State v Nalave [2011] FJHC 692; HAC029.2004L (2 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 029 OF 2004L

BETWEEN:

THE STATE

AND:

1. ALESI NALAVE
First Accused

2. KELERA MARAMA
Second Accused

Mr T. Qalanauci for the State
Mr R. Chaudhry for both accused

Date of Hearing: 6th, 7th October 2011
Date of Ruling: 2nd November 2011

RULING

[1] The State is seeking to adduce into evidence at the substantive trial, one interview conducted under caution with the first accused on the 18th and 19th June 2004 along with a Charge Statement made on the 20th June 2004 both of which contain admissions to the charge of murder that the first accused is facing: while in respect of the second accused the State seeks to rely on an interview she made under caution on the 19th and 20th June 2004 and a Charge Statement made on the 20th June 2004, both of which too contain admissions to the charge of murder she is facing.

[2] The accused objects to their admissibility on the grounds of assaults, threats, inducements and oppression during the interviews. A letter sent to the State prior to the voir dire lists the objections in most general terms in that both accused were beaten by officers, that there were threats, that they were interviewed over long hours and that each was promised that she would be released if she implicated the other in her interview. Such very general objections are to be deprecated: the State is entitled to know in exact detail what the allegations are in order to prepare adequately for the voir dire and the Court needs to know too, so that the issues can be confined and time wasted on irrelevancies, as happens so often, can be saved. This case is a prime example of the all general, "scatter-gun" approach where multiple all encompassing objections are launched in the hope that one or more of the objections might "hit home". In these proceedings some of the objections were not developed and more objections were picked up and relied upon as proceedings developed. It should now be appropriate and in the interests of an efficient voir dire that Counsel provide specific and detailed objections to the creation of the records sought to be challenged, and if it is not provided for the prosecution and the Court to insist on it.

The Legal Tests

[3] The Fiji Court of Appeal in Ganga Ram and Shiu Charan v R 1983 (unreported) outlined the two-part test for the exclusion of confessions at p.8:

"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 (sic) 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) A.C. 599; DPP v Ping Lin (1976) A.C. 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) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorise the matters which might be taken into account."

[4] It is for me to decide therefore whether this interview was conducted freely and not as a result of threats, assaults or inducements made to the accused by a person or persons in authority [in this case obviously the Police]. Secondly, if I find that there has been oppression or unfairness, then I can in my discretion exclude the interview. Finally, if her common law rights have been breached, then that will lead to exclusion of the confessions obtained thereby, unless the Prosecution can show that the suspect was not thereby prejudiced. These rights include the right (i) to have a legal representative of his choice and (ii) have access to family or next of kin present.

[5] I am conscious of the fact that these proceedings are in respect of two accused and therefore the case against each must be looked at separately. The evidence for or against one is not necessarily applicable to the other.

[6] The burden of proving voluntariness, fairness, lack of oppression, compliance with the Constitution, where applicable, 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. In this ruling I have reminded myself of that.

Judges' Rules

[7] Counsel for the accused relied to a large degree on the Judges' Rules and what he submits were flagrant breaches of those rules, thereby rendering the statements inadmissible.

[8] The Judges' Rules were first formulated in 1964 in England by the Judges of the Queens Bench Division. They were adopted in Fiji on the 9th January 1967 by the Judges of the (then) Supreme Court (now the High Court). It is important to note that they are not rules of law but rules of practice drawn up for the guidance of Police Officers. Obviously a system of rules will ensure fair and consistent questioning of suspects, and to exercise control over how Police questioning is to be done. They lay down a proper course that a Police Officer should take in various stages of an investigation. It is a Code of Conduct that the Police should adhere to. Should the rules be breached then police risk that any evidence obtained there from may be excluded at trial on the Court's discretion.

[9] In the English Court of Appeal in R v Prager (1972) 1All E.R.1114, Lord Edmund Davies said:

"It's acceptance would exalt the Judges' Rules into rules of law. That, they do not purport to be, and there is abundant authority for saying that they are nothing of the kind. Their non-observance may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the Judge's decision whether, breach or no breach, it has been shown to have been made voluntarily. "(Page (1118j)

The Evidence

[10] The evidence given for the prosecution in the voir dire was given by 13 Police Officers, 2 civilians and one medical officer.

[11] The Police witnesses told of the arrest of the first accused on the 18th June 2004 and of the second accused the next day. The arresting officer of the first accused told her why she was bring arrested but admitted that she was not cautioned at the time. No assaults, threats or promises were occasioned to her on arrest. Corporal Penaia was part of the team investigating the first accused and he did not see any improprieties to her, although he did say in cross-examination that he knew the two accused had complained of assault during their arrest; a complaint that was made at some stage after the investigation. No other officer alluded to any complaint from the two suspects. An exhibit writer at Nadi Police Station told the Court that despite diligent searching, she could not locate the station diary nor cell book relating to this period in 2004.

[12] Two civilian witnesses, both of a similar age to the two accused persons gave evidence that each was asked to attend at the Nadi Police Station on the 18th June 2004 at the time that the first accused was being interviewed under caution. The first accused had apparently implicated a boy named Tomasi and said that each of the two civilians knew this Tomasi. Both witnesses said that they recognised the first accused; they both said that they knew no such person as Tomasi, the female civilian going so far as to say that the first accused was lying to the Police. Neither of these witnesses saw any improprieties nor did the first accused make any complaint to either of these witnesses.

[13] A lady medical officer who at the time was acting Senior Medical Officer, Nadi Hospital examined each of the accused at two separate times on the 20th June 2004. Each was examined in the presence of a nurse and of a female Police Officer. She said that there was no interaction with the Police during the examination, they merely stood in the doorway. Her examination of the first accused revealed no signs of injury; she was mentally fit and she made no complaint to her of Police impropriety. An examination of the second accused later in the day revealed a 1cm x 0.5 cm laceration on the top of her right index finger. There were no other injuries. She too made no complaint to her about the Police.

[14] Both gave their consent to the examination and both confessed to their role in the murder.

[15] In an unnecessarily aggressive and most unpleasant cross-examination of the good Doctor, Counsel for the two accused suggested to her that she had produced her two medical reports solely to suit the Police. He put to her that she had no authority to disclose the confessions to the Police and criticized her for putting the information gleaned from the two suspects into a separate Police statement when it could have been put into the report itself. The Doctor contended that she did not want to "clutter up" an otherwise straightforward medical report. She insisted that the incriminatory information given her by the suspects was voluntarily provided.

[16] WPC Sainimili was the witnessing officer to the interview with the first accused. She told the Court that the accused was told of her rights. She had spent some time with the accused before the interview and was with her throughout the interview which take place between 3.35pm on the 8th June 2004 and 10.35pm on the 19th June. There was also a reconstruction done at the Frequency Lounge to which she accompanied the first accused. All the time WPC Sainimili was with the first accused she saw no assaults, threats or promises being meted out, nor did she herself do anything improper to the suspect. She was afforded all her rights in law, she was fed and given time to rest and to sleep. She understood perfectly what she was being interviewed for. The first accused never made any complaint to her about anything. In cross-examination she admitted that she was with the first accused for nearly four hours before the interview started; that they had chatted for some of that time, including talking about "aspects" of the case and that she had not cautioned her. She denied that inducements of going home early were offered to the suspect she gave the answers required.

[17] Sgt. Prasad was the officer who formally charged the first accused on the 20 June 2004 at Nadi. He explained to the accused her rights and she understood. There were no improprieties occasioned to the suspect at the time, nor did he see any injuries on her. She made the statement in answer to charge of her own free will and there was no force on her to do it. In cross-examination Mr Chaudhry suggested that he acted in breach of the Judge's Rules (rule 3) in that he never told the first accused that she had the option of writing the inculpatory statement herself or having someone else write for her. In addition he submits that she was only educated to Form V level and her rights should have been properly "spelt out".

[18] WPC Ilisapeci was the witness to the interview under caution of the second accused (who is also known by the name of Mereseini Adimaitoga). The interview commenced at 1910h on the 19th June 2004 and was completed on the 20th at 1550h. It too included a reconstruction at the Frequency Lounge. The interviewing officer, Cpl Delai Tikoilomaloma has since passed away. She stated that there were no assaults threats or promises made during the interview; the second accused was given all her rights and she gave the answers to the interview voluntarily and of her own free will. In cross-examination she admitted she was with the second accused for about 2 ½ hours before the interview commenced. They were not alone, the afternoon staff personnel were also with them in the charge room. They conversed briefly for 10 minutes about why the accused was in the charge room, but never talked after that. Witness cannot recall if she cautioned her then or not.

[19] DC Apete was the officer who formally charged the second accused. The charging was conducted between 1600h and 1649h on the 20th June 2004 at Namaka, and it was done in the Fijian vernacular at the request of the accused. There were no assaults or threats made, nor were any promises or inducements held out. She was given her rights and she made the incriminating statement in answer to the charge quite voluntarily. In cross-examination he agreed that he was not aware of the suspects' educational level and if he had been he may have explained her rights to her in more detail.

[20] WPC Wara was the witnessing officer to the charge. She said the second accused was given her rights and that they were explained to her orally. She saw no visible injuries on the suspect nor was she the perpetrator of or a witness to any assaults or threats. No promises or inducements were made. She was not aware of any complaints made by the suspect. She later accompanied the 2nd accused to the hospital for her medical examination. Nothing improper happened at the hospital. In cross-examination she agreed with counsel that her rights were not fully explained to her and that Judges Rule 3 was not complied with during the charge statement. She said that at the hospital Ilisapeci did all the talking to the doctor, even though the witness stayed outside for the whole examination.

[21] WPC Ledua escorted the second accused to Sabeto for an over night stay in the middle of her caution interview and escorted her back again in the morning. She saw no assaults, heard no threats, nor heard any promises or inducements. The second accused made no complaints to her about mistreatment by any Police Officer. She was not able to locate entries in the station diary to substantiate her movements to and from Nadi .

[22] DCorp Mahesh Chand was the investigation officer of this homicide enquiry. He was responsible for assigning officers to the enquiry and giving them specific tasks. During the investigation he received no information as to improprieties occasioned to either of the accused. He visited each accused while she was in custody and neither made any complaint to him as the Senior Officer. He saw no injuries on either of them, but he sent them to hospital after they had made their cautioned interviews to check they had no injuries. In cross-examination he revealed that he had taken custody of the Nadi Station Diary that had been missing. He kept it because as investigation Officer it was his responsibility to produce it in Court. He was unable to point to entries in the Station Diary showing times that he had visited each of the accused while in custody.

The Evidence of the Two Accused

[23] The first accused gave sworn evidence telling the Court that she was arrested on the 18th June 2004 in Nakurakura. She was told she was a suspect but "no rights" were given at the time. She got into a police vehicle and was taken to Nadi Police Station and taken to the Crime Room by Sgt. Peni. WPC Sainimili was already there. In the Crime Room they were "just asking questions. They didn't tell me of my rights". The questions went on for more than one hour and then there was a break for lunch. She was then put in a cell and she was told to tell everything that had happened at Frequency Lounge and who was with her. Sgt Peni kept coming back to the cell and said "make it easy. Let us know who was with you and we will let you go". After 7pm she was taken back to the Crime Office and the interview preparation started. They didn't explain to her her rights, words such as "rule of caution". She was made to give the answers and was never told that she could refuse to answer. The interview was suspended for the night and resumed the next day after breakfast. That morning she was afraid (a word "suggested" by her counsel) because the officers had threatened to throw her out of a second story window if she did not give the information quickly. She was told that by Corp Penaia. He came into the interview room during a lunch break and made her lie on a desk and hit her knees with a Police Baton. He hit her with "heavy" blows four times on each knee. She was told not to say anything to the Magistrate when in Court. On the following day she was taken to hospital in the morning where she had a complete medical examination in the company of a nurse and of a WPC Ranjani. She wanted to complain about the pain on her knees after the baton attack, but she couldn't with the Policewoman there. The examination lasted about 15 minutes and she did not tell the doctor anything about the alleged crime. She said that the answers in her interview and the statement in the charge were not given freely because she was afraid, especially of Corp Penaia because he was swearing at her. She denied in cross-examination that the four heavy blows to her knees with the Police Baton caused any injury- "just pain", and she admitted to me that she lied to the Police when she told them about a boy called "Tomasi".

[24] The second accused also gave sworn evidence. She is 26, unmarried and unemployed. On a Saturday in June, she was at work as a waitress in a nightclub when the Police came and asked her to accompany them to help with enquiries. She didn't know why she was being taken but voluntarily went in any event. She was taken first to Lautoka, then to Namaka, and finally to Nadi. She was never told why she was being taken in, and she was afforded no rights. At Nadi she was taken to the CID room where she saw the first accused. She was told to sit. There was a WPC with whom she had a conversation about why she had been brought in. The lady did not give her her rights; other males were present at the time. She said that Sainimili was asking her questions: she swore at her and told her not to lie, because the first accused had already told them that the second accused was involved. During this conversation, Corporal Penaia came in with his Police Baton. He tapped her on the back and then hit her on the back of her head with it. It did not injure her because she "had her hair tied". Corp Mahesh then came to her and said to her to wait until they found someone to interview her. He said that if she lied he would throw her out of the window. She was afraid because there were so many officers there all questioning her and she was scared of being harmed. She was taken by Delai and Ilisapeci to be interviewed. She was told her rights but she was never offered a Legal Aid lawyer. She was given meals, but no breaks apart from visiting the wash room when needed. She was taken overnight to Sabeto where she slept with no bedding. The next day, when formally charged she was not told of her rights and she was not told that she had the right not to sign it. She was taken to the hospital for a medical check where they Police briefed the doctor. WPC Ilisapeci was present throughout the examination. She never had a chance to speak privately to the Doctor. On her first visit to the Magistrates Court she didn't complain to the Magistrate because she was afraid of being assaulted by the Police. In cross-examination she agreed that the interview had been in the Fijian language, that she understood what was being asked of her, and that she signed it. She agreed that she had made no complaints to anybody about her treatment at the hands of the Police. She admitted that she gave her answer to the charge voluntarily and that the answers in the interview "of her own free will". In re-examination she said that she didn't know the meaning of own free will, but she did understand what voluntary meant. In clarification, the Court asked her if the answers she gave were the answers she wanted to give and the answer was: "yes- they came to my mind and I gave them as answers."

Analysis

[25] Both the State and Defence have filed written submissions on the issues raised in the voir dire. I repeat what I said earlier, in that it is for the State to prove to me beyond reasonable doubt that all four documents that they wish to tender in evidence on the general issue were made voluntarily and that being so that there was nothing oppressive that might cause me in my discretion to exclude them. I must and do look at the case of each accused person separately.

[26] Apart from one troubling aspect, to which I will return, I found that the evidence of the Police Officers to be consistent, reliable and believable. They all (save Corp Penaia) told me that there were no assaults, threats, promises or inducements and I believe them. Corp Penaia's evidence that he had heard that the accused had complained of assault is the matter that initially gave me cause for concern. Penaia says that they had complained that they were assaulted on arrest, the complaint being made sometime after the investigation was completed; however that was never borne out by the evidence in this hearing. Assault on arrest was not one of the grounds of objection to admissibility and neither accused gave evidence of assault when describing their respective arrests. After hearing Penaia's evidence, they both then seemed to have adopted him as the "villain", each accused testifying that she was assaulted by him in the C.I.D. Room with a Police baton, the first accused being hit on her knees and the second accused on the back of her head. This was a matter never raised in the initial objections, nor was it a matter put to the officer when he gave evidence, as of course it should have been. The complaint smacks of recent invention and I disregard it.

[27] Of course, neither of the accused have to prove anything to me in their evidence; the burden always remaining on the State to prove that the statements were made voluntarily. However I prefer to accept the evidence of the Police Officers over that of each accused. It is unfortunate that in this ruling I have to make findings of credibility against both of the accused, but the very nature of a trial within a trial demands of the trial Judge that he makes such findings.

[28] In contrast to the Police evidence, I find that the evidence of the two accused persons to be contrived, implausible and unconvincing. The evidence appeared to the Court to be "coached". References were made to "no rights given" at times when, would they be as unsophisticated as Mr Chaudhry would have me believe, it would not be natural for a witness to make such a spontaneous reference.

[29] For example, evidence that the first accused was "afraid" can carry no weight whatsoever when that state of being is suggested by her counsel in his question: "how were you feeling at this time...afraid?"

[30] Counsel for the accused devoted much of his time both in cross-examination and in his written submissions in trying to show to the Court that the medical officer who examined the two girls for injury after they had completed their interviews, was working with the Police and was keen to produce a report and a police statement that would please them.

He submits that the doctor had no authority to disclose confidential information she had received during the examination, and even if she did receive such information (which his clients deny) she should have included it in the report and not made it the subject of a subsequent Police statement. The purpose of the Doctor's evidence was to show that the two suspects were delivered up by the Police following investigation without injury or any other signs of abuse. What actually transpired in the hospital and how the Doctor recorded her findings is irrelevant to these proceedings: she is not a person in authority nor is she part of the investigation team. Whether the "confessions to murder" during the medical examination came from each accused, or from the accompanying WPC has no bearing on the voluntariness of the four inculpatory Police documents I am to consider, nor can events in the hospital after those documents were generated possibly have influence on my residual discretion to exclude them because of unfairness.

[31] The initial grounds of objection provided to the State claim that each was promised early release should she implicate the other in her cautioned interview. The evidence did not bear out that objection. That aspect was never mentioned by either accused in her evidence.

[32] It was also a matter relied on by Counsel for the accused that each was only educated to Form 5 level and was therefore in special need for their rights to be fully explained to them to make up for a low level of education, and for the fact that "neither had a decent command of English. This submission appears to ignore the fact that a choice of language for the purposes of the investigation was offered to both accused; the first accused choosing to be interviewed in English, "because I understand and speak the language daily". The second accused elected to be interviewed in the Fijian vernacular. Form 5 is the second highest level of secondary education and anybody graduating from that level and with a few years working experience added to their curriculum vitae could in no way be said to be unsophisticated or uneducated, needing special attention in a Police interview. In any event it is not part of Police duty to enquire into the level of education of a suspect before questioning. The procedures set out in the Judge's rules are all embracing and I do not find that either of the two accused has been unfairly prejudiced by what counsel claims is a failure to explain the rights in "simple terms".

[33] The transcripts of the interviews and charge statements show that all rights in law were told to each accused. Neither accused said "I don't understand", nor did either accused before me say that she did not understand the rights that were being afforded her.

[34] Before each of the accused was interviewed there is evidence that she was in the company of a female police officer; WPC Seinimili for the first accused and WPC Ilisapeci for the second accused. Both officers said that they talked about why the girls were in the station and a little about the case, but no details were given of what was said. Counsel for the accused submits that such conversations taint the interviews, especially when neither WPC cautioned the respective suspect. However it is quite clear that these conversations were not in the nature of exploratory questioning regarding the alleged offence which would obviously need a caution to be administered. They were more in the way of social intercourse between the officer and her charge.

[35] I find beyond reasonable doubt that all four of the investigation documents (that is the interview and charge for the first accused and the interview and charge for the second accused) were generated voluntarily; in fact the second accused even told me in her evidence that the answers to both were given voluntarily.

[36] Furthermore, I find that there is nothing unfair or oppressive which would cause me to exercise my discretion to exclude any of the four documents. Both suspects were given reasonable rest periods, meal breaks, comfort breaks and each accused was able to sleep overnight when her interview was suspended for the day.

[37] Both cautioned interviews and both answers to charge can be led in evidence in the trial on the general issue.

P.K. Madigan
JUDGE

At Lautoka
2 November 2011.