State v Colanaudolu - Ruling on Voir Dire Hearing [2017] FJHC 381; HAC121.2016S (12 May 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 121 OF 2016S

STATE

vs

JOSUA COLANAUDOLU

Counsels : Mr. L. Burney and Ms. S. Lodhia for State
Mr. M. Fesaitu, Ms. L. David and Ms. S. Daunivesi for Accused
Hearings : 1, 2, 3, 4, 5, 9, 10 and 11 May, 2017
Ruling : 12 May, 2017

RULING ON VOIR DIRE HEARING

1. The accused was charged with four counts of “abduction”, contrary to section 252 of the Penal Code, Chapter 17 and section 282(c) of the Crimes Act 2009 (counts 1, 3, 5 and 9); six counts of “rape”, contrary to sections 149 and 150 of the Penal Code, Chapter 17 and section 207(1) and (2)(a) of the Crimes Act 2009 (counts 2, 4, 6, 8, 10 and 11); one count of “indecently annoying females”, contrary to section 154(4) of the Penal Code, Chapter 17 (count 7) and one count of “murder”, contrary to section 237 of the Crimes Act 2009 (count 12).
   
2. The above offences allegedly occurred between 1 April 1998 to 14 March 2016, a period of approximately 18 years. During the police investigation, the accused was caution interviewed by police four times. First, he was caution interviewed by police on 20, 21 and 22 March 2016 at the Crime Office in Navua Police Station. This interview notes were tendered as Prosecution Exhibit No. 1. Second, he was again caution interviewed by police on 23 and 24 March 2016 at the same venue. This interview notes was tendered as Prosecution Exhibit No. 2. Third, he was again caution interviewed by police on 25 March 2016 at the same venue. The interview notes were tendered as Prosecution Exhibit No. 3. Fourthly, the accused was interviewed by police on 26, 27, 28 and 29 March 2016 at the same venue. The interview notes were tendered as Prosecution Exhibit No. 4(A) – I Taukei version, and 4(B), the English version. In the above interview notes, the accused made partial and/or full confessions to some of the alleged offences against him.
   
3. In the fourth caution interview, the accused was taken for a re-construction of the alleged incident at the crime scene on 29 March 2016. The re-construction was video taped by police and a disc of the same was tendered as Prosecution Exhibit No. 6. The police produced a written transcript of what was uttered by the police and the accused at the re-construction. The original “i-taukei” version of the transcript was tendered by police as Prosecution Exhibit No. 5(A). Its English translation was tendered by police as Prosecution Exhibit No. 5(B). In the above reconstruction, the accused allegedly confessed to the crimes against Mere Ailevu.
   
4. After the fourth caution interview on 29 March 2016, the accused was formally charged by police at Navua Police Station. He was charged for abducting, raping and murdering Mere Ailevu. The charge statement was tendered by police as Prosecution Exhibit No. 7(A) – the i-Taukei version, and 7(B), its English translation. In question and answer 13 of the charge statement, the accused allegedly confessed to the crimes he committed against Mere Ailevu. He asked for forgiveness from her family.
   
5. In a voir dire hearing on 1, 2, 3, 4, 5, 9, 10 and 11 May 2017 (8 days), the accused formally challenged the admissibility of the confessions he allegedly made while being caution interviewed and formally charged by police from 20 to 29 March 2016. His grounds were that the police repeatedly assaulted, threatened and forced him to confess to the alleged crimes, while he was in their custody. He said, he did not give his alleged confessions voluntarily and the same were given without his own free will. He asked the court to rule his alleged confessions as inadmissible evidence.
   
6. The prosecution called a total of 14 witnesses – 12 police officers and 2 civilians. The defence called two witnesses – the accused and Lopate Komaivunivesi. Altogether, there were 16 witnesses, on whose evidence, the court will have to make a decision.
   
7. The law in this area is well settled. On 13th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v Reginam, Criminal Appeal No. 46 of 1983, said the following, “....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 (1941) 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 ....”
   
8. Looking at the prosecution’s witnesses’ evidence as a whole, the message they conveyed appeared to be similar. They said, on 14 March 2016, Mere Ailevu’s (deceased) body was discovered at Loloma Beach, Pacific Harbour. It appeared she was allegedly raped and murdered. According to the prosecution’s witnesses, a major police investigation started. The top police officer in the Division was called in. He was Senior Superintendent of Police Mr. Semesi Bokadi, now the Director of CID (PW14). PW14 was the Divisional Crime Officer Southern at the time. He oversees all major crimes in the Southern and Eastern Division. PW14 called on D/Inspector Elia Waqanidrola (PW1), the Crime Officer at Navua Police Station to oversee the investigation, on his behalf.
   
9. The Pacific Harbour Community Police Post was assigned the Operation Centre of the investigation, in conjunction with Navua Police Station. On 20 March 2016, as a result of information gathered, the police went and arrested the accused from his home. From 20 to 29 March 2016, the accused was interviewed four times at Navua Police Station. The interview covered four female complainants. He was taken for a scene re-construction on 29 March 2016, and the same was video taped by police. He was formally charged on 29 March 2016 at Navua Police Station. On 22 March 2016, the accused was taken to Suva Magistrate Court on the rape complaint by Sainimili Naukoso.
   
10. According to the police witnesses, from the time of his arrest on 20 March 2016 to his production in court on 22 March and 30 March 2016, they never assaulted, threatened or forced the accused to make his alleged confessions in his police caution interview and charge statements. They said, he was given his constitutional rights, was given his right to counsel, was formally cautioned, was given the standard rest and meal breaks. They said, they were given approval by the Magistrate Court to hold him in their custody for further investigation. They said, the accused was well treated while in their custody. He was seen by two doctors, that is, Doctor Salote Behr or CWM Hospital on 22 March 2016, and Doctor Anaseini Maisema Tabua of Navua Hospital on 30 March 2016. They said, he gave his alleged confessions in his caution interview and charge statements voluntarily and out of his own free will.
    
11. The accused’s version of what occurred was exactly opposite to what the prosecution said. He said, he was spoken to harshly and dragged out of his house, when arrested on 20 March 2016. He said, he was handcuffed and taken to the police vehicle. He said, a police officer made him do short repeated sprints to and from the police car. He said, they took him to Pacific Harbour Police Post. He said PW14 threatened him to admit the rape and murder allegations against him. He said, they later took him to Dakunikoro. There, he said, the police repeatedly kicked and punched him. Then they inserted two fingers into his anus with chillies rubbed on the edges of his anus. He said, he was blind folded while being repeatedly assaulted. He said, the punches and kicks to his body were hard. He said, the police repeatedly threatened him to admit the offences.
    
12. The accused said, because of what was done to him above, he told the police what they wanted to hear, that is, he confessed to the alleged offences. He said, he was afraid of further assaults, and that was why he admitted the offences to police. He said, he signed the interview notes because he was afraid of further police assaults. He said, he did not give his alleged confessions voluntarily and the same were given without his own free will.
    
13. I have carefully listened to the witnesses of the parties during the voir dire hearing. I have carefully considered their evidence and compared them. I have looked particular to the two doctors’ medical reports, which were accepted into evidence, for confirmation or otherwise of the parties’ position on the issue of assaults. Doctor Salote Behr examined the accused at CWM Hospital on 22 March 2016 at 4.45pm and finished at 5.45pm.
    
14. In D(10) of her report, Doctor Behr noted “minor laceration on left side of the tongue”. In court, the accused drew the length of the laceration of his tongue as 1 ¼ inches. In my view, a 1 ¼ inches cut to the tongue is not minor, thus the accused’s version differs from the doctor’s. Secondly, the doctor noted “mild swelling and tenderness over left jaw and limited range of movement”. In court, the accused said, on 20 March 2016, the police threw 10 hard punches on his body. He said, some of the punches landed on his jaw. In my view, I would expect not mild swelling, but serious swelling on his jaw and a possible broken jaw if he was punched hard on the jaw. The police officers who gave evidence in court were big men, and their punches on the accused would not leave a “mild swelling and tenderness”. The other injuries noted by the doctor were “tenderness behind left ear and right costal region”. In court, the accused said he was given 10 hard punches to the body and kicked hard on the hips and back. However, the doctor mentioned no injuries on these parts of the accused’s body.
    
15. Also, Doctor Behr saw no larceration or bruises on the accused’s anus. Accused said they roughly rubbed the chillies on the edge of his anus. One would expect some injuries to that part of his body, but none were found.
    
16. As for Doctor Anaseini Tabua, she medically examined the accused on 30 March 2016 at 11.10am at Navua Hospital. In D(12) of her medical report, she noted in injuries number (i) to (iv) tenderness in left chest, right chest, left side of face and left side of hip. The accused in court said he was given 10 hard punches and kicks to his body. In my view, seeing the police officers who appeared in court, if the accused was telling the truth, I would expect the accused to be seriously injured if he was in fact punched and kicked repeatedly by police.
    
17. Looking at all the evidences in their totality, I accept the prosecution’s version of events and reject the accused’s version. I find that the accused gave his caution interview and charge statements voluntarily and out of his own free will. I also find that he gave his scene reconstruction statements voluntarily and out of his own free will. All the accused’s caution interview, charge statements, and scene reconstruction statement are declared as admissible evidence, and they may be used in the trial proper as evidence. However, its acceptance or otherwise, will be a matter for the assessors.
    
18. Despite reaching the above decision and the fact that my mind is not closed, and subject to the parties presenting their evidence in the trial proper, the accused is still presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.