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State v Baleilevuka [2015] FJHC 212; HAC181.2013 (24 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


CRIMINAL CASE NO.: HAC 181 OF 2013


STATE


V


1. JOELI BALEILEVUKA
2. WATISONI SAGALAGILAGI


Counsels: Ms. L. Latu for the State
Ms. Lata for the 1st Accused
Mr. Anil J. Singh for the 2ndAccused


Date of hearing: 22 November 2014, 26 January 2015, 02 February and 25 February 2015
Date of Ruling: 24 March2015


Voir Dire Ruling


  1. The State seeks to adduce into evidence the record of the caution interviews of the twoaccused on 21.8.2013 and 23.8.2013.The twoaccused object to the admissibility of these documents on the grounds that these statements were obtained involuntarily through assaults, physical pressure, intimidation and threats by the police.
  2. The test of admissibility of all confessional statements made to the Police officers, is whether those were 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 previous 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."


  1. 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."


  1. The Fiji Court of Appeal in case of the Ganga Ram and ShiuCharan 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 the tyranny 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 overbearing 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."


  1. It is for me to decide whether interviews were conducted freely and not as a result of threats, assaults or inducements made to each 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 interview. Finally, if his rights under the Constitution or common law have been breached, then that will lead to exclusion of the confession 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.
  2. 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. Further, I am reminded that I have to consider evidence in respect of each accused separately.
  3. The defence objected to the admissibility of the caution interviews on the following grounds.
  4. The voir-dire grounds of the 1st accused are:
  5. The voir-dire grounds of the 2nd accused are:
  6. Now I look at the evidence presented in respect of the caution interview of each accused.
  7. The first witness was DC Penaia Drauna. He is an officer with 20years' experience. On information received he had arrested the 1st accused on 20.8.2013 near Burelevu village in Ra. When two police units surround him, the 1st accused had run down a cliff towards a river. IP Samisoni had directed the 1st accused to stop and he managed to arrest him. He was loaded in the Police twin cab and taken to the Rakiraki police station. He was not assaulted and there were no injuries.
  8. This witness had taken part in arrest of the 2nd accused on 21.8.2013 at Nakavu village in Nadi outside his house. He was sitting down with another accused. He was explained the reason for arrest. He was not assaulted and not injured.
  9. Under cross examination by the counsel for the 1st accused, he denied taking the accused to a road block at Naseyani in Tavua. The delay in taking the 1st accused to the police station was due to the time it took to load the other suspect who was unconscious. He denied threatening and verbally abusing the 1st accused. He denied punching, kicking and beating the 1st accused. He denied throwing the 1st accused to the river and beating him there. He admitted that 1st accused was in wet clothes and he did not offer him dry clothes.
  10. Under cross examination by the counsel for the 2nd accused, he said that the 2nd accused did not resist the arrest. He was taken to the Nadi police station crime office and not the bure behind the station. The 2nd accused was not assaulted in his presence at the Nadi police station.
  11. The second witness for the prosecution was ASP Samisoni Naqica. He is an officer with 24years' experience. On 20.8.2013 he had led the police team that arrested the 1st accused. No threat or assault done to 1st accused at the time of the arrest. First accused was not injured.
  12. Under cross examination by the counsel for the 1st accused, he denied asking the 1st accused about robbery when he first met him. He denied punching, kicking and beating the 1st accused there. He admitted that they went to Naseyani in Ra for refuel after the arrest of the 1st accused before going to the Rakiraki police station. He denied beating, punching and kicking the 1st accused at Naseyani.
  13. Under cross examination by the counsel for the 2nd accused, he admitted taking out the accused from the cell in Lautoka police station on 23.8.2013 at 10.15 a.m. He denied interrogating the 2nd accused for 59 minutes thereafter before taking him out. He also denied taking him to a hill top on the way and repeatedly punching the 2nd accused on stomach after questioning him. He admitted that he escorted the 2nd accused from Lautoka police station to Rakiraki police station.
  14. The third witness for the prosecution was D/Cpl. Seruvi Caqusa.He had taken part in the arrest of the 2nd accused from his house in Nakavu village in Nadi. He was taken to Nadi police station. He was not threatened, assaulted or abused at that time.
  15. Under cross examination by the counsel for the 2nd accused, he said that the 2nd accused was taken to the bure which is the crime office at the Nadi police station and handed over to a team from Lautoka police station. He admitted that the 2nd accused was kept in Nadi police station for 22 hours and 38 minutes. The 2nd accused denied the allegation against him. He denied that the 2nd accused was subjected to threat and abuse when he denied the allegation. He denied assaulting the 2nd accused. The accused was kept in Nadi till the escort team came.
  16. The fourth witness for the prosecution was DC Sailosi Bawaqa. He had caution interviewed the 1st accused on 21.8.2013 at Rakiraki police station in the crime office. Inspector Isireli was the witnessing officer. It was in question and answer format. Interview commenced at 15.30 hours. He was asking the questions and the 1st accused was giving answers. The 1st accused did not make any complaint before, during or after the interview. The 1st accused was given his rights. The interview was concluded at 11.11 hours on 23.8.2013. A reconstruction was done during the interview. He had charged the 2nd accused on 25.8.2013. The 2ndaccused had not made any statement in the charge.
  17. Under cross examination by the counsel for the 1st accused, he stated that the 1st accused was given opportunity to contact a legal representative of his choice or legal aid counsel. But he was not given the telephone to use. He admitted that the 1st accused was taken out of cell at 2.08 p.m and the interview was commenced at 3.30 p.m. He was first taken to the charge room and then to the crime office. He denied assaulting the 1st accused at that time. He denied threatening the accused to confess. He denied other officers assaulting, kicking and punching the 1st accused during this time. He denied forcing the 1st accused to sign the caution interview after hitting, beating and abusing him. He had not taken the 1st accused to a doctor. He denied telling the 1st accused during meal hours that he will not have meal if he did not confess.
  18. The fifth witness for the prosecution was Inspector Isireli Vananalagi. He was the witnessing officer of the interview of the 1st accused. He was present during the entire interview. The 1st accused had not made any complaint before, during or after the interview.
  19. Under cross examination by the counsel for the 1st accused, he stated that 1st accused was not allowed to use a telephone. He denied that he and other officers were kicking and punching the 1st accused on the head and chest when he is interviewed by officer Sailosi. He denied that the 1st accused was forced to sign the interview. He denied that meals were given on a condition. He admitted that he gave dry clothes to the 1st accused on 21.8.2013 at 8.00 a.m and accused was in his underwear prior to that.
  20. The sixth witness for the prosecution was DC Anoop Kumar. He is the investigating officer of this case. He identified the 1st and 2nd accused in court. He stated that they were not assaulted by him or his collogues in Rakiraki police station.
  21. Under cross examination by the counsel for the 1st accused, he admitted that he was present in the station when 1st accused was arrested and brought to the station. He was not present at his caution interview. He had seen the 1st accused at 8.00 a.m on 21.8.2014. He denied telling the 1st accused that if he does not confess, he will not be given meals. He admitted that the caution interview of the 1st accused commenced at 15.30 hours. He denied that he, Sgt. Bawaqa and Ins. Vananalagi assaulted and threatened the 1st accused before the caution interview. The 1st accused was not produced before a Magistrate with 48 hours of his arrest. However, permission was granted by a Magistrate to keep him in custody. The 1st accused did not request for a medical examination. Thus he was not taken to a doctor. He denied that 1st accused was not taken to Magistrate within 48 hours as he was beaten and badly injured. He denied going to lockup and threatening the 1st accused to confess.
  22. Under cross examination by the counsel for the 2nd accused, he stated that the 2nd accused was arrested at Nadi on 23.8.2014. He agreed that he sought extension of 48 hours rule as otherwise he will breach constitutional provision. He had not checked the interview of the 2nd accused to see whether it complied with the constitution.
  23. The last witness for the prosecution was DC Petero Narokolevu. He had caution interviewed the second accused on 23.8.2013 at Rakiraki police station crime office. There was no witnessing officer. It was in iTaukei language in question and answer format. He identified and tendered the original caution interview statement. It was translated to English by his wife, who is also a police officer as he was at the Police academy attending a course. The 2nd accused did not make any complaint of assault. He was not forced, intimidated or punched to give the answers. He was normal during the interview. He identified the accused in Court. The caution interview and translation was tendered marked VD 2 A and B.
  24. Under cross examination by the counsel of the 2nd accused, he said that he was not aware that before the interview the right of silence should be given. He admitted that in this interview he had not given the right of silence and consequences properly. He denied that the 2nd accused was threatened and abused to admit the robbery during and before the interview. The 2nd accused did not complain about abdominal pain and pain in rib cage. In question 38 he was exercising his right of silence. In question 39 the 2nd accused was given a warning and he was made to sign there. The reconstruction is not recorded in the interview. The 2nd accused was not threatened when the warning was recorded.
  25. In re-examination he stated that not recording the reconstruction was his mistake. He was not involved in the arrest of the 2nd accused. He did not make the entries in the station diary. He had over looked to put the right of silence to the 2nd accused.
  26. After the close of the prosecution case, I found a case to answer from both accused in the trial within a trial and explained each accused his rights.
  27. First accused gave evidence.
  28. First accused stated that he wants to give evidence about brutality of the police done to him in order to confess. During arrest police assaulted him. When he was taken to the station he was threatened and when he was interviewed he was fully assaulted. When he was arrested his pockets were searched and $1875 was found. He told police that he is going to buy something. He was told that with that amount of money he is involved in the robbery. He was arrested near a river 5chains away from a village around 11.00 p.m. on 20.8.2013. He had come with Peni Samuta. When he went to relieve himself, he met a man going towards the village. When he was talking to that man police came. There were nine officers in civilian clothes. Five of them escorted his friend to the river bank. Other four escorted him later. Police officers assaulted him. He fell on the ground. Then he was kicked on back and thrown to the river. He was told to confess.Then he will be taken out of the river. ASP Samisoni, Penaia, Senitiki and Taoni kicked him. Samisoni and Senitiki threw him to river.
  29. Then he was taken to Naseyani near Tavua to the road block. He was left alone in the vehicle and the officers went out. The officers at the road block came and kicked and punched him. After that they went away. Then he was taken to Rakiraki police station. He was left naked to sleep in the cell. He asked for dry clothes but was not given. He was threatened. Next morning interviewing officer told him that if he want to give the statement he will not receive his breakfast.
  30. He was taken to the crime office for the interview. He was informed of his right but not given. He asked them to take him to the hospital but it was not done. Tulele saw him sleeping naked in the cell. During interrogation before the interview, he denied the allegations. Then he was kicked and punched again to say yes. Sailosi, Vananalagi and Anoop assaulted him. When he was sitting in a chair one of them grabbed him from the neck while another was punching his stomach and chest. When he fell on the floor he was kicked in order to sign the statement. He was forced to sign the statement. He was charged next. He was not taken to Court with 48 hours. On 23rd the 2nd accused and 5th accused saw his injuries. He was not given right to speak to a lawyer. His wife was not allowed to speak to him. Although he asked for phone to contact a lawyer it was not given. He was forced to sign a search list before he was taken to Court.
  31. Under cross examination by the state, he stated that he did not make a complaint to Magistrate when he was produced in Court. He was assaulted at the station only during the interview. He did not request the Magistrate for a medical examination. At the time he was brought to Court the injuries were healed. At the time of arrest, all officers punched and kicked him. Then he was thrown to the river. One officer was holding him drowning and pulling him up several times till he confessed. He did not have any visible injuries after arrest as police officers knew where to hit so that there are no visible injuries.
  32. The 1staccused called 5th accused to give evidence on behalf of him. The 5th accused stated that on 23.8.2013 while being kept at the cell block of the Rakiraki police station he saw that 1st accused's face was red and it was like he being punched. One eye was swollen and also part of his head. This witness was not cross examined by the 2nd accused or the state.
  33. The 2nd accused also gave evidence. On 21.8.2013 around 4.00 p.m when he was at home in Nadi, 8 police officers came and assaulted him. He was taken down to Nadi police station. When he questioned about robbery he told that he has no idea about it. Then he was verbally abused. He was hand cuffed and made to sit on a chair. He was slapped on his back and head. He was taken to cell after 6.00 p.m. Next day after 5.00 p.m. he was transferred to Lautoka. He was verbally abused and assaulted on the following day at the crime office of the Lautoka police station around 10.15 a.m. He was punched on the stomach and the side of the ribs. He was hand cuffed and made to lie on the floor. They stood on him and were pulling his hands upwards. He was told to admit the allegations. He told that he did not know anything. Then he was taken to Rakiraki police station. On the way they stopped at Teidamu. He was questioned again regarding the allegation and was further assaulted. They punched him on the chest thrice. He had red marks.
  34. At Rakiraki he was taken to crime office. Police did not offer him a telephone to make a call to a lawyer. There, five officers threatened him using abusive language. He was told that if he did not admit he will be hit with an iron rod on the table. He felt scared. He was also told if he did not admit he will be made paralyze as the suspect who is admitted to the hospital. He was really scared. Then he agreed to take part in the interview. He was not given right of silence.
  35. When the Court asked him whether he was given the caution in question 11 of interview in iTaukei he admitted that it was given to him. He never told police that he waived his right of silence. The question 11 is a very long question with the allegation. There is no answer recorded for that question.
  36. He admitted that in question 38 he gave the answer that he will give his answer in Court. When that answer was given the interview was suspended. When the officer came back the right of silence was not given again. Police said that they would like to warn him that the interview will be continued. This interview was given through fear. He was afraid because of what happened to him in Nadi, Lautoka and Rakiraki police stations.
  37. Under cross examination by the counsel for the 1st accused he stated that when he saw the 1st accused on 23.8.2013 in the cell, he was weak and one side of his head was swollen. When he vomited, blood came out. One eye was also swollen. He saw this at the time he went to Rakiraki station at 2 minutes to 2. The 5th accused was also in the cell.
  38. Under cross examination by the state he stated that he did not complaint to the Magistrate when he was produced in Court on 27th. He admitted that when he was produced in Rakiraki, there was no visible injury with blood coming out but there were red marks. When his attention was drawn to cell book entry at 13.55 hours that there were no fresh marks of violence he said that they did not take off his clothes to see his entire body.
  39. I have carefully considered the available evidence in respect of the caution interview on 21.8.2013of the 1staccused and the caution interview of the 2nd accused on 23.8.2013 separately.
  40. The first accused had not alleged that he was assaulted by Police officers in his voir-dire grounds. But his position in the voir-dire inquiry is that he was assaulted by the police officers at the time of arrest as well as on the way to the police station. The officers who gave evidence rejected these allegations. The first accused stated that he did not have any visible injury due to assaults by the police officers. But the 5th accused who was called by the 1st accused stated that he saw visible injuries on the face of the 1st accused. The 2nd accused too stated that he saw visible injuries on the 1st accused. There are 146 questions and answers in the caution interview of the 1st accused.
  41. Having heard the evidence by prosecution and the defence, I accept the evidence of the police officers that caution interview statement of the 1st accused was recorded fairly, without any assault or threat. I have considered the demeanor of all the witnesses who testified before me in respect of the 1st accused. Therefore, caution interview statement of the 1st accused on 21.8.2013 is admissible in evidence.
  42. The main grounds of the 2nd accused were that he was not given the right of silence and he did not make any admissions to the police. The interviewing officer admitted that he did not give the right of silence. The interviewing officer had cautioned the accused after question 11 with the charges against the 2nd accused and that 'You are not obliged to say anything if you wish to do so, whatever you say will be taken into written and may be given as evidence.' Therefore, there is clear evidence that the 2nd accused was cautioned. Further in answering questions38, 43 and 44 the 2nd accused had stated that 'I will answer that in court'. This is a clear indication that the 2nd accused was well aware of his right to silence. There are 142 questions and answers in the caution interview of the 2nd accused.
  43. Having heard the evidence by prosecution and the defence, I accept the evidence of the police officers that caution interview statement of the 2nd accused was recorded fairly, without any assault or threat. I am satisfied that 2nd accused was cautioned about the right to remain silent and he was aware of his right considering the answers given to questions 38, 43 and 44. I have considered the demeanor of all the witnesses who testified before me in respect of the 2nd accused. Therefore, caution interview statement of the 2nd accused on 23.8.2013 is admissible in evidence.
  44. I am of the view that this position taken up by each accused is highly improbable. None of the accused made any complaint to the Magistrate. For these reasons, I am unable to accept the version of each accused when I apply the tests of consistency, probability and belatedness.
  45. 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 am satisfied that each interview was voluntary, that that was obtained in fair circumstances, that those were in no way oppressed or beaten out of each accused in contravention of their rights either under the Judges' Rules or of the Constitution which was not in operation.
  46. The caution interview of the 1st accused on 21.8.2013 and the caution interview of the 2nd accused on23.8.2013, being voluntary made and not created out of oppression is therefore admissible in evidence.

Sudharshana De Silva
JUDGE


At Lautoka
24th March 2015


Solicitors: Office of the Director of Public Prosecution for State
West Law for 1st Accused
Anil J Singh Lawyers for 2ndAccused


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