State v Temo - Voir Dire Ruling [2012] FJHC 1122; HAC60.2011 (22 May 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 060 of 2011

BETWEEN:

STATE
Prosecution

AND:

LEPANI TEMO
Accused

BEFORE : Mr. Justice Paul K. Madigan
COUNSEL : Ms. M. Fong for State
Mr. S. Waqainabete (L.A.C.) for Accused.

Dates of Hearing : 21 and 22 May 2012
Date of Ruling : 22 May 2012

VOIR DIRE RULING

1. The State seeks to adduce into evidence the record of a cautioned interview with the accused made at Taveuni Police Station on the 21st, 23rd and 24th November 2011 along with a formal answer to charge on the 24th November. The accused objects to the admissibility of these documents on the grounds of assault on divers days.
   
2. The test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional (now read Common Law) rights. The burden of pg that the the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that buremains on the State throughout. The standard is of course brse beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State.
   
3. ​Evidence of assault should I find it proved, amounts to an attack on the voluntariness of the statement in that assaults would sap the will of the accused, and render his participation as unwilling.
   
4. The accused by his counsel submits that he was assaulted and tortured by a party of Police Officers at Taveuni Police Station after he had finished the first day of his interview on the 21st November 2011. He says that he was taken into a room where a large stone was used to hit him on the legs and knees, where he was made to lie on the floor and was trampled on, hit and had chillies wiped all over his body.
   
5. Secondly, he claims to have been assaulted on the third and last day of interview when directing a reconstruction for officers from Taveuni. He was punched, hit with sticks and threatened. His knee was so badly hurt that he needed medical treatment as he was unable to walk. He submits that because of these assaults his will was sapped and he confessed to a crime he did not do.
   
6. To prove its case the State called evidence from 13 Police witnesses. They gave evidence that the accused was first brought to Taveuni Police Station on Sunday 20th November 2011, suspected of involvement in the homicide of one Susana Niubalavu. The following day an interview under caution was commenced conducted by DC Daniele. The interview, in the Fijian vernacular, continued that day with the accused denying allegations put to him. At the end of the day the interview was suspended for further enquiries to be made and did not continue until Wednesday 23 November. On the 23rd it resumed still with the accused making denials to the allegations put to him. The accused had been kept in a cell in the interval. At 1430h on the 23rd the interview was again suspended to look for exhibits at the accused's "camp" where he had been staying. The accused accompanied officers to the camp, retrieved clothing and then returned to Taveuni at 2010h when he was placed back in a cell. The interview resumed for its final day on Thursday 24th November, broken for a Court visit at 1100h until 1205h when it continued until 1332h when the accused again left the station with a party of officers for him to direct a reconstruction at the accused's dwelling at Qacavulo and then to the scene of the homicide at Soqulu. At these two sites the accused pointed out sites of interest before going back to the station to complete the interview from 1830h until 1950h. At the end of the interview it was read over to him at his request.
   
7. His record of interview was translated into the English language and both documents were properly produced before me as exhibits VDP1 and VDP1a.

   Photographs taken at the time of reconstruction were produced as exhibit VDP2.

8. The accused was formally charged for murder on the 24th November 2011 at the Taveuni Police station at 2200h in the Fijian vernacular. A written record of the charge and the accused's response to the charge was made by the charging officer, D/Sgt 502 Ravaga.

   The whole statement was read to the accused and he signed it as true and correct. This record of charge was properly produced in the proceedings as exhibit VDP2, with its English translation as VDP2A.

9. Officers were called who were either at the Taveuni Police Station at the same time as the accused or who were in the accompanying party to the search and reconstructions at Qacavulo and Soqulu. None of these officers assaulted the accused, nor subjected him to any other improprieties, nor did they witness or hear of any such assaults.
   
10. On the evening of the 25th November a Doctor was called to visit the accused in his cell. He was complaining of severe knee pain. The Doctor examined him, prescribed medicine and recommended that he be admitted to hospital for treatment. He was transferred to hospital the next day. His injury was found to be a swollen reddish knee with two sores on the outer skin. The doctor could see no other signs of injury or marks of violence. The injury he opined was cellulitis and an infected lesion. He was treated and an improvement noted.
    
11. The accused gave sworn evidence after his rights in evidence were explained to him. He told the Court that sometime in the afternoon of Monday 21st November at Taveuni Police Station he was taken to a room where there were present several officers. He was handcuffed and tied to a chair. He was hit on both legs with a stone the size of a rugby ball. He was made to lie down and his mouth was gagged. He was stripped and chillies were rubbed all over his body including his eyes and genitals. He was kicked and "stomped on". One officer (Mosese) ran all over him with boots on. He became incontinent and lost consciousness.
    
12. On the Thursday (24th) he was taken on a Police directed reconstruction with a party of five officers including his caution statement interviewer. When walking up to the house at Qacavulo he was beaten with fists and handcuffed. He fell down and was kicked and when he stood up he was beaten from behind with punches and what felt like a stick. He again fell down and when told to stand up he saw the officers packing up his clothes. When they got to Soqulu where the photographs were taken he w directed where to stand for the photographs.
    
13. The accused told me of his leg pain being experienced at the end of the week and on Saturday (26) he to go to the hospital. He couldn't walk and was carried into a vehicle and put on a trolley at the hospital where he saw a doctor and was treated.
    
14. The accused called one witness, a legal aid Officer who told the court that when she saw the accused on the first day of interview at Taveuni Station, he told her that he was being pressurised by the Police to admit the allegations being put to him. She admitted that despite that, she did not consider it necessary remain with him through his interview. She gave him appropriate legal advice instead.
    

    Discussion

15. The evidence of the Police Officers was consistent, honest and credible. Hey were at pains then to establish the true involvement of the accused in this homicide. I believe then and find their evidence reliable.
    
16. While the accused in giving evidence does not have to prove anything to me, the State having to prove their case beyond reasonable doubt, I did not believe his evidence. Had he been subject to the physical abuse he claims, he would have suffered far more injuries and displayed marks of abuse and violence than he then presented with. His knee injury could well have been caused by mishap "in the bush" as was an earlier ankle injury that he told the interviewer about. In the round, I prefer the evidence of the Police Officers over that of the accused.
    
17. The accused tells me that he changed his story on the third day of interview because of the assaults. I find that there were no such assaults and therefore the reason for him changing his stance in the interview remains unexplained by the evidence before me.
    
18. I find that the answers given by the accused on each of the three days of the interview were given freely and voluntarily as was his response to the formal charge of murder. There is no evidence before me of oppression which would cause me to exercise my discretion to exclude the evidence.
    
19. The cautioned interview and the charge statement are both admissible and may be led by the State in the trial on the general issue.
    

    Paul K. Madigan
    Judge

At Labasa
22 May 2012