Ahmed v State [2024] FJHC 726; HAC 219 of 2019 (2 December 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 219 OF 2019

STATE

V

MOHAMMED AIYAZ AHMED

Counsel: Mr A. Singh for State
Ms A. Chand for Defence

Date of Ruling: 02 December 2024

RULING ON VOIR DIRE

1. The Prosecution seeks to adduce into evidence the record of caution interview, the video recording of the scene reconstruction and the charge statement of the Accused at trial proper. The Defence objects to the admissibility of the following:
   1. The Accused’s handwritten charge statement dated 23^rd November 2019;
   2. The Accused’s typed charge statement dated 23^rd November 2019;
   3. The Accused’s handwritten caution Interview dated 21^st November 2019;
   4. The Accused’s typed caution Interview dated 21^st November 2019;
   5. Disc 1 and Disc 2 of the Crime Scene Reconstruction dated 23^rd November 2019;

(a) That the Prosecution Disclosures listed at (i) to (v) were obtained in circumstances that were unfair to the Accused.

(b) That the Prosecution Disclosures listed at (i) to (v) were obtained in circumstances that were oppressive on the Accused.

(c) That the Accused was systematically softened prior to, and during the Caution Interview in that he was kept in police custody under circumstances which were degrading and inhumane.

(d) That all the Caution Interviews were obtained in breach of Rules 2 and 4 of the Judges’ Rules.

(e) That all the Caution Interviews were obtained in breach of Section 14 (1) (J), (K).

(f) That the first Accused was assaulted by Police Officers due to which he received injuries and to the point where the Accused was unable to bear the pain and subsequently made confessional statements.

(g) The Accused was told that he would be allowed to attend the funeral of his late wife if he quickly admitted to the offence.

(h) On the 25^th of November 2019, the Lautoka Magistrates Court had made an Order that the Accused was to be taken for a medical examination. The Police Officers breached the said Court Order in contempt of Court and in breach of the Accused’s constitutional rights.

(i) The Accused was eventually taken for a Medical examination 14 days after the initial Order, on the 09^th of December 2019, after the learned judge Justice Sunil Sharma issued a written order. By this time the Accused’s injuries would have significantly healed.

(j) The Accused’s Medical Report does not reflect the assaults inflicted on the Accused since the medical examination was carried out 17 days after the assaults occurred.

(k) The questions and the answers in the Accused’s Caution Interview were not contemporaneously recorded, in that the answers in the Caution Interview were pre-recorded, and the Accused was forced to sign afterwards.

(l) That the State provides to the Defence Counsel the names of all Police Officers or their statements who were involved from the time of arrest of the Accused and brought to the Lautoka Police Station, Lautoka Court Cell Block and Lautoka Market Police Post.

2. It would be observed that the Ground (k) above is not strictly a ground for a voir dire hearing. The issue of fabrication raised in the ground (k) is a matter for the trial proper.
   
3. The test for admissibility of confessional statements made to a police officer is whether that was made freely or not due to threats, assaults or inducements made to the suspect by a person or persons in authority. Further, oppression or unfairness also leads to the exclusion of the confession. Finally, where the rights of a suspect under the Constitution have been violated, this will lead to the exclusion of the confessions obtained unless the Prosecution can show that the suspect was not prejudiced thereby.
   
4. What I am required at this stage is to decide whether the interview/charge was conducted fairly, affording the suspect’s constitutional rights and whether the suspect gave the statements voluntarily. If I find that the confession was obtained having violated the Accused’s rights, then I can, in my discretion, exclude the confessional statements.
   
5. The burden of proving voluntariness, fairness, lack of oppression, compliance with constitutional rights, where applicable, and if there is noncompliance, lack of prejudice to the Accused always rests with the Prosecution. The Prosecution must prove these matters beyond a reasonable doubt. In this ruling, I have reminded myself of that.
   
6. Let me first summarise the evidence led at the hearing.
   

PW1 - Detective Inspector Salesh Kumar

7. In 2019, Inspector Salesh Kumar was stationed at the Crime Intelligence Unit at Lautoka Police Station. On 21 November 2019, he received instructions to be the interviewing officer of a murder case from Drasa, Lautoka.
   
8. On 21 November 2019, Constable Amit escorted the suspect Mohammed Aiyaz Ahmed (Ahmed) to the interview room. The interview started at 3.15 p.m. at the Lautoka Police Station in the presence of the witnessing officer Sgt. Karan. All constitutional rights were afforded to the suspect before and during the interview. Adequate breaks and food were provided. Ahmed was interviewed over three days in Hindi, his preferred language.
   
9. Before the interview, Ahmed appeared normal and informed that he was feeling well. He did not see any injuries on Ahmed. Since Ahmed complained of a headache. PC Amit took him to the hospital before the interview. During the interview, Ahmed complained of a headache, and PC Amit took Ahmed again for a medical examination. Ahmed was given medicine for his gastric problems and cholesterol.
   
10. During the interview, no officer assaulted, threatened or put pressure on Ahmed, nor was he given any false promises. Sufficient breaks and meals were provided. The witnessing officer was present throughout the interview. Ahmed was giving the answers willingly. After being seen by his lawyer, Ahmed signed only the 1^st page and refused to sign the rest. The lawyer had informed him not to sign. He did not force Ahmed to sign because it was the suspect’s right. He translated the original Hindi handwritten record PE1(A) into English and prepared a translation PE1(B), both of which were tendered in evidence.
    
11. On 22 November 2019, Ahmed’s lawyer, Ms Chand, had a conversation with Ahmed in the interviewing room between 12.15 and 12.30 p.m. After serving lunch, the interview was suspended at 2.15 p.m., and Ahmed was taken to his workplace. During reconstruction, which lasted for 1 hour and 45 minutes, Ahmed was not threatened, assaulted or put under pressure to admit to the allegation. After the reconstruction, the interview recommenced at 4.05 p.m. At 5.15 p.m., Ms Chand visited Ahmed again. After the lawyer left at 5.55 p.m., Ahmed started complaining of a headache. Then, the interview was suspended at 6.10 p.m., and PC Amit escorted Ahmed to Lautoka Hospital. Ahmed made no complaints to the doctor against the police officers. After the medical examination, Ahmed was brought back and locked in the cell because he was not feeling well.
    
12. On the 23 November 2019, the interview resumed at 8.45 a.m. Ahmed did not complain about anything. Ms Chand did not make any formal complaint to him that his client was assaulted or ill-treated. At 1.55 p.m., the interview was suspended for lunch. At 2.45 p.m.. Ahmed was asked to show the alleged scene of the crime. They left Lautoka Police Station for Drasa for the second reconstruction with Sgt Karan and PC Amit in a vehicle driven by DS Salen. During the reconstruction, no officer assaulted, threatened or put pressure on Ahmed. The scene reconstruction was video-recorded by Sergeant Josateki. After viewing the footage, it was handed over to the investigating officer to be exhibited.
    
13. During the video-recorded reconstruction, Ahmed led the police team, showing all that had happened during the alleged incident. Ahmed was brought back to the Station at 4 p.m. Ahmed was feeling well and did not complain about anything during or after the reconstruction. Ms Chand visited Ahmed for the 3^rd time after 4 p.m. She made no formal complaint against him or any other officer for assaulting, threatening, or putting pressure on Ahmed. From 8 p.m. to 8.40 p.m., the interview was read back to Ahmed. Ahmed was allowed to add, alter or delete anything in the interview. Ahmed made the interview on his own free will. The interview concluded at 9 p.m. Ahmed’s refusal to sign the record of the interview, saying that his lawyer told him not to sign, was mentioned in the answer to question 285.
    
14. During the interview, Ms Chand had made a formal complaint against him to Divisional Police Commander Sami Suren that the police officers had ill-treated Ahmed. An inquiry was held by the Internal Affairs Unit regarding the complaint. His statement and that of the witnessing officer were recorded. However, no disciplinary action was taken against him or any other officer. He denied the allegations raised by the Defence in the grounds of voir dire. The transcribed English translation of the video-recorded scene reconstruction conducted on 23 November 2019 was marked and tendered as PE2.
    
15. Under cross-examination, DC Salesh admitted recording his statement on 24 November 2019, stating that PC Amit and PC Ram Karan were with him at the interview. PC Amit’s presence was not recorded in the interview record because Amit was there only to assist as the escorting officer.
    
16. He admitted saying in EIC that Ahmed refused to sign the record of caution interview. In his statement dated 24 November 2019 he had stated “I asked if he is willing to sign the interview, he signed that one place, later he stated that when his lawyer will come and read, then he will sign.
    
17. He asked Ahmed if he wished to sign at the end of each page, but he refused.
    
18. DC Salesh denied that Ahmed was forced to admit to the allegation during the 55-minute time slot from Q 45 to Q 52, and that’s why he had taken such a long time to ask just eight questions. He did not put notes in his notebook because everything was recorded in the record of the caution interview. The Station Diary entries are put by the Station Orderly. Therefore, he is not in a position to say if the entries were accurate. He denied that the first scene reconstruction at the workplace from 2.25 p.m. to 4.05 p.m. after Q 146 did not take place. The CSI Officer was not available at that time for video recording, which is why no video is available.
    
19. He denied that Ahmed was taken out from the interviewing room to a room at the back to be assaulted by him, PC Amit and Ram Karan. He denied that Ahmed began admitting to the offence after Q153 onwards because he was assaulted. He denied that Ahmed could not complain to him because he was one of the assailants.
    
20. He denied that Ms Chand had raised the issue of physical assault with him when she visited Ahmed at 5.40 p.m. after Q 155. He admitted that Ms Chand had complained to the Charge Room and the Commissioner during the interview.
    
21. He said that the mention of 5 minutes as the time spent on the travel from the Police Station to Drasa may have been a mistake. At the beginning of the video reconstruction, he explained to Ahmed that he was not obliged to go for the scene reconstruction, although it was not recorded. The fact that he accompanied Ahmed to the hospital is not reflected in his statement because it is just a summary. He denied that the statements were almost identical because he discussed his statement with Ram Karan and Amit.
    

PW2 - Police Sergeant Ram Karan

22. On 21 November 2019, he was appointed the witnessing officer for the caution interview conducted by Sgt Salesh from 21 to 23 November 2018. Ahmed was a bit nervous but looked normal. Ahmed had no injuries, and he did not complain of anything prior to the interview. All the rights were afforded to the suspect.
    
23. He was present throughout the interview, including the scene reconstruction. Ahmed was not assaulted, threatened or put under pressure by any police officer. Ahmed was given no false promises and he was treated well and professionally. After signing the first page Ahmed said that his lawyer instructed him not to sign the interview.
    
24. Ms Chand had complained that he and the interviewing officer had assaulted Ahmed. Ahmed was immediately taken for a medical examination on the instructions of the DCO. Ahmed was medically examined again at the end of the interview. He did not participate in the medical examination, but he was present during the reconstruction of the scene. No action was taken against him by the Internal Affairs Unit that inquired into the allegation. At no time did he see Ahmed being assaulted. The lawyer never complained to them.
    
25. Under cross-examination, Sgt Karan said that PC Amit only escorted the suspect and was not present at the interview. Two scene reconstructions were conducted in his presence. He denied that, on the 22^nd, they had taken Ahmed to a room at the back and assaulted him to put pressure to admit to the offence. He admitted that Ahmed started admitting after Q153.
    
26. At the end of the interview, Ahmed was given an opportunity to read the record, but Ahmed said he could not read, so Sgt Salesh read the interview back to Ahmed.
    

PW3 - WPC Rachna Chand

27. Upon conclusion of the interview, WPC Chand charged Ahmed in Hindi (preferred language) on 23 November 2019. Sgt. Vimal was present as the witnessing officer. All rights were given to the Accused during the charge. Ahmed signed all pages of the charge. Ahmed said he was fit to continue with the charge. Ahmed did not complain of anything. The original handwritten Hindi charge statement was marked as PE 3A, and the English translation as PE 3B. No officer assaulted, threatened or put pressure on Ahmed to admit to the offence. He read the Charge back to Ahmed. Ahmed made the charge statement voluntarily.
    
28. Under cross-examination, WPC Chand agreed that at Q21 Ahmed answered in the negative when asked, “Do you agree with what has been written in your Statement?”. He denied making any promises for Ahmed to admit to the offence.
    

PW4- Dr Joelyn Buadromo

29. Dr Buadromo examined Ahmed at 8.45 p.m. on 22 November 2019 at the Punjas Health Center. She tendered the Fiji Police Medical Examination Form in her evidence (PE4). Ahmed was feeling uneasy and complaining of headaches and body pains. Two police officers were present during the examination. The patient did not understand English, so PC Amit interpreted the patient’s history and the questions she wanted to ask. Ahmed complained of having a severe headache, coming on and off, for the past 2 weeks. She could not remember who provided the patient’s history.
    
30. She wanted to rule out if the headache was just a chronic headache or if it was because of an old injury. For this, the patient was assessed and found that his headache was because of the old injuries that he mentioned. She examined the patient from head to toe to check if the patient had any obvious markings or signs of physical injuries. There were no markings, bruising, bleeding, open wounds, cuts, scrapes or anything that would indicate a head injury.
    
31. The doctor saw red eyes, conjunctiva was red. He just wanted to know if the patient was in pain because sometimes red eyes occur due to infection (conjunctivitis or inflammation). However, the patient did not have any pain. Therefore, she concluded that the red eyes would have been caused by lack of sleep, not enough rest, dehydration or activities like drinking grog, or alcohol.
    
32. The right side of the patient’s face was paining, and a bruise was noted. She did not ask how the patient got the bruise. On the diagram, she just put a dot under the eye because it was an old (probably one week old) and superficial one, probably less than 1- 0.5cm. Because it didn’t have any swelling or opening she found it to be going into its healing stages. If the bruise happened just a day before on 23^rd, it would still be visible on the 24^th. Doctor opined that it could be a bruise resulting from a blunt force trauma caused before the 21^st. In D12 (b), he put a question mark (?) against the bruise because it was still being assessed to determine whether it was caused by blunt force trauma caused by an object or a fall. In conclusion, she found that the headache was most likely due to insomnia and stress.
    
33. Under cross-examination, Dr Buadromo said that when she was carrying out the actual medical examination, two police officers were allowed to be present in the examination room because she was worried about her safety. She could not remember asking the patient if it was okay for the police officers to be in the examination room. If the patient were not comfortable with the presence of the police officers, she would have asked them to move out to ensure confidentiality. She agreed that blunt force trauma could be caused by a slap or punch. She did not carry out a full body inspection by removing the clothes to ascertain the cause of the body pain. She agreed the translation should not have been taken from a police officer. She did not rule out the possibility that the bruise on the face could have been caused on 21 November 2019.
    

PW5 Dr Ranjit Singh

34. Dr Sing tendered the Fiji Medical Examination Form (PE5) which he filled out after examining Ahmed at 3 p.m. on 24 November 2019 at Kamikamica Health Centre. Police Officer Amit and Sheik were present during the examination. The patient had complained of a headache, but he was conversing well and showed ‘NIL distresses. He found no bruises or swellings. The patient was stable and fit. There was no complaint of any bruises or injuries on the face.
    
35. Under cross-examination, Dr Sing said that if the patient were complaining of any pain or bruises, he would have removed the clothes to have an examination.
    

PW6 Sgt. Josateki Seuseu

36. In 2019, Josateki was based at the Lautoka Police Station at the Crime Scene Investigation Unit. On 23 November 2019, he video-recorded the reconstruction of the scene in Drasa, which was part of Ahmed’s interview. He made two compact discs (CDs) of the video recording. The interviewing officer, DS Salesh, the escorting officer and the witnessing officer, Sgt. Karan participated. During reconstruction, no officer assaulted, threatened or put pressure on the suspect, nor was he given any promise. Ahmed was given all his rights. He tendered the two CDs marked as PE6A and PE6B. After viewing the videos in Court, he confirmed that the two CDs did contain what he recorded during the scene reconstruction interview at Madrasa Muslim School, where Ahmed worked and his house where the murder took place.
    
37. Under cross-examination, Josateki confirmed recording only one scene reconstruction. No one made any request to carry out any video recording apart from the video recording that was tendered.
    

Case for Defence

Mohammed Aiyaz Ahmed (The Accused)

38. Ahmed completed his education at Class 5 in Tavua Primary. On 20 November 2019, he was arrested by Amit from his house at Drasa after dinner and taken to the Lautoka Market Police Post, where he was locked until the next morning. He was taken to Lautoka Police Station the next morning, where he was interviewed for the murder of his wife.
    
39. While the interview was being conducted by Salesh, another officer was present with him. He denied admitting to the killing of his wife. Whenever he was denying the allegation, the officers told him to confess so they would take him to the funeral of his wife. They (Salesh, Amit and another police officer) stopped the interview, handcuffed (at his back), took him to another room and assaulted him badly. They punched his abdomen, kicked his back, heavily slapped his face 2-3 times and stepped on his neck with the shoes. They used something like an iron rod to hit him on his abdomen, repeatedly saying- ‘you have done it’. He went under a table to save himself, and when he was getting up, the edge of the table hit his head and received injuries on his head. He got injured in the abdomen and on the right side of the face. He complained to his lawyer when she visited him the day he was assaulted.
    
40. His lawyer told the officers to take him to the hospital. He was then taken to the hospital where he directly told the doctor about the injuries, but the doctor did not bother to examine them. Police officers were present during the examination. He did not take off his shirt to show the injuries on his abdomen because Amit had told him that if he showed injuries to the doctor, they would assault him again upon return.
    
41. He couldn’t recall when (the exact date) he was assaulted. He did not call the lawyer on 20 November 2019 before Amit took his mobile phone. After the assaults, he was taken from the police station to Drasa for scene reconstruction during the interview and that was the only occasion where he participated in a reconstruction. He confessed only because the police officers assaulted him. He could not complain to the police officers as they were the ones who assaulted him. `
    
42. Under cross-examination, Ahmed admitted that he was taken three times for medical examinations by police officers. He agreed that he had not been assaulted by the time the 1^st medical examination was conducted on 21 November 2019. He admitted that he already had some injuries in the abdominal area (boils on chest and stomach) and abrasion on his left leg from his workplace, as reflected in the 1^st medical report dated 21 November 2019. He admitted to giving answers at the interview and signing the 1^st page. He admitted refusing to sign the interview at Q18 because he wanted his counsel to come and read whatever was written before signing. He admitted giving the answers voluntarily until the assaults took place and denied having given the later part of the answers wilfully.
    
43. He admitted that he was the person in the video talking and directing the police officers. He did so because he was threatened with assaults.
    

Analysis/ Evaluation

44. At the outset, a preliminary issue arose regarding the admissibility of the caution interview because the Accused did not sign the interview record on each page and at the end. The Court took the view that this issue ought to be addressed in the ruling after listening to the evidence.
    
45. DC Salesh, in his examination-in-chief, said that Ahmed signed only the 1^st page and refused to sign after being seen by his lawyer. He did not force Ahmed to sign because that was the suspect’s right. The inconsistency highlighted by Defence between what he said in his evidence and what he had stated in his statement dated 24 November 2019 is not material to discredit DC Salesh’s evidence.
    
46. The Accused does not deny that he was interviewed by DC Salesh and that the answers recorded were his. The grounds of voir dire in fact, were filed on that basis. The Accused admits to signing the 1^st page and refusing to sign the record from Q18 onwards because he wanted his counsel to read it before signing.
    
47. The position of the Defence is that the answers in the latter part (Q153 onwards), where the alleged confession was recorded, were extracted by force using police ill-treatment and brutality. Therefore, there is no basis to hold the record of caution interview inadmissible merely because it was not signed by the Accused. The relevant questions at the voir dire hearing are whether the Accused gave the answers voluntarily and whether the interview was conducted fairly and without violating his constitutional rights.
    
48. The four police officers who testified at the inquiry said the interview was conducted fairly, without violating the Accused’s constitutional rights and in compliance with the Judges’ Rules. They denied assaulting, threatening, putting pressure or having given false promises to extract a confession. They all denied that the interview was conducted under oppressive circumstances.
    
49. Although the grounds of voir dire raised all these issues, the Accused, in his evidence, did not describe how he was oppressed. The Defence did not dispute that the police stopped the interview and took the Accused to the hospital whenever he complained of headaches. The prescribed medicine has been given. The record shows that adequate breaks were given for the Accused to rest, have meals and use the washroom. Although there is evidence that the Accused was handcuffed during police detention, nothing is before this Court to hold that the Accused was treated in an inhumane or degrading manner.
    
50. No ground was raised on the basis that the Accused was detained in police custody, exceeding the time limit permitted by the Constitution (48 hours). However, it was alleged that the Accused was systematically softened during his detention. There is, however, no plausible evidence that the Accused was detained in an inhumane and degrading manner or that he was softened as a result of the long detention. The excessive time appears to have been spent to facilitate the Accused to rest and to get the medical attention he needed. The excess of detention period in police custody of an accused would not of itself render a confession inadmissible unless it appears that the accused was prejudiced thereby.
    
51. The Accused had exercised his right to counsel. His lawyer had visited and spoken to him thrice during the interview. The right to remain silent under the Judges’ Rule No.2 had been afforded, albeit not exercised. The right to know the charge had been afforded. The interview was conducted in his preferred language. Since the Accused had received a school education up to class 5, it is inconceivable that he could not read or write his vernacular. Even if he could not, he was not prejudiced because the record was read back to him at the end of the interview. I am not convinced that the interview was held under oppressive or unfair circumstances or in breach of the Accused’s Constitutional Rights as was alleged in the grounds of voir dire.
    
52. The crucial issue to be decided is whether the Accused was assaulted to force him to confess, thus rendering the confessions inadmissible. It would be seen that Ground (g) is raised on the basis that the Accused confessed because he was promised that he would be allowed to attend his wife’s funeral. This ground is inconsistent with the grounds raised on the basis that the Accused confessed only because of police brutality.
    
53. The Defence alleged that, whilst the interview was in progress, the Accused was taken to a room and assaulted by three police officers (Sgt Salesh Kumar, PC Ram Karan and PC Amit) to force him to confess. The police vehemently denied this allegation.
    
54. The Accused failed to say exactly when, on day 1, day 2 or day 3 of the interview, he was assaulted. He only said he was assaulted before he was taken for scene reconstruction. It was put to DC Salesh that the Accused was forced to admit to the allegation during the 55-minute time slot from Q 45 to Q 52, and that’s why he had taken such a long time to put just eight questions. However, no confession was recorded immediately after this time slot or on day one. The failure to put notes in his notebook does not materially affect DC Salesh’s credibility because everything that transpired at the interview was recorded in the record of the interview itself. The discrepancy between the Station Diary (SD) entries and the interview record could not affect DC Salesh’s credibility as the SD notes were put by the Station Orderly, whose accuracy couldn't be verified by DC Salesh.
    
55. It was argued that the first scene reconstruction at the workplace (from 2.25 p.m. to 4.05 p.m.) after Q 146 never took place and that this was the time spent assaulting the Accused. This argument was based on the absence of any video recording for the 1^st reconstruction. DC Salesh explained the absence of a video. He said no CSI Officer was available to video record during that time. The mere absence of a video recording does not suggest that the 1^st reconstruction never took place.
    
56. It was the position of the Defence that the Accused began to confess only after Q153 onwards because he was assaulted during the so-called (first) reconstruction and that the issue of physical assault was raised when his counsel visited the Accused after Q155 at 5.40 p.m. There is no plausible evidence that the Accused had complained to DC Salesh or PC Karan about an assault. The Accused admitted that he did not complain to DC Salesh because he was one of the assailants. His explanation is quite reasonable. However, DC Salesh does not deny that Ms Chand complained to the Commissioner when the interview was still in progress. In the process of investigation into this complaint, the Accused was immediately taken to the hospital for an examination. After this examination, Sgt Salesh was allowed to continue with the interview. This shows that the allegation is baseless. If the complaint was substantiated by medical evidence, DC Salesh would not have been allowed to continue with the interview.
    
57. It was argued that the Accused started confessing to the murder only after Q 153, and that was the time before which the Accused was assaulted. It would be observed that the questioning about the death of the Accused’s wife had been started only after Q 153. Therefore, there is no basis for the allegation that the Accused started to confess after Q 153 because he was assaulted.
    
58. Two pieces of evidence convinced me that the Accused was not assaulted by the police officers, firstly by the medical evidence and secondly by the video that recorded the second scene reconstruction. As was alleged in Ground (h), there is no evidence that on 25 November 2019, the Lautoka Magistrates Court had made an Order that the Accused be taken for a medical examination and that the police officers breached the said Court Order in violation of Accused’s constitutional rights. The fact remains that the Accused was already taken for not one, not two but three medical examinations before him being produced in Court.
    
59. The Accused has been taken for a medical examination after the alleged police assault where Dr Buadromo examined the Accused at 8.45 p.m. on 22 November 2019. I doubt if the police officers would take a suspect for a medical examination if they had assaulted him, causing injuries.
    
60. According to the Dr Buadromo, the Accused was feeling uneasy, and he complained of having a severe headache, coming on and off, for the past 2 weeks. The doctor wanted to rule out if the headache was just a chronic headache or if it was because of an injury. For this, the Accused was assessed and found that his headache was because of the old injuries that he mentioned. The doctor examined the patient from head to toe to check if the patient had any obvious markings or signs of physical injuries. There was nothing that would indicate a head injury. She concluded that the headache was most likely due to insomnia and stress.
    
61. Dr Buadromo also noted red eyes where the conjunctiva was red, but the patient did not complain of any pain that would indicate an injury to the eyes. The red eyes were attributed to lack of sleep, dehydration or activities like drinking grog or alcohol.
    
62. The final finding of Dr Buadromo was the bruise noted on the right side of the Accused’s face. It was an old (probably one week old) and a superficial one, probably less than 1- 0.5 cm. It was going into its healing stages because it had no swelling or opening. Therefore, on the diagram, she just put a dot under the eye. She opined that if the bruise happened just a day before, it would still be visible on the 24^th. She concluded that the bruise happened before the 21^st.
    
63. It was argued that the presence of the police officers during the Accused’s medical examination prevented the Accused from giving the history (that he was assaulted by police officers) freely.
    
64. The doctor’s explanation for the blatant violation of medical ethics on her part was that the Accused did not understand English, so PC Amit was allowed to come inside to interpret the patient’s history and the questions she wanted to ask. The doctor was also worried about her safety. She further said that if the patient were not comfortable with the presence of the police officers, she would have asked them to move out to ensure doctor-patient confidentiality.
    
65. These explanations would not be satisfactory given the possibility of employing a hospital staff for this task. However, although she failed to inspect by removing the patient’s clothes, the doctor examined the Accused from head to toe to check if he had any obvious markings or signs of physical injuries. Upon this examination, the doctor found nothing except for the bruise on the right side of the Accused’s face. The doctor’s evidence under cross-examination that the bruise on the face could have been caused on 21 November 2019 is inconsistent with the detailed finding in her evidence-in-chief. Therefore, the last comment she made should be disregarded.
    
66. Dr Buadromo’s evidence in general does not support the Defence’s version that the Accused was brutally assaulted by the police officers. According to the Accused, three police officers had assaulted him badly while he was still handcuffed (at his back). They had punched his abdomen, kicked his back, heavily slapped his face 2-3 times and stepped on his neck with the shoes. They had even used something like an iron rod to hit him on his abdomen. When he was getting up, the edge of the table had hit his head causing injuries to his head. If what he said is true, the Accused must have received serious injuries. But none is reflected in the medical report.
    
67. Dr Sing examined the Accused at 3 p.m. on 24 November 2019 (PE5). According to him, the Accused was conversing well and showed ‘NIL distress’ and was stable and fit, although he complained of a headache. There was no complaint of any bruises or injuries on the face, and he found no bruises or swellings. Dr. Sing’s findings suggest that the bruise found by Dr Buadromo on the Accused’s face was not obvious when he examined the Accused.
    
68. There is no credible medical evidence to find that the Accused had received injuries or suffered any medical condition because of police brutality.
    
69. After viewing the video of the scene reconstruction conducted on 23 November 2019, I am convinced that the Accused neither received any visible injuries nor was under stress. The Accused was seen cooperating with the police and showing the crime scene and his workplace freely and voluntarily. The Accused’s evidence that he cooperated because he was under threat is not reflected in his image portrayed in the video.
    
70. The witnessing officer had observed the whole interview process, including the scene reconstruction. CSI Officer Josateki confirmed that the Accused cooperated during the reconstruction of the scene. He did not see any injuries on the Accused. The Charging Officer also met the Accused soon after the interview. They had not seen any injuries on the Accused, nor had they received any complaint from the Accused. I accept that the evidence of the police officers is the truth.
    
71. Quite contrast with what his Counsel argued, the Accused said he directly told the doctor about the injuries despite the police officers being present during the medical examination. He said that he did not take off his shirt to show the injuries on his abdomen because he feared PC Amit. However, he agreed that he already had some injuries in the abdominal area (boils on chest and stomach) and abrasion on his left leg from his workplace, as reflected in the 1^st medical report dated 21 November 2019. It was PC Amit who had escorted the Accused for the first medical examination. The first medical report the Accused admitted suggests that he had shown his abdominal injuries by removing his shirt despite the presence of PC Amit. Therefore, I am unable to accept that the Accused did not remove his shirt because he feared Amit.
    
72. As I said before, the Accused’s evidence that he was taken for scene reconstruction after being assaulted is neither supported by the medical evidence nor by the video, which I have had the opportunity to view. The Accused’s evidence that he confessed only because the police officers assaulted him cannot be accepted. The fact that the Accused dared to refuse to sign the interview record suggests that he has had the liberty to do so. I reject the evidence of the Accused, which is not consistent and credible. It does not create any doubt in the version of events of the Prosecution’s case.
    
73. I am satisfied that the Accused gave all the answers at the interview and that the answers were given freely and voluntarily. I hold the caution statement, charge statement and the video recording admissible in evidence at the trial proper, scheduled for January 2025.
    

Aruna Aluthge
Judge

2 December 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecutions for State
Messrs Anishini Chand Lawyers for Defence