State v Padiyachi - Ruling on Voire Dire [2011] FJHC 433; HAC16.2010 (18 July 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 16 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. RAVINESH PADIYACHI
2. MOHAMMED NADIM
ACCUSED PERSONS

Counsels: Prosecution [State] - Ms. Puamau, S.
Accused Persons - Mr Valenitabua, S

Dates of Inquiry: 30th June 2011, 1st July, 2011, 4th – 7th July, 2011, 11th –
14th July, 2011.

Date of Ruling: 18th July, 2011.

RULING ON VOIR DIRE

[1] The accused persons are charged with 2 counts of Murder and with one count of Larceny.

[2] The 1st accused Ravinesh Vikash Padiyachi and 2nd accused Mohammed Nadim both dispute the admissibility of their confessions and charge statements to the Police. The grounds of the challenge are Police assault, oppression, inducement and that their rights were not given by the Police. The following confessions are challenged:

Accused 1

(a) The caution-interview statement recorded on 17th

January, 2010 from 1145hrs to 1300hrs in the Ba Police Station;

(b) The caution-interview statement and reconstruction statement

made at Benai in Ba where 2 bodies were found from 1400hrs to 1445hrs on 17th January, 2010;

(c) The caution-interview statement from 1540hrs to 1550hrs

recorded at Ba Police Station on 17th January, 2010;

(d) The caution-interview statement from 0900hrs to 0935hrs

recorded at CID Headquarters on 18th January, 2010;

(e) The caution-interview statement and reconstruction statement

conducted at Lot 33 Willow Street, Nakasi, Nasinu from 1030hrs to 1130hrs on 18th January, 2010;

(f) The caution-interview statement from 1150hrs to 1300hrs

recorded at CID Headquarters on 18th January, 2010;

(g) The caution-interview statement from 1345hrs to 1630hrs

recorded at CID Headquarters on 18th January, 2010;

(h) The caution-interview statement from 1655hrs to 1720hrs ended

on 18th January, 2010;

(i) The charge statement from 1810hrs to time it ended on

18th January, 2010.

Accused 2

(a) The caution-interview statement from 2250hrs to 0025hrs

made at the Lami Police Station on 16th January, 2010;

(b) The caution-interview statement from 1130hrs to 1300hrs

given on 17th January, 2010;

(c) The reconstruction statement and caution-interview statement

given at Benai in Ba and also at the Ba Police Station later on 17th January, 2010.

(d) The caution-interview statement given at CID Headquarters from

0850hrs to 0930hrs on 18th January, 2010;

(e) The caution-interview statement given at Lot 33 Willow Street in

Nakasi from 0950hrs to 1100hrs and also at CID Headquarters later that day until completion at 1630hrs;

(f) The charge statement of 2nd accused given at CID Headquarters

from 1830 hrs to the time it ended on 18th January, 2010.

[3] The burden of proving that the statements (caution-interview statements and the charge statements) were obtained voluntarily and without oppression is on the prosecution. The burden is also on the prosecution to prove that the statements were obtained without any breaches of their rights, and if there were any breaches, there was no resulting prejudice to the accused. The standard of proof is that of beyond reasonable doubt.

[4] In case of Ganga Ram & Shiu Charan v Reginam Criminal, Appeal No. 46 of 1983 on 13/7/1984 Fiji Court of Appeal said:

"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 the tyranny of fear". Ibrahim v R (1914) AC 599. 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 the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E.

This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account".

[5] The Pricy Council, in the case of Wong Kam-Ming v The Queen (1980) A.C. 247, P.C., observed that:

[t]he basic control over admissibility of statements are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v R [1914] UKPC 16; (1914-15) AER 874 at 877. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.

[6] Prosecution called 20 witnesses. D/Sgt. Seruvi was the 1st witness. He has arrested the 1st accused from his residence on 17/1/2010 at around 1.00am. He said that Inspector Meli had received instructions from the Major Crime Unit to arrest 1st accused from his residence at Lautoka Rifle Range. He had handed over the 1st accused to the Station Orderly of Nadi Police Station. DC Selvin had been the driver of the vehicle and Sgt. Meli had been with him.

[7] In cross-examination he said that he did not mention about the right to Counsel to the accused at the time of arrest. He said that right to Counsel is given only at the interview. Further he said the right to be silent too was not told to the accused at the time of arrest by him. However, he said that the 1st accused didn't say anything.

[8] The 2nd witness D/Cpl. Mahesh Chand had been the driver of vehicle no. EK819, where he conveyed ASP Abdul Khan on 16/1/2010. They had been assisting CID officers. He said that ASP Khan and other officers went to search somebody at Nakasi. He said that he cannot recall who were in the other vehicle from CID, which took the lead. From Nakasi they have followed the CID vehicle to Lami Police Station.

[9] The next day on 17/1/2010 he had conveyed ASP Khan to Benai, Ba from the Lami Police Station. He firmly said that they never stopped at Nadi Police Station and he conveyed ASP Khan direct to Ba Police Station. In cross examination, he further denied that the 2nd accused was in his vehicle when he left Nakasi.

[10] He denied ASP Khan being present at Nadi Police Station when Nadi Police Officers handed over 1st accused to ASP Khan. He denied any kind of assault on the accused persons on the way to Ba.

[11] Even when the Station Diary of Nadi Police Station was shown where it's written that ASP Khan was present when 1st accused was handed over, he said he has no idea. He denied that police officers tortured the accused persons to confess, at a building near the Nadi International Airport. He said he only saw the accused persons at the Ba Police Station.

[12] Sgt Meli who participated in arresting the 1st accused in Lautoka gave evidence about the arrest. He said that 1st accused was not fearful or resisting.

[13] In cross examination he said that they showed their identity cards to identify themselves to accused. He said that he gave the 1st accused the right to be silent at the time of arrest.

[14] The next witness was ASP Abdul Khan. He was the most senior officer who travelled in the TCU vehicle. He said that he was not involved in the arrest of suspect at Nakasi and he had been inside the vehicle at Nakasi.

[15] At Lami Police Station he had no contact with the accused he said. On 17th both CID vehicle and TCU vehicle had left Lami Police Station at around 6.00am. Cpl Mahesh had been his driver and IP Iqbal and Cpl Bai had been in his vehicle. They have gone as a backup vehicle to CID.

[16] They have stopped at Nadi Police Station as CID had to pick up another suspect he said. On arrival at Nadi Police Station the other suspect was released from the cell and handed over to them. Both suspects were then taken to the Ba Police Station. He said that there were no assaults on civilians in his presence.

[17] In cross examination he said that at Nakasi he didn't go to arrest 2nd accused but Sgt Mukeshwar and Sgt Uttam went to arrest him. He denied getting into the CID vehicle in which 2nd accused was in. He said he travelled to Lami in his unit vehicle.

[18] Witness said that he did not go inside the Lami Police Station but stayed inside the vehicle. He denied assaulting the 2nd accused when he was being transported to Lami Police Station stating that he was not in that vehicle. He denied spraying capsicum spray in the mouth of 2nd accused at Lami Police Station.

[19] It was suggested that at Lami Police Station, due to assaults, 2nd accused agreed for Police Officers to write what they want and that he would sign, and thereafter the confession was prepared. Witness denied the same. He denied that the 2nd accused was taken to a building near Nadi Airport from Lami and then going to Nadi Police Station to pick up 1st accused. Further witness denied that 1st accused was assaulted on the way to the building at Nadi Airport from Nadi Police Station. Witness further denied that the accused persons were made to strip naked, chillie mixed with water was sprayed to accused persons eyes and private parts at a building near Airport. He denied any kind of assault on the accused persons.

[20] He said on the way to Ba Police Station, 2nd accused was in the CID vehicle and 1st accused was in their vehicle. He had handed over 1st accused to ASP Kishor Kumar and the CID team at Ba Police Station.

[21] The next witness was D/C Nancy Komaitai who joined the TCU group to assist the CID personnel in the arrest of 2nd accused at Nakasi. 2nd accused was arrested by the CID Officers and was taken to Lami Police Station in the CID vehicle.

[22] According to her evidence ASP Abdul had got off the vehicle and gone towards the CID vehicle at Nakasi. After CID Officers arrested the 2nd accused, ASP Abdul had come back to their vehicle.

[23] In cross examination denying ASP Abdul assaulting the 2nd accused, she said that ASP Abdul was in their vehicle. She said ASP Abdul travelled from Nakasi to Lami in their TCU vehicle. She said at Lami Police Station, ASP Abdul went inside the Police Station. She had been inside the vehicle until she was dropped home after 5.30am. Until then ASP Abdul also had been there.

[24] The next witness was D/Cpl Sakiusa Bai.

He too has been with the TCU team on 16th January 2010, when the CID team arrested the 2nd accused from Nakasi. He said none of the officers of TCU vehicle got off at Nakasi when CID officers arrested the 2nd accused. He too had travelled to Lami Police Station. ASP Abdul also had been in TCU vehicle. He said from Lami he went off duty by 12.00 – 1.00am and rest of the team left at the same time.

[25] On 17th he too had travelled to the west to Nadi Police Station.He said at Nadi Police Station the other suspect was taken to the CID vehicle and both vehicles went to Ba Police Station. From there he had escorted 2nd accused to Benai, Ba.

[26] He said ASP Abdul was in the vehicle at Nadi Police Station and never left the vehicle. He denied that accused persons were taken to a building near Nadi Airport. He denied any kind of assault on accused persons.

[27] Next witness was Cpl. 2177 Sebastiano Baleisuva.

He had been the shift supervisor at Lami Police Station on 16/1/2010. He said 2nd accused was brought to the Police Station in Lami. 2nd accused was taken upstairs to the conference room. ASP Abdul had been there with him in the charge room. Later 2nd accused was locked up at 12.30hrs and the police officers had then left.

[28] On 17/1/2010, 2nd accused was released to ASP Abdul and the party at 6.20hrs. He had provided the conference room upstairs to record the interview. He further said that 2nd accused was released to crime personal although the cell book says that he was released to ASP Abdul.

[29] Next witness was Mohammed Muneef.

He is the brother in law of 2nd accused who lives 300 meters away from 2nd accused's house in Benai, Ba. He has seen both accused persons when they were brought to the secondary crime scene at Benai, Ba. He said that he saw both accused closely and that he did not see any injuries in their faces or eyes. Accused persons had been walking straight.

[30] Prosecution then called D/Inspector Uttam Naidu to give evidence.
He was part of the team who arrested 2nd accused. 2nd accused was arrested and brought to Lami Police Station, he said. On the way they have picked up Sgt. Abinesh from CID Headquarters. He said ASP Abdul was not in their vehicle. Next morning he too had been with the team to Ba.

[31] When they arrived at Nadi Police Station 1st accused had been there outside the Police Station. He has changed the vehicle to TCU vehicle to accompany 1st accused to Ba. He has interviewed 1st accused at Ba Police Station on 17th and 18th. He said that he never saw any injuries either on 1st accused or 2nd accused. He further said both accused were never assaulted and that they were normal. When he interviewed 1st accused he said he gave all the rights to 1st accused. He denied accused persons being taken to the building near Airport and being assaulted. However, he said that TCU has an office at the Nadi Airport.

[32] The next witness was ASP Kishor Kumar.

He was in the team of CID officers when they arrested 2nd accused at Nakasi. He denied any assault on 2nd accused on the way to Lami Police Station from Nakasi after arrest. At Lami Police Station he directed the 2nd accused to be interviewed.

[33] On 17th he too went to Nadi with 2nd accused in the CID vehicle, he said. At Nadi Police Station they picked up 1st accused and he was transported to Ba Police Station in TCU vehicle. 2nd accused had been in CID vehicle. He denied taking the accused 1 and 2 to a building near Nadi Airport and also denied any kind of assaults on accused persons. Interviews of both accused were made at Ba Police Station, he said.

[34] He said no assaults, threats or promises were made on accused persons. He has not seen any injuries on accused persons.

[35] Next witness was IP Iqbal Khan.

He said that he travelled in the TCU vehicle from Lami to Nadi on 17/1/2010. At Nadi Police Station he had remained in the vehicle and he said that he did not know what happened at Nadi Police Station. From Nadi on the way to Ba, he said they stopped at Border Police Station at Airport to pick up accused Padiyachi. He said that IP Uttam brought 1st accused to the vehicle from Border Police Station. He said that he didn't know what 1st accused was doing at the Border Police Station.

[36] Answering a question by court he said, at Nadi Police Station ASP Kishor Kumar went to Police Station while he was in the vehicle. Then again he said Padiyachi was picked up from Nadi Police Station. Then again he said that he can clearly recall that 1st accused was picked up at Border Police Station. Later he has accompanied 1st accused to Benai Ba, the secondary crime scene. He has not seen any injuries on any of the accused persons. He denied any kind of assaults on accused persons.

[37] In cross examination he confirmed that IP Uttam brought the 1st accused to the vehicle from Border Police Station at Airport. He admitted that both accused persons were taken to a building near the Airport and that was Border Police Station. However, he denied disembarking at Border Police Station or any kind of assault to the accused persons.

[38] The next witness was Cpl. Irshad Ali, a relative of 2nd accused.

He is a police officer attached to Ba Police Station and he had been at Benai, Ba when accused persons were brought to the secondary crime scene on 17/1/2010. He said Nadim looked normal and he did not see any injury to his face or eyes. Further 1st accused too had been normal with no injuries to his eyes.

[39] The next witness was DC 3016 Kamal Goundar.

On 17th January 2010 he had been on duty at Benai, Ba when the accused persons were brought to the secondary crime scene. He said that both suspects he could observe and that they did not have any injuries to their eyes or to their faces. They did not look as if they were being forced and they did not have any trouble walking, he said.

[40] The next witness was DC 3227 Aveen Kumar.

He had been present at Benai, Ba the secondary crime scene on 17/1/2010. He has observed both the accused persons and said that they did not have any visible injuries on their faces. They were walking normal, he said. Although he was there as a photographer, he has not taken any photographs of the suspects. He said he photographed the scene.

[41] The next witness was D/Sgt. 1882 Muktar Ahmed.

He had arrested the 2nd accused at Nakasi residence on 16/1/2010 with IP Uttam. He said that he touched the 2nd accused and told him that he is arresting him. Further he explained the rights to 2nd accused, he said. He too had travelled in the CID vehicle with the CID team. He had been the interviewing officer of the 2nd accused at Lami Police Station and Sgt. Abinesh had been the witnessing officer. He said that no assaults, threats were made on 2nd accused.

[42] He too said that on 17/1/2010, 1st accused was picked up from Nadi Police Station. He said that he can't recall whether they stopped at the Border Control Police Station. He had interrogated the 2nd accused at Ba Police Station. He too had visited the secondary crime scene at Benai, Ba. Interview was continued there. After the accused persons were taken back to Suva on 18th January 2010, he again had interviewed 2nd accused. He had visited the primary crime scene at Nakasi. 2nd accused had no complaints, he said. He further said that 2nd accused was never assaulted or threatened by Police officers. During interview 2nd accused was given all his rights, he said. He then denied that accused persons were taken to a building near Airport and denied any kind of assault on accused persons. He said the accused persons had no injuries.

[43] The next witness was D/Sgt. Abinesh.

On 16/1/2010 he was picked up by the CID vehicle to go to the Lami Police Station between 9.00pm – 10.00pm. He said that he didn't see any visible injuries on Nadim (2nd accused). At Lami Police Station he had witnessed the record of interview of 2nd accused. He said that rights of the accused were given and nobody assaulted the 2nd accused. No inducement or threat made, he said. He too had gone to the west with the other officers in the CID vehicle.

[44] He said that at Nadi Police Station Uttam got off and escorted the 1st accused. 1st accused was taken in TCU vehicle from Nadi Police Station. They had gone straight to Ba where they continued the interview of 2nd accused. Then at Benai, Ba the interview had continued. Nadim had no complaints and he had no injuries, he said. Nadim was brought back to Suva and interview had commenced the following day. He too then visited the primary crime scene when 2nd accused was taken. He denied going to a building at the Nadi Airport, or the Border Police. Accused made the statements voluntarily, he said.

[45] The next witness for prosecution was Sajnesh Nand who charged 1st accused. Woman Sgt. Reshmi Dass has witnessed. He said 1st accused's personal appearance was normal and he co-operated. He identified the charge statement and the signature. He said that 1st accused was not forced or threatened to sign. No promise or inducement offered and he did not have any complaints. His rights had been given to him.

[46] D/Sgt. Ms Reshmi Dass who witnessed charging of the 1st accused gave evidence and said that 1st accused had no injuries visible. 1st accused was not forced to sign, she said. 1st accused had not made any complaint.

[47] Raj Kumar, retired ASP, witnessing officer of the charge statement of 2nd accused gave evidence and said that 2nd accused was normal and calm. Had no black eye, did not notice any injury on him. He said that the charge statement was made voluntarily.

[48] Jacob Latchman who gave evidence had been there as a neighbor when accused persons were brought to the primary crime scene on 18/1/2010. He had known Nadim since he (2nd accused) was born. He said that Nadim had no injuries and was normal.

[49] Witness Rattan Lal is a JP who visited CID Headquarters in 3rd week of January on the request of the CID officers. He said that he saw both accused and he spoke to them. None of the accused persons had injuries and none of them made any complain, he said. He denied lying in court.

[50] D/S Aiyas Ali who was the charging officer of the 2nd accused, giving evidence said that the 2nd accused gave the charge statement voluntarily. He too denied any kind of assault on accused.

[51] That was the evidence for the prosecution.

[52] 1st accused giving evidence said that the police officers did not give any of his rights at the time of arrest.

[53] On 17/1/2010 at Nadi Police Station, ASP Abdul and D/Sgt. Abinesh had told him that he will be taken to Nadi Airport and from there he will be taken to Nausori in a flight and then to Suva. There had been 2 vehicles. As glasses were up he had not seen 2nd accused. He was taken to Nadi Airport, to an office and was made to strip naked and police officers had started to assault him mostly punches on chest, stomach and legs. He said he fainted twice. Then chillie was sprayed on his eyes, mouth and on his manhood and anus. He said he started vomiting blood and then they stopped punching and started threatening.

[54] Then Nadim was brought to the same office and he too was assaulted. They have said that if you say no to anything this would happen again. He was made to see Nadim being assaulted. Nadim too was made to strip naked and was assaulted the same way. He had noticed Nadim had a black eye. The police officers were Abdul Khan, Abinesh, Uttam, Mukthar and Kishor, he said. At Ba Police Station he said that he was threatened but was not assaulted. At Benai, Ba he said that he was asked to walk straight.

[55] He said that he was not given a chance to meet the lawyer arranged by the sister. From Benai, Ba he was taken to his house in Lautoka and then to Lami Police Station.

[56] He further said, the next morning on 18th January 2010, he was taken to CID Headquarters and then to Nakasi. He was threatened at CID Headquarters, he said.

[57] He said that Police officers never wrote anything in front of him but he was forced to sign. He said he never gave any statement on the charge.

[58] On 19th he was remanded by the Magistrates Court. He said that lawyer complained to the Magistrate about the treatment given to him. They were taken to Nasinu Police Station and on 21st, after 2 days they were taken to Korovou Prison, where he was refused admission as Nadim had a black eye. 1st accused too had said that he vomited blood.

[59] They were taken to Valelevu Medical Centre and then to CWM Hospital for X-ray. Then they were taken back to Prison with the medical reports.

[60] The 2nd accused Mohammed Nadim giving evidence said that he was taken to Lami Police Station on 16/1/2010 from his home at Nakasi.

[61] On the way to Lami he said he was assaulted. He said that when he was taken from his home his rights were not given.

[62] ASP Abdul started assaulting him in the vehicle, he said. Until they reached Lami Police Station, ASP Abdul had assaulted him.

[63] At Lami Police Station he was taken upstairs and was asked to remove his clothes. Then he was forced to sit down and used capsicum spray inside the mouth and asked him to swallow, he said. When he shouted and spat out, he had been assaulted. He said no statement was taken but was just told to sign.

[64] Abinesh had told him forcefully to confess to the murder of 2 Indian nationals. He had punched, pulled him from the chair and when he was on the ground, Abinesh had started jumping on his body. He had sprayed capsicum spray into the eyes, body and private parts.

[65] Then he had told him to write anything they wanted and that he would sign. He had signed the papers given to him by Sgt. Mukthar.

[66] He said from this assault he had a black eye. He said that he was locked up only at 3.00am. Next morning he was taken to Nadi Police Station and Ravinesh had been there at Nadi Police Station.

[67] He said when they reached the Airport the other vehicle had been there. He said he was taken into the Airport building and then he saw Ravinesh naked and hand cuffed. Then his clothes were removed and he was assaulted, he said. Chillies mixed with water were sprayed into his eyes, body and private parts.

[68] Then they were taken to Ba Police Station and he was never questioned, he said. However, he was forced to sign documents but he did not sign, he said.

[69] At CID Headquarters he was assaulted again and was forced to sign the documents. He was taken to Benai, Ba from Ba Police Station and however, no questions were asked from him, he said.

[70] From Ba, first he was taken to Lautoka, Ravinesh's place and then to Lami Police Station and then to Raiwaqa Police Station in separate vehicles. Next day he was taken to CID and he signed all the documents, he said.

[71] On 18th January at CID Headquarters he signed the documents as he was threatened of being assaulted. He said that at CID Headquarters no Justice of Peace came to see them. Even the charge statement he had signed due to fear of assault.

[72] On 19th he was taken to Magistrates Court and remanded, but was taken to Nabua Police Station.

[73] On 21st when they were taken to Korovou Prison, gate keeper had refused their entry for want of medical report. Then they were taken to Valelevu Health Centre where they were examined by a Nurse Practitioner. On the instructions of the Nurse, they were taken to CWM Hospital and X-rays were taken. However, X-rays were not shown to a doctor. The medical certificate was submitted in court. With the medical reports, following day they were taken to Prison, he said.

[74] Witness Vitoriano Kolo was called to give evidence on behalf of the accused persons. He is the OIC of Suva Correction Center. He said according to the records, the 2 accused persons were admitted to Suva Prison on 22/1/2010. However, the gate keeper had told him that he refused their entry earlier.

[75] The said gate keeper of the prison, who was on duty on 21/1/2010, Corporal Ravendra Kumar gave evidence and said that the 2 accused persons were brought to Prison on 21/1/210 and he refused entry as 2nd accused had a black eye. 1st accused had said that he wanted to be medically examined. They were refused entry for want of medical reports.

[76] The Nurse Practitioner, Melaia Marama Kerei, who examined the accused persons on 21/1/2010, gave evidence. Special Constable had brought the accused persons for examination. The 2 medical examination forms were produced. She had observed a black eye on 2nd accused. 1st accused had no visible injuries, she said. However, 1st accused had complained of tenderness of the chest and the back, she said. She had prescribed pain killer for both and ordered for X-rays from CWM hospital. Although they were told to bring the X-rays, she said that she cannot recall them bringing the X-rays. Both accused persons have told her that they were assaulted by the Police officers in Nadi.

Analysis

[77] The 2nd accused says that he was assaulted on the way to the Lami Police Station from Nakasi, at Lami Police Station, at a building near the Nadi Airport, that he was threatened to co-operate on the return trip from Ba to Suva and that he was threatened and assaulted at CID Headquarters on his return. He was threatened to confess to the murders.

[78] However, all the police officers who gave evidence denied any kind of assault, threat or inducement on 2nd accused. No witness for the prosecution has seen any injury to his face or the eye.

[79] The witness Mohammed Munif, the uncle of the 2nd accused also testified that he could observe the 2nd accused and that he had no visible injuries and that he was walking normally.

[80] Corporal Irshad Ali, the brother-in-law of the 2nd accused also testified that Nadim, the 2nd accused had no injuries.

[81] However, the fact remains that 2nd accused had an injury to his eye when he was taken to the prison on 20th January, 2010 by the police officers. Evidence of the gate keeper and the Nurse Practitioner who saw that 2nd accused had a black eye, was not challenged. Therefore, there is no doubt that the injury to 2nd accused's eye was caused whilst he was in police custody. There was no evidence placed by the prosecution to show how and when this injury was caused to 2nd accused.

[82] The only evidence placed before this court as to how and when this injury was caused is the evidence of the two accused persons.

[83] It is the duty of the police officers to give proper medical treatment when a suspect is in their custody. That was never done until the accused persons were refused entry by the gate keeper in prison. The injury to the eye of the 2nd accused is consistent with the alleged assaults on the 2nd accused when I consider the evidence of the accused persons.

[84] There was no legal representation for 2nd accused in the Magistrates Court. However, Counsel for 1st accused has informed the Magistrate that the confessions were made under duress.

[85] According to the evidence of the Nurse Practitioner, although she advised the police to bring the X-rays to see the internal injuries, police have never brought X-rays to her. Although the Nurse Practitioner's opinion on the injuries cannot be taken into consideration as she is not an expert witness, the evidence as to what she saw, heard and perceived can be relied upon and accepted.

[86] I am convinced that the 2nd accused has been subject to assault before the confessions and the charge statement were recorded.

[87] I disbelieve the evidence of the police witnesses that the 2nd accused was not subject to assaults whilst in police custody.

[88] Therefore, I find that the prosecution has failed to prove that the 2nd accused made the alleged confessions, voluntarily.

[89] Hence I find the said confession made in the caution interview statements and the charge statement by 2nd accused is inadmissible in evidence.

[90] The 1st accused says that he was assaulted at Border Police Station, Nadi, where he was made to strip naked, physically assaulted, chillie mixed with water was sprayed into his eyes and private parts. He was threatened to confess to the murders. He said that entire interview on 17/1/2010 is a fabrication and he signed due to assaults. He says that he was further assaulted and threatened on his return to CID Headquarters.

[91] As I said before when discussing the evidence, the police officers have never taken any of the accused persons to a medical officer. I bear in mind that 1st accused has not requested to be medically examined when he was produced before the Magistrate. However, he had complained that confessions were recorded under duress and it was a fabrication.

[92] He has complained to the Prison gate keeper that he was assaulted by the police and that he wanted to be medically examined. He has complained to the Nurse Practitioner that he was assaulted by police officers in Nadi. Nurse Practitioner has recorded that and advised the police officers to bring the X-rays back to her. Although the X-rays were done, it was not taken back to the Nurse Practitioner or a medical officer by the police. 2nd accused has complained to the Nurse Practitioner that he has tenderness and palpation of the back and chest. After making preliminary investigation and observations only, the Nurse Practitioner has ordered the X-ray to be taken and brought back to her.

[93] According to the evidence of the 1st accused as well as the 2nd accused, no weapon was used by the police officers to assault the accused persons, except using of capsicum spray and chillies. Therefore the complaint of the 1st accused to the gate keeper and the Nurse Practitioner are consistent with the evidence of assault given by the accused persons.

[94] I have carefully considered the evidence of the police witnesses that the 1st accused was never assaulted.

[95] Both accused persons testified that they were taken to the building near the Nadi Airport. Also police witnesses, except one, denied that they were taken to a building near Nadi Airport and said that the accused persons were taken to Ba Police Station straight from Nadi Police Station.

[96] The police witness, Inspector Iqbal Khan clearly stated that they went to the Border Police Station at Nadi Airport and that the 1st accused was picked up from there.

[97] However both accused persons testified that the 1st accused was picked up at Nadi Police Station and that only thereafter they were taken to Border Police Station in separate vehicles.

[98] The prosecution witness D/Cpl Mahesh Chand who drove the TCU vehicle said that he is 'pretty sure' that he never stopped at Nadi Police Station. However, all other police witnesses who travelled in the vehicle including ASP Abdul Khan testified that they stopped at Nadi Police Station to pick 1st accused. Even the accused persons have testified that 1st accused was picked up at Nadi Police Station.

[99] It was alleged by the 2nd accused that at Lami Police Station, ASP Abdul Khan and other police officers took him to a room upstairs where he was assaulted. Also ASP Abdul Khan said in evidence that at Lami Police Station he did not have any contact with 2nd accused. Further he said that he did not go inside the Lami Police Station and that he was inside the vehicle parked in front of Lami Police Station facing the charge room.

[100] However, the witness D/C 3581 Nancy Komaitai said in evidence that ASP Abdul Khan went inside the Lami Police Station and further said that ASP Abdul Khan was one of the officers who took the accused into the Lami Police Station.

[101] Police officers are expected to make their notes when they conduct or assist investigations. However, the evidence of the police witnesses for the prosecution especially the evidence of the officers of the TCU who assisted the investigation was unsatisfactory, tainted with contradictions which affects their credibility.

[102] I have observed the demeanor and deportment of the 1st accused and the way he faced the cross-examination by the prosecution. I am convinced that the 1st accused was subject to assault and oppression prior to the alleged confessions in the caution interview statements and the charge statement were recorded and signed and that he signed the confessions due to those assaults and oppression.

[103] I am inclined to accept the evidence of 1st accused that he was assaulted and oppressed and I find that the physical pain which he has complained of is consistent with the manner of assault said to have been received by him. Prosecution has not displaced this evidence.

[104] Therefore I find that the prosecution has failed to prove that the above confessions in the caution interview statements and the charge statement of the 1st accused were made voluntarily.

[105] Hence I hold that the said confessionary statements are inadmissible in evidence.

Priyantha Fernando
JUDGE

At Suva
18th July, 2011.