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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 190 OF 2021
STATE
V
NOELI JACK TAMANIKAISAWA
Counsel: Ms B Kantharia & Mr T Naimila for the State
Mr T Varinava for the Accused
Hearing: 1, 2, 3 & 8 July 2024
Submissions: 10 July 2024
Judgment: 30 July 2024
JUDGMENT ON VOIR DIRE
[1] The Accused, Mr Noeli Jack Tamanikaisawa, challenges the admissibility of admissions that he allegedly made during the police investigation in 2021. He also challenges the admissibility of DNA results.
[2] On 15 July 2024, I informed the parties of my decision on the voir dire and advised that a written decision with reasons will follow.[1] The reasons for my decision are set out below.
Accused’s grounds for challenging admission of evidence
[3] Mr Tamanikaisawa has been charged with one count of murder and one count of robbery in respect to the death of Mr Satya Nand Pillay on 26 September 2021. He has pleaded not guilty to the charges.
[4] Mr Tamanikaisawa provides separate grounds for the two categories of evidence that he objects to. With respect to the alleged admissions, his grounds read:
[5] Mr Tamanikaisawa’s grounds for objecting to the admission of the DNA evidence are as follows:
Prosecution Evidence
[6] The voir dire was conducted in two separate stages. The first stage being the evidence on Mr Tamanikaisawa’s alleged admissions during his interview and charging. The evidence on the collection of the DNA sample was led in the second stage.
Evidence on alleged admissions by Mr Tamanikaisawa
[7] The Prosecution called the following eight witnesses:
[8] Detective 4510 Esava was the arresting officer. He has 16 years of service in the Police Force. He was stationed at Nausori Police Station on 30 September 2021 and was instructed to arrest the Accused. He travelled to Cunningham at 8.30am with two colleagues to locate and arrest the Accused. He had by this time undertaken about 40 arrests in his career and was familiar with the procedure.
[9] The three officers arrived at a house in Cunningham. One officer went to the front door whilst Detective Esava went to the back door. The third officer went to the side of the house. Detective Esava heard his colleague shout the Accused's name. He then heard footsteps in the house and the Accused opened the back door. Detective Esava grabbed the Accused around the waist to prevent him from running away. He then effected an arrest of the Accused, informing him of the reason for the arrest (being the alleged murder that had occurred in Qiolevu Road). Detective Esava cautioned the Accused, informing him of his right to remain silent and the consequences of not doing so.
[10] The officers then placed the Accused in a police vehicle where they all sat and waited until the police teams arrived to search the house. This occurred about 15 to 20 minutes later. They remained at the house during the search and thereafter travelled to the Nausori Police Station where the Accused was interviewed. Detective Esava stated that there was no force, threats, assaults or false promises made by himself or any other officer to the Accused.
[11] In cross examination a number of allegations were put to Detective Esava. These were that he had broken the door while entering the Accused’s house, had assaulted the Accused to his ribs and body during the arrest, did not inform him of the reasons for the arrest and did not inform him of his rights. Also, it was alleged that the police took the Accused to a house at Vunivivi and further assaulted the Accused, threatening the Accused that if he did not admit the offences that he would be further assaulted. Detective Esava denied the allegations. He stated that they travelled straight to the Nausori Police Station from the Accused’s home in Cunningham.
[12] Corporal Tom Matebula, being the next prosecution witness, interviewed the Accused. He has been in the police force for 11 years. He conducted the interview of the Accused on 30 September and 1 October 2021. Before the interview, the accused was medically examined at the local medical centre. The Accused also had an opportunity to speak with a lawyer from the Legal Aid Commission before the interview. Corporal Matebula stated that the interview was undertaken in the Crime Office at the Nausori Police Station. The witnessing officer was Detective Sergeant Mesulame. The interview was conducted in English (the Accused’s preferred language) and recorded in handwriting. The written record was signed by himself, the Accused and the witnessing officer. The original written record of the interview was produced by Corporal Matebula as was a typed version. At the commencement of the interview, the Accused was informed of the reasons for the interview and his constitutional rights. The interview commenced on 30 September 2021 at 1.51pm and ended at 5.10pm. There were 5-minute breaks at 2.45pm and 3.50pm for the Accused to drink water and use the washroom. The Accused was reminded after each break of his constitutional rights.
[13] The interview was reconvened the next day, 1 October 2021, at 9.34am after the Accused had eaten breakfast. There was a short break at 10.45am and at 12noon. The Accused was cautioned at the commencement of each interview session of his rights. Up to that time, 12 noon on 1 October 2021, the Accused had admitted being involved in the robbery of Mr Pillay. He stated that he was acting in concert with ‘Manasa’ but that Manasa had strangled the taxi driver (Mr Pillay). It was after the break at noon on 1 October 2021, that the Accused admitted that he had, in fact, strangled the taxi driver and disposed of his body. The interview was suspended at 12.20pm to conduct a reconstruction of the crime scene.[2]
[14] The reconstruction was recorded by CSI officer, DC Krishneel Kumar. Five video clips were played for the Court to view. The reconstruction commenced outside RB Patel Supermarket on the roadside at Nausori town. Corporal Matebula again cautioned the Accused. The Accused was cooperative, as he was during the interview. His co-operation is evidenced in the five video clips. The Accused is seen explaining where and what he did during the alleged offending. Corporal Matebula stated that at no time was the Accused threatened or assaulted or made to provide any of his answers during the interview or reconstruction.
[15] In cross-examination, Corporal Matebula accepted that the Accused made no admissions regarding the murder on the first day or on the morning of the second day. That only following a short break at 12 noon on the second day did the Accused make any admissions about the murder. It was put to Corporal Matebula that the Accused was assaulted during the interview and the breaks and was told to admit the offences. He denied this.
[16] It was put to Corporal Matebula that the large number of police officers present during the reconstruction was intimidating and threatening to the Accused and that the admissions given during the reconstruction were a result of threats, duress and assaults on the Accused. Further, that the video clips had been edited by the police. These allegations were denied.
[17] It was put to Corporal Matebula that given the Accused was a juvenile at the time of the alleged offending and had only just turned 18 years shortly before the interview, the police ought to have treated the Accused as a juvenile and ensured his parents were present during the interview. Corporal Matebula stated that the Accused was an adult and, therefore, treated as one during the interview. He pointed out that the Accused was offered an opportunity to have his parents present but he declined.
[18] Corporal Matebula was referred to the Fiji Police Force Standing Orders. Corporal Matebula accepted that these were required to be complied with to ensure fairness with the interview process. He agreed that one of the Standing Orders was that an interviewing officer ought not to be involved in the same investigation of the suspect. He accepted that he had been involved in the investigation by virtue of recording written statements for two witnesses. A further Standing Order is that where there are admissions by an Accused, the Accused person should then be produced to the most superior officer in the station and offered an opportunity to make a complaint. Again, Corporal Matebula agreed but stated that this occurred after the interview.
[19] In re-examination, Corporal Matebula explained that Standing Orders were best practice but depended on ‘manpower that is on the ground’.
[20] Detective Sergeant 4509 Mesulame was the witnessing officer during the interview of the Accused. He has 17 years with the police force. He stated that the role of a witnessing officer is to ensure that the interview is conducted properly and fairly. He stated that there was no assault, threat or inducement of the Accused during the interview and that he did not slap the Accused's ears. He stated that he was related to the Accused and had contacted his parents. He is related to the Accused’s father in a cousin-brother Itaukei relationship. He is from the same province but a different village to the Accused's father.
[21] In cross-examination, Sergeant Mesulame also accepted that he too had been involved in preparing witness statements contrary to internal Standing Orders. He denied allegations of assault and threats against the Accused. He stated that after the Accused’s admissions the Accused was taken to the superior officer at the Police Station, being Inspector Ilaitia (who was also the Investigating Officer in the case).
[22] DC 5057 Apisai Voravora prepared the charge statement on 1 October 2021 after the interview of the Accused. DC Apisai cautioned the Accused and informed him of his constitutional rights before charging the Accused. This is recorded in the charge statement which was typed by DC Apisai in real time, printed and then signed by the charging officer, the Accused and the witnessing officer. The Accused allegedly made an admission in the charge statement. He stated, ‘[t]he statement which I gave to police in my interview is true and I am sorry for what I have done and I would like to apologise to the family of Mr Satya Nand Pillay’. DC Apisai stated that the Accused was not forced or threatened to make the statement. Further, the Accused did not complain about being assaulted or threatened during his earlier interview.
[23] In cross-examination, it was put to DC Apisai that he had prepared the charge statement before he even charged the Accused – the date on the charge statement is incorrect, being 11 June 2018. DC Apisai denied this. He did, however, accept that he had earlier prepared several witness statements in the same investigation. As to whether a charging officer could also be involved in the investigation (re police Standing Orders) DC Apisai replied ‘sometimes’. He explained in re-examination that where there was a shortage of manpower ‘we will just use the men that is on the ground’.
[24] Detective Inspector Ilaitia Ratu Ramaya, the Investigating Officer, gave evidence that the Accused made an admission to him on 30 September 2021. He stated that whilst the Accused was taking a break during the interview, the Accused started crying and then confessed to murdering Mr Pillay. Inspector Ramaya stated that he cautioned the Accused as soon as he started confessing. The Accused then went back into the interview. Inspector Ramaya then informed his superior, Assistant Superintendent Savou as he was required to do.
[25] In cross-examination, Inspector Ramaya accepted that his written statement as to the time of the alleged confession, as being at 12 noon on 30 September 2021, was wrong as the interview did not begin that day until 1.51pm. He stated it was a typing error. He denied that he had threatened or assaulted the Accused. He did not accept that it was unfair to ask questions of the Accused during a break from the interview. Inspector Ramaya was questioned why Sergeant Mesulame, being a relative of the Accused, was involved in the interview. He stated that the officer was chosen because he was very experienced.
[26] In response to questions from me, Inspector Ramaya stated that he was not aware that Sergeant Mesulame was related to the Accused when he was instructed to be involved in the interview. He stated that if he had known he would have stopped him being the witnessing officer as it would not be fair. He later stated in re-examination that the decision was his superior officer’s namely ASP Savou.
[27] Dr Olimiva Tuamono is a medical officer at the Nausori Medical Centre. She examined the Accused on 30 September 2021 shortly before the police interview commenced. She produced the medical report that she completed during the examination on 30 September. She stated that the only injury seen on her visual examination was a semi-healed abrasion on the Accused’s left knee which she opined was more than 24 hours old as indicated by the scab formation. The Accused did not inform her of any injuries or report any assault during the examination. She stated that if the Accused had informed her of any assault, distress or the like she would have recorded this in her report. The examination was conducted in a separate room where the police officers were not present.
[28] Ms Janice Manueli is a Senior Legal Officer with the Attorney General’s Chambers. In September 2021, she was employed as a Legal Officer with the Legal Aid Commission. She spoke with the Accused on 30 September 2021 before the police interview began. She did not recall the conversation (due to the time that has seen passed) and, therefore, was unable to state what legal advice she provided to the Accused. She stated that because of then covid restrictions she would not have been permitted to be at the interview if the Accused had requested this. She stated that, as was her then practice, she would have informed the Accused of his constitutional rights, enquired whether he was fit to be interviewed, enquired whether he was being well treated or abused/threatened, checked that he was comfortable in jail, and whether he required a family member to be present. She also stated that while the Accused had only just then turned 18 years and was a juvenile when the alleged offence occurred, she would have provided legal advice to him as an adult.
[29] The final witness was Dr Sravaniya Dasi. She is the Divisional Medical Officer, Eastern. She produced a medical report for an examination by one of her colleagues, Dr Ruby, on 3 October 2021. Dr Ruby is now overseas. The examination was conducted after the police interview. It was recorded in the written report by Dr Ruby that there were no injuries seen on examination and no history of assault.
Evidence on collection of DNA sample
[30] The Prosecution called four witnesses in respect to the DNA evidence, namely:
[31] Corporal Matebula stated that after the reconstruction of the crime scene on 1 October 2021, the interview resumed at 3.30pm. The Accused was reminded of his rights. The officer then sought the Accused’s consent to collect a buccal swab from him for DNA purposes. The Accused was advised that the evidence may be used against him in court. The Accused gave his consent and the interview was then suspended at 4.37pm to organize the collection of the buccal swab by the police CSI team. He stated that DC4786 Iliesa came to the interviewing room and collected the buccal swab from the Accused. Corporal Matebula stated that those present at the time of the collection were the Accused, Sergeant Mesulame, DC Iliesa and himself.
[32] In cross-examination, it was put to Corporal Matebula that the Accused only consented to the collection of the swab because he was promised that he will then be released on bail. Corporal Matebula denied this. It was also put to Corporal Matebula that the Accused was not informed of the consequences of giving his consent. Again, he denied this. Corporal Matebula did accept that the DNA extraction should have been recorded in the Station Diary. It was put to Corporal Matebula that there was no record in the Station Diary of the fact of the collection of the swab or of DC4786 Iliesa entering the Station at the material time on 1 October 2021. Corporal Matebula put this down to a shortfall by the Station gatekeeper.
[33] Sergeant Mesulame was the witnessing officer during the reconstruction and taking of the buccal swab. He concurred with the evidence provided by Corporal Matebula. In cross-examination he denied that his relationship with the Accused exerted undue influence over the Accused.
[34] DC 4786 Iliesa collected the buccal swab from the Accused. He has been with the CSI unit for 12 years and has had training with buccal swab taking. He and the Accused completed a consent form for the collection of the buccal swab. The form was signed and dated 1 October 2021. DC Iliesa explained the nature of the collection, its purpose and the fact that it could be used in evidence against the Accused. He did so in the Itaukei language. Physically, the collection involved the use of a lollipop instrument that was placed in the mouth of the Accused in order to collect saliva and then placed in a sealed plastic envelope. In cross-examination, he explained that because of the time of the collection, the envelope with the Accused’s buccal swab was not taken for testing to the laboratory until the next day as the laboratory was closed when the swab was collected. DC Iliesa stated that the sealed envelope was stored in the CSI Office overnight.
[35] The final witness was Sergeant 4309 Sakiasi Koroi. He has 17 years with the Crime Scene Investigation Unit and was the team leader for the CSI team during this investigation in 2021. He briefed the team and delegated tasks to the members of the team, including delegating the task of photographer to DC Krishneel Kumar. It was DC Kumar who video recorded the reconstruction of the crime scene. He stated that DC Kumar has since migrated overseas. Sergeant. Koroi stated that he was present during the reconstruction and guided DC Kumar – Sergeant Koroi can be seen in the first video clip. He stated that he was behind the camera during the subsequent video clips. The instrument used to record the reconstruction was a Canon digital camera. He stated that the video clips were later downloaded by DC Kumar and he was able to recognize DC Kumar’s handwriting on the CD of the video recording. He sought to produce the CD in evidence. The Defence objected to this on the basis that Sergeant Koroi was not the maker of the CD. I informed counsel that I would make a decision on this matter in my written ruling.
[36] Sergeant Koroi then spoke about the process of collecting a buccal swab. He explained that the buccal swab was placed in a small plastic envelope and then into a larger envelope. He stated that there was no set time within which a swab was required to be taken to the laboratory for testing. Sergeant Koroi stated that he was present when DC Iliesa collected the swab from the Accused.
Defence’s Evidence
[37] At the conclusion of the prosecution evidence, the Accused was informed of his options. He chose not to provide evidence himself or to call any witnesses.
Decision
[38] The following issues arise for determination at this juncture of the proceeding:
[39] A juvenile or young person is defined under the Juveniles Act 1973 as somebody under 18 years. There is no dispute that the Accused was 17 years at the time of the alleged offending on 26 September 2021. He turned 18 years on 27 September 2021. Similarly, there is no dispute that at the time he was arrested, detained and interviewed on 30 September 2021 the Accused had turned 18 years.
[40] The Accused will be treated as a juvenile, for sentencing purposes, if he is found guilty.[3]
[41] The question raised is whether the Accused should have been treated as a juvenile when arrested, detained and interviewed by the police and whether he should be treated as a juvenile in these proceedings. There are special protections afforded juveniles; for example, a juvenile cannot be interviewed by the police without their parents present and proceedings involving juveniles must be conducted in closed court.
[42] Counsel have not identified a provision in the Juveniles Act or any authority that specifically deals with the present issue. The cases that have been brought to my attention indicate that where an accused is a juvenile at the time of the alleged offending, but are adults by the time of a conviction, the accused will be sentenced as a juvenile.
[43] The Juveniles Act protects vulnerable children and young persons. Parliament has drawn a line of 18 years as to when a person is no longer of a vulnerable age. Once they turn 18 years, they are no longer afforded such protection. As per the law, the Accused was not a juvenile when he was arrested and detained by the police. He was by then an adult. The same being the case when these proceedings were commenced.
[44] As such, I am satisfied that the Accused was correctly treated by the police as an adult and is an adult for the purposes of the conduct of these proceedings (with the exception of the sentence if found guilty). I am reassured of this position by the commentary in Blackstone's Criminal Practice 2016, cited by the Prosecution. The commentary reads at D24.70 and D24.73:
Relevant Date In Islington North Juvenile Court, ex parte Daley [1983] 1AC347, the House of Lords had to consider at what stage of the proceedings an accused charged with an either-way offence must attain the relevant age (then 17, now 18) in order to entitle him to elect to be tried by a jury. Lord Diplock, with whom the other Law Lords agreed, held (at p.364) that ‘the only appropriate date at which to determine whether an accused person has attained an age which entitles him to elect to be tried by a jury for offences which ... are triable either way, is the date of his appearance before the court on the occasion when the court makes its decision as to the mode of trial’. In that case, the accused was 16 when he made his first appearance in the juvenile court (when the case was simply adjourned). By the time he next appeared, he had attained the age of 17, and so had ceased to be a juvenile according to the law at the time. The effect of the decision of the House of Lords was that he was entitled to elect trial by jury, because he became an adult before mode of trial was determined...
...
Where an accused against whom proceedings have properly been commenced in the youth court attains the age of 18 and is then charged with an additional matter, the latter charge may not be heard in the youth court ..... That applies regardless of whether the youth court is able to attain jurisdiction over the original charge ...
[45] The prosecution seeks to admit the CD which contains five clips of video recordings of the reconstruction of the crime scene conducted on 1 October 2021. The recording was made by D.C. Kumar, who has now migrated overseas. His superior officer at the time, Sergeant Koroi, sought to produce the CD in evidence. Sergeant Koroi gave evidence that he tasked D.C. Kumar with being the video recorder, was present on the day of the recording, and guided D.C. Kumar with respect to his recording. Sergeant Koroi explained the process by which the video recordings are downloaded and stored on a CD. He confirmed that the writing on the CD produced was D.C. Kumar’s.
[46] The Prosecution sought to admit the CD under s 133 of the Criminal Procedure Act 2009. The defence objected on the basis that Sergeant Koroi was not the maker of the CD or recording.
[47] I am satisfied that Sergeant Koroi is permitted to produce the CD in evidence. He is able to confirm that the recording is accurate, having been present during the recording of the reconstruction. As Shameem J stated, in a State v Seniloli [2004] FJHC 37 (5 July 2004), at page 6:
The video recordings shown, provided they are tendered either by their makers, or by a person who can give evidence as to accuracy, are admissible as real evidence. The transcripts are admissible provided they are attended by their makers...
[48] The rights of persons arrested or detained are set out at s 13 of the 2013 Constitution. The relevant parts of the provision read:
(1) Every person who is arrested or detained has the right—
(a) to be informed promptly, in a language that he or she understands, of—
(i) the reason for the arrest or detention and the nature of any charge that may be brought against that person;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent;
(b) to remain silent;
(c) to communicate with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission;
(d) not to be compelled to make any confession or admission that could be used in evidence against that person;
[49] A recent summary of the relevant principles was set out by Ratuvili J in State v Nasau [2024] FJHC 186 (22 March 2024) as follows:
“The Law
[6] In Ganga Ram and Shiu Charan v. Reginam; Criminal Appeal No. 46 of 1983 (13 July 1984) (unreported) the Fiji Court of Appeal outlined the two grounds to be considered for admissibility of confessions;
“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 or 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 [1914] AC 599; DPP v. Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also a 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 will, by trickery or by unfair treatment>Regina v. Sang [1979] UKHL 3; (1980) AC 402. This is a matter of over overriding discretion and one cannot specifically categorize the matters which might be taken into account."
[7] His Lordship, Justice Daniel Goundar in the case of the State vs. Maikeli Rawaqa and Segran Murti Criminal Case No. HAC 42 of 2004 (16 February 2008); held as follows:
“The principal governing the admissibility of confessions are well settled. Confessions could not properly be given in evidence unless it was shown that they were made voluntarily, that is, not obtained through violence, fear of prejudice, oppression, threats and promises or other improper inducements (Ibrahim v R [1914] AC 599). Even if such voluntariness is established, the trial Judge has the discretion to exclude the confessions on a general ground of unfairness (R v Sang [1979] UKHL 3; [1980] AC 402). In addition, confessions could be excluded for breaches of Constitutional rights.”
[8] Accordingly, in order for a confession made by an Accused person to a police officer to be admissible as evidence against the maker of that confession, the confession should have been made by that Accused voluntarily, meaning it should have been made by the Accused on his own free will, with full appreciation of the legal consequences. If the said confession is made as a result of oppression, such confession would not be admissible and should be excluded. Oppression is anything that undermines or weakens the exercise of free will. However, even if such voluntariness is established, the trial Judge has the discretion of ruling such confession inadmissible, if it is obtained in an unfair manner (on general grounds of unfairness).
[9] The onus of proving voluntariness/lack of oppression and fairness is on the prosecution and they must prove these matters beyond reasonable doubt. If there has been a breach of any of the Accused’s Constitutional rights, the prosecution must prove that the Accused was not thereby prejudiced.”
“In assessing weight and value of a confession, assessors should take into consideration all circumstances in which it was made, including allegations of force, if true. Trial judge is bound to place a defence challenging the caution interview on the basis that D simply agreed to what the police wanted him to admit due to persistent physical assault already inflicted upon him and a fear of similar assault in the future by police, to evaluate probative value and weight to be attached to the caution interview...
[50] The Prosecution bears the burden of demonstrating beyond reasonable doubt that the alleged admissions by Mr Tamanikaisawa were obtained voluntarily and that there was no unfairness used by the police.
[51] Mr. Tamanikaisawa allegedly made admissions in the interview, charge statement and reconstruction. He is also alleged to have made admissions to the investigating officer during a break from the interview on 30 September 2021. Mr Tamanikaisawa objects to the admission of this evidence. Multiple grounds are advanced, namely:
[52] I accept the prosecution evidence that there was no assault, threats or inducement, and that Mr. Tamanikaisawa was properly, and timely, informed of his constitutional rights. Evidence to this effect was provided by each of the police witnesses. This evidence is supported by the content of the written interview record and the charge statement. Mr. Tamanikaisawa is recorded in these documents as having accepted that he had been informed of his constitutional rights and chose not to exercise them. He is also recorded as having stated that there was no promise, inducement or threats to obtain his answers.[4] Mr Tamanikaisawa signed an acknowledgement of the same on the documents.
[53] In addition, Mr. Tamanikaisawa was medically assessed immediately before the interview on 30 September 2021 and two days after the interview (and charge). There was no indication from the Accused to the medical officers of any complaint of assault and no physical evidence of any injuries. Mr. Tamanikaisawa was also provided with an opportunity to speak to a lawyer after he had been arrested and before he was interviewed. The lawyer will have enquired about Mr Tamanikaisawa’s treatment by the police and will have informed him of his constitutional right to remain silent.
[54] Certainly, Mr. Tamanikaisawa was on the cusp of still being a juvenile, with the additional protections afforded to such a person, when he was arrested and interviewed on 30 September 2021. However, he was not, as a matter of fact (or law), a juvenile. He was then an adult. He was afforded his rights as an adult. Whilst his parents were not present during the interview, his mother was aware that he was detained by the police as evidenced by the Station Diary which records that she dropped off clothes for the Accused at 9.29am on 1 October 2021.
[55] The police officers involved in the interview and charging of Mr Tamanikaisawa each accepted in cross-examination that standing orders require that police officers involved in the investigation are not also involved in the interview or charging of an accused. The officers here accepted that they were involved in recording witness statements for the investigation into the death of Mr Pillay. They explained that there was a shortage of resources because of the COVID-19 virus gripping Fiji at the time. There were curfews in place over this period.
[56] The Defence relied on the decision of Temo v the State [2022] FJCA 63 (26 May 2022). In that case, the Court of Appeal considered a decision by the Magistrate admitting admissions into evidence. There were, in that case, a number of problems with the prosecution evidence, one of which was the breach of the police Standing Orders. The Court of Appeal stated:
[24] It is also important to note that police officer Jone who had recorded the confession of the second appellant has been part of the investigation team. Learned counsel for the appellants submitted that according to the Fiji Police Standing Orders an officer involved in the investigation of a crime is not expected to record a cautioned interview of a suspect. It is necessary to understand the rationale behind that. An officer who has been involved in the investigations becomes aware of what persons who had witnessed the incident have said. As such there is a likelihood that such information may be included in the confession of a suspect if an investigating officer were to record the confession.
[25] The Standing Orders will have the same effect as ‘judges’ rules’ and it is well recognized that they do not have the force of law and hence their noncompliance by itself would not render a particular act or conduct illegal or incapable of being acted upon. Nevertheless, it is important to bear in mind that their compliance is most desirable since they play a crucial role in determining fairness and breaches of them are generally not condoned. The second appellant has also stated that both he and the first appellant were in the same room when the confessions were recorded. This too is not an acceptable practice and smacks of procedural unfairness.
[57] Whether or not a breach of a standing order amounts to unfairness will turn on the facts of each case. I am satisfied in the present case that the breach here did not cause unfairness to the Accused so as to render the alleged admissions inadmissible. There was a reasonable explanation for the police officers being involved in both the investigation and the interview/charge of the Accused. Fiji was in the grip of the COVID-19 pandemic in September 2021, which placed some considerable constraints on the police’s resources. Further, in my view the fact that the police officers involved in the interview and charging of the Accused also recorded several witness statements did not of itself cause the interview or charging of the Accused to be unfair.
[58] Sergeant Mesulame was the witnessing officer during the interview and reconstruction. He is related to the Accused through the Accused’s father. Sergeant Mesulame is the accused’s father’s cousin-brother in the Itaukei sense. They are not from the same village. They are from the same province. That does not appear to be a close familial connection. The Accused contends that Sergeant Mesulame’s presence at the interview and reconstruction was unfair. However, the Accused did not record this as one of his Grounds for Voir Dire and did not suggest therein that Sergeant Mesulame’s presence and his familial connection to the Accused was a factor that influenced the Accused when he made his alleged admissions on 30 September and 1 October 2021.
[59] Accordingly, I am satisfied beyond reasonable doubt that the interview conducted on 30 September and 1 October 2021 was conducted fairly and in line with the requirements under the Constitution. Similarly, I am satisfied beyond reasonable doubt that the statements provided by Mr Tamanikaisawa during the interview and charge were voluntarily made by him and without the existence of circumstances likely to render it unreliable. As such, the statements of Mr Tamanikaisawa during the interview, charging and reconstruction are admissible in evidence.
[60] However, I am unable to arrive at the same conclusion with respect to Mr Tamanikaisawa’s alleged admission to the Investigating Officer on 30 September 2021. The alleged admission was made during a short break while the formal interview was in train. At that time, Mr Tamanikaisawa had acknowledged his role in the robbery of Mr Pillay but had not accepted any responsibility for his murder. It was neither appropriate nor fair for the Investigating Officer to question Mr Tamanikaisawa during a break in the formal interview. I am not satisfied that the Prosecution has demonstrated beyond reasonable doubt that this admission was elicited fairly.
Admission of DNA evidence
[61] Rajasinghe J set out the requirements for admitting DNA evidence in State v Isoof [2021] FJHC 407 (29 December 2021). His Lordship stated:
[62] The Prosecution wish to rely on DNA evidence obtained by way of a buccal swab uplifted from Mr. Tamanikaisawa late in the afternoon on 1 October 2021. The CSI team were instructed to collect this evidence. The interview was suspended at 4.37 p.m. on 1 October for this purpose. According to the interview record, the interview was recommenced on 5.19 p.m. after the buccal swab had been taken. The interview then concluded at 6.00 p.m. and Mr Tamanikaisawa was charged at 6.10 p.m.
[63] The buccal swab was collected by Constable Iliesa Kaivai. He travelled 200 meters from the CSI building at Nausori to the Police Station. He arranged for a consent form to be completed.[5] He explained the circumstances of the DNA testing to the Accused; the purpose of the collection, the Accused’s right to refuse permission, and that the evidence made be used against him in a criminal prosecution. Mr Tamanikaisawa signed the consent form on 1 October 2021 consenting to the collection of the swab and acknowledging that he understood what he was consenting to.
[64] A particular kit is used to collect the buccal swab. The process involves the use of a lollipop stick which is wiped inside a suspect’s mouth, then placed in a sealed envelope and then immediately taken to a laboratory to be tested. Due to the late collection of the Accused’s swab, the laboratory was then closed and, therefore, the envelope containing the swab was stored in the CSI office overnight and transported to the laboratory the next day.
[65] There are troubling contradictions by the prosecution witnesses with respect to the collection of the buccal swab. The first contradiction pertains to who was present when the swab was collected. According to the interviewing officer, the witnessing officer and Constable Iliesa, the only persons present when the buccal swab was collected were these officers and the Accused. However, Sergeant Koroi states that he too was present. Sergeant Koroi stated that he travelled with Constable Iliesa from the CSI office to the Nausori Police Station after they received a call from Sergeant Mesulame requesting that they arrange for the collection of the swab. Both he and Constable Iliesa did agree, however, on the time they received the call from Sergeant Mesulame, which brings me to the second, and perhaps more concerning contradiction. In examination in chief Constable Iliesa stated that they received the call from Sergeant Mesulame about 6pm. Sergeant Koroi stated that they arrived at the Crime Unit office at Nausori Police Station ‘about 18.06’. The interview notes, however, record that the interview was suspended at 4.37pm and resumed following the buccal swab at 5.19pm. There is no evidence in the Station Diary (as is required when any person enters or leaves the Police Station) that Constable Iliesa or Sergeant Koroi entered the police station that afternoon/evening.
[66] The added concern that I have, in addition to the above contradictions, is the timing of the police request to the Accused for his consent. The police requested the Accused’s consent at the end of the second day of his interview. Mr Tamanikaisawa’s young age is relevant in this context. He had been interviewed for two consecutive days. The interview on the second day began at 9.30am. It was suspended shortly after midday when he allegedly admitted to the murder of Mr Pillay. However, the Accused was then taken through a reconstruction of the scene and the interview was reconvened on his return to the Police Station later in the afternoon. The Accused will have been mentally and emotionally exhausted after these events. It was neither fair nor reasonable to resume the interview and certainly not fair to then request a buccal swab. I have some difficulty in accepting that in light of the events that day the Accused will have been capable of properly understanding the information presented to him about the DNA testing and his options.
[67] I am, therefore, not satisfied beyond a reasonable doubt that the Accused was able to, or did, provide his informed consent to the collection of the buccal swab. Nor am I am satisfied that the Prosecution has established beyond reasonable doubt that the buccal swab was collected fairly. For these reasons, the DNA evidence is not admissible.
Summary
[68] In summary, my findings are as follows:
.....................................
D. K. L. Tuiqereqere
JUDGE
Solicitors:
Office of Director of Public Prosecutions for the State
Office of Legal Aid Commission for the Accused
[1] This allowed the trial proper to commence on 15 July 2024.
[2] The accused was provided lunch before the reconstruction.
[3] Section 30 of the Juvenile Act. The court does have power, however, under s 31 where the Accused is found guilty, to depart from the restrictions under s 30.
[4] Questions 133 to 136 of Interview and 8-9 of Charge Statement.
[5] The consent form was produced as VDPE 5.
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