Valelevu Police Station. Further he said that he didn't see any other officer assaulting, intimidating or threatening the accused.

It was suggested by the defence that accused was punched by the witness at the time of arrest, and while taken to the vehicle and to the Police Station, which he denied. He further said no inducement or threat was made to accused.

PC 2912 Manoj giving evidence said that while the accused was under arrest at the Police Station, he released the accused for 10 minutes to take him to the convenience room. He said that the accused was not assaulted or threatened by him, nor he saw any Police officers doing so.

Accused didn't make any complaint he said. It was suggested to him by defence, that he assaulted and kicked the accused and also that he witnessed other Police officers assaulting the accused. He denied the allegations.

Further it was suggested that he saw the injuries on accused caused by continuous hitting on accused, which he denied. Further it was suggested that the accused even could not walk properly due to assault. He denied all the allegations of assault by him or other Police officers.

PC 2577 Suman Datt who witnessed charging the accused, gave evidence. His evidence was that the accused appeared normal and no complaints were made when he was charged. He said that neither him, nor any other officer assaulted, threatened or put pressure on accused.

It was suggested to him, that he told the accused to lie down on the floor facing upwards and hit him with a pinch bar on the stomach. Further it was suggested that he kicked private parts of the accused. He denied these allegations.

PC Niumaia the officer who recorded the Caution Interview Statement of accused gave evidence.

He said he gave all the rights to accused when recording the statement.
There was a break during the interview to take the accused to the crime scene to reconstruct the scene. He said before, during the interview, and at the break neither he nor any other officer assaulted, threatened, intimidated, bullied or put pressure on accused. No inducement or promise was given to accused he said.

It was suggested to him by defence that when this witness was away from crimes' room, the accused was assaulted by officers Suman, Navnit and Kamal, which he denied.

Further it was suggested that at the time of the break for reconstruction of the scene the officers assaulted the accused, which he denied.

In his evidence witness said that the accused didn't make any complaint, nor he asked for any medical assistance.

PC 3172 Navnit Chandra was called to give evidence for the Prosecution. He was the Investigation Officer of this case.

He said on 13/3/2010, the accused was brought to the Police Station at 02.45hrs by Sgt Suliano and his team.

His evidence was that he searched the suspect. Suspect Josateki had smelt of alcohol. He didn't see any visible injuries. Suspect didn't make any complaint, he said.

On instructions he received, he accompanied Constable Niumaia who was the Interviewing Officer, with Officer Kamal and suspect, for reconstruction of the scene.

After the interview he was instructed to charge the suspect. He said he gave all his rights to accused when charging him. After charging, he escorted the accused to the charge room, and after following the charge room procedure, he locked the suspect in the cell.

Suspect didn't make any complain he said. He further said that due to cyclone Tomas warning, Nasinu Magistrates Court did not function on 15th and 16th March.

Copies of the cell book entries and Station diary entries relevant to the accused were produced in evidence.

He said according to the cell book entries relevant to the accused, there had been no fresh marks on accused. All meals were given to accused he said.

Further he testified that he never assaulted the accused. He didn't see any other officer assaulting the accused he said. He said that he didn't at any time threaten, intimidate, bully, force or put pressure on accused during the period he was in custody, neither he knew of any other officer did so.

Relatives of accused had come to see him, and on 15/3/2010 according to the Station diary, Fiji Times was brought for the accused on his request.

When it was put to him by Defence Counsel, he denied any kind of assault or threat to accused by him, or any other officer, during the period he was in Police custody.

Witness PC Alvin Kishor Kumar was called by Prosecution to give evidence on the request of the defence.

His evidence was that he brought the accused Josateki with two other suspects to court, walking. He said that the suspect walked and appeared normal. The distance to court house from the Police Station was about 250 meters and he denied that the accused was walking slowly due to pain.

Accused giving evidence said that he was assaulted by the Police officer who arrested him. He was continuously punched asking for the girl. He was punched on his sides and back of his head, until he was brought to the vehicle. When he was brought to the vehicle, Police officers started punching on his stomach and back of the head. He said he didn't identify the Police officers. Inside the vehicle, when he was taken to the Police Station, Police officers started punching him he said. He knew only Police officer Suliano. He couldn't count the number of punches he received.

At Valelevu Police Station he was kicked and punched by Police officers on his thighs and ribs and head. He was then kicked inside the cell he said.

The following day after breakfast before he was put to the cell, the Police officers had assaulted him for approximately 15 minutes.

After breakfast, he said an Indian Police officer took him out of the cell and again asked for the girl, and gave him about another 10 punches. He said the Indian Police officer was one Manoj, and he punched him for about 30 minutes.

The next day, Sunday morning, Police officer Navneet had told him to make it easy at the Interview and if he was going to make the conversation hard, they are going to do something that he had never experienced. Officer Navneet had spat on his face.

After lunch Officer Niumaia had took him to be interviewed. When Niumaia was away for about 20 minutes, Officers Navneet, Kamal and Suman had punched him on his sides, back of the head. Kamal had hit him with a hosepipe on his legs. They kept on hitting him for 20 minutes. When Niumaia returned he had told the accused to make things easy, otherwise he would face something harsher.

He said that he was asked whether he wanted a lawyer to be present. Officer Niumaia had then related the story about the girl, and he had said yes to the story, as he was assaulted and scared the way they treated him.

He said halfway through the Interview he was taken to the crime scene. On the way Navneet had started punching him. At Laqere they had started to hit his legs with a stick. Navneet punched his sides, stomach and the back of his head. The assaulting had taken place for about 30 minutes he said. Navneet had said that he would rape the accused's wife and sister, for what he had done to the Indian girl.

He said after he was interviewed he signed the book.

After the Interview he was passed on to Navneet. Then Kamal and Suman had come. Suman had told him to lie down, and with a pinch bar he had poked his stomach and kicked his private parts he said. Kamal had hit his legs and back with a hosepipe. They assaulted like this for about 20 minutes and kicked him to the cell.

When taking him to court, he said he couldn't walk properly and therefore it took about 20 minutes to walk to court. In court Police officer allowed him to talk to his sister. He had showed his sister Mereani, the marks of assault he had on his back, and calves and that the head was swollen.

He said, in court when the case was called he couldn't walk properly, because of the pain. He pleaded guilty to charges. He was taken back to Police Station and from there after lunch was taken to Prison.

In cross examination he said that he did not complain to any person in authority about the assault, but only complained to the sister.

Witness Sainiana Naucoki gave evidence on behalf of the Defence. He said that at the time of arrest the accused was wearing a T-Shirt and when the Police officer pulled him the T-shirt was torn. On the way to the vehicle, Police officer who arrested him had punched the accused more than 20 times. The other Police officers who were in the vehicle had also punched the accused.

The aunt of the accused Sekowa Tawake giving evidence said that the Police officer who arrested the accused punched him on the way to the vehicle. She said that she didn't see other Police officers who were in the vehicle punch him. In cross examination she said that the accused was not wearing a T-Shirt but a vest. Further she said Policeman didn't punch the accused on head or stomach, but punched his sides.

The final witness for Defence was the sister of the accused Mereani Radrodro. Her evidence was that when the accused was brought to the Magistrates Court on 17th March 2010 in the morning, the accused was dragging his feet when walking.

The accused had told her that the Police officers hit him, and shown the marks on his calves and back of the chest. She felt the head swollen when she touch his head she said.

Analysis

This Court has to decide whether the accused was assaulted, threatened or forced to make the statement to Police, in which case, the Caution Interview Statement is inadmissible. Further whether there was oppressive or whether the accused was denied of his constitutional rights.

The Police officers giving evidence said that the accused was never assaulted nor he was forced to make the Statement. The accused admitted in evidence that he was given the right of Counsel to be present at the interview.

According to the evidence of the accused he was beaten up by the Police officers heavily. On certain occasions he was assaulted continuously for 20 to 30 minutes. Punches given on his stomach, sides, back of his head were uncountable he said. The witnesses Sainiana Naucoki and Sekowa Tawake said that the accused was assaulted on the way to the Police vehicle after arrest. His sister giving evidence said that she saw marks on calves, back of the chest and that the head was swollen.

Accused admitted that he failed to complain to any person in authority about the assault. When he was produced before the Magistrate he had not even complained to the Magistrate.

The sister of accused Mereani said that when the case was mentioned in court, the accused went to the accused box limping and was leaning on to the box. According to the copy of record of the Magistrates Court the learned Magistrate has not observed any such difficulty with the accused. No complaint was made to court. The accused had not sought for any medical assistance. Not even complained to the prison authorities. No medical evidence to support his injuries, alleged to have caused by the Police is available.

Having heard all the evidence by the Prosecution as well as the Defence, I accept the evidence of the Police officers that the accused was not assaulted or ill treated at their custody or at the time of arrest.

I find that the accused was informed of his constitutional right to Counsel that he waived. I further consider the demeanor of the Police officers who testified and find them to be truthful.

I am satisfied that the Prosecution has proved beyond reasonable doubt that the accused made the Caution Interview Statement voluntarily and that he was not assaulted, ill treated or oppressed.

I find the Caution Interview Statement to be admissible in evidence.

Priyantha Fernando
JUDGE

At Suva
3rd March, 2011.