State v Vunisa [2013] FJHC 554; HAC09.2012 (14 October 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL CASE NO: HAC 09 OF 2012

STATE

-v-

USAIA LUTUNAIVALU VUNISA

Counsel : Mr S Babitu for State
Accused in Person

Date of Trial : 04 – 08 October 2013
Date of Ruling : 14 October 2013

VOIR DIRE RULING

1. The State seeks to adduce into evidence the record of a caution interview of the accused on 4.1.2012. The accused objects to the admissibility of this document on the grounds that this statement was obtained after assaults, threats and oppression.
   
2. The test of admissibility of all confessional statement made to the Police officer, is whether that was made freely and not as a result of threats, assaults or inducements made to the accused by person or persons in authority. Further, oppression or unfairness also leads to the exclusion of the confession. Finally, where the rights of the suspects under Section 27 of the Constitution have been breached, this will lead to the exclusion of the confessions obtained thereby unless the prosecution can show that the suspect was not thereby prejudiced.
   
3. The preamble of the Judges Rules states as follows:
   

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

4. The Privy Council, In the case of Wong Kam-ming v The Queen (1980) A.C. 247, P.C., observed that:
   

"[t]he basic control over the 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."

5. The Fiji Court of Appeal in case of the Ganga Ram and Shiu Charan v R (FCA Crim. App.
   

46/1983) outlined the two-part test for the exclusion of confessions at page 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 beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as use of force, threats or prejudice or inducement by offer of some advantage-what has been picturesquely described as 'flatter of hope or thetyranny of fear.' Ibrahim v R (1914) A.C. 559; DPP v Pin 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 the police behaved, perhaps by breach of the Judges Rules falling short of over bearing the will, by trickery or by unfair treatment. Regina v Sanag [1979] UKHL 3; (1980) A.C. 402, 436CE). This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account."

6. It is for me to decide whether 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. Secondly if I find that there has been oppression or unfairness, then I can in my discretion exclude the interviews. Finally, if his rights under the Constitution or common law 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 such rights as having a legal representative of his choice and having access to family, next-of-kin or religious counselor.
   
7. The burden of proving voluntariness, fairness, lack of oppression, compliance with common law rights, where applicable, and if there is noncompliance, lack of prejudice to the accused rests at all times with the prosecution. They must prove these matters beyond reasonable doubt. In this ruling I have reminded myself of that.
   
8. Now I look at the evidence presented in respect of the caution interview.
   
9. The accused was arrested on 3.1.2012 at the residence of Maria in Tavarau by group of police officers led by IP Suliasi Ratu. Giving evidence he stated that the accused cooperate in the arrest and was taken to Ba Police station. He produced the Cell book entries that there is no record of injuries. In cross examination he denied any knowledge of police assault in the cell.
   
10. SC Meli Tamani, who also took part in the arrest, gave evidence next, corroborating above version. He also denied that accused was assaulted in the cell by Manoa.
    
11. Cpl. Tomasi and PC Sikeli, two officers who took part in the arrest gave similar evidence corroborating above version.
    
12. WDC Miriama Nadumu was the interviewing officer. She had conducted the interview at the crime office of the Ba police station. It was commenced at 12.30 p.m. on 4.1.2012 and was conducted in I-taukei language. The accused was given his rights. He was not assaulted, threatened or intimidated before, during or after the interview. There was no complaint from the accused. A reconstruction was done during the interview. There were no visible injuries on the accused. She identified the original notes of the interview, the translation and the accused. She also produced the station diary entries for giving meals to the accused.
    
13. The witnessing officer of the caution interview Cpl. Tamani was also called to give evidence. She gave a similar version to WDC Miriama. He denied knowledge of DC Aswin assaulting the accused before the accused was taken to reconstruction. He further denied assaulting the accused after returning to Police.
    
14. After the close of the prosecution case, I found a case to answer from the accused in the trial within a trial.
    
15. The accused gave evidence. His position was that he was not assaulted during the arrest. He was put to cell by Manoa at 9.53 p.m. He was asked to take off all his cloths. He was hand cuffed. He was asked to lie down naked on the cement. Something in a bottle was put in to his private parts with a stick wrapped in a cloth. Then he was kicked for about ½ an hour. He was naked with hand cuffs all night.
    
16. The following day he was taken to the interview. During the lunch break he was assaulted by Aswin with a baton on his stomach. When the interview was suspended for reconstruction, Aswin assaulted him in the cell. At the place of reconstruction Aswin and Tamani had assaulted him. On the way back he was taken to place he did not know and was assaulted again. After they came back Miriama had continued with the interview. After the interview he was taken outside by Manoa and was assaulted. Then he was taken to cell and assaulted there again for 30-40 minutes. The following day he was produced in Ba Magistrates Court.
    
17. In cross examination by the prosecution he said that other inmate in the cell saw him being naked and assaulted by Manoa. He said that he had no injury but he vomited blood. He was assaulted hard with a baton several times on the stomach. At the reconstruction he was assaulted with a 3 inch thick stick. Then he was assaulted for an hour by Aswin and Tamani. Miriama was present during this assault. Although he was assaulted by several persons in Police custody he did not have any injuries. He did not make a complaint to the Magistrate. He further admitted he never went to doctor to take treatment.
    
18. The accused also called Peni Roka as a witness. He was in the Ba police station cell on 3.1.2012. According to him when the accused was escorted inside the cell he was hand cuffed. Then chille was put on his face and he was repeatedly assaulted by a police officer.
    
19. When cross examined, this witness said that the accused was only asked to remove his jersey and he was punched on the ribs. The accused was wearing a three quarter the whole night. The officer had put chilies on the accused's face with hands.
    
20. I have carefully considered the available evidence in respect of the caution interview on 4.1.2012 of the accused.
    
21. Accordingly, I have come to the view that in regard to any allegation of assault by the police, the state had satisfied me beyond reasonable doubt that it did not happen. I reject the evidence of the accused that he was assaulted before, during and after this caution interview. I am satisfied that the interview was voluntary, that it was obtained in fair circumstances, that it was in no way oppressed or beaten out of the accused in contravention of his rights either under the Judges' Rules or of the Constitution which was not in operation.
    
22. The caution interview of the accused on 4.1.2012, being voluntary made and not created out of oppression is therefore admissible in evidence.
    

Sudharshana De Silva
JUDGE

At Lautoka
14th October 2013

Solicitors : Accused in Person
Office of the Director of Public Prosecutions