State v Vusonitokalau [2008] FJMC 5; Criminal Case No 2207 of 2004 (21 May 2008)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2207 of 2004

STATE

V

FELIX VUSONITOKALAU
&
SENIVALATI VEITOGAVI

Before Ajmal Gulab Khan Esq
Resident Magistrate

Prosecution Ms. Madanavosa (DPP)
Accused: Mr Valenitabua

Date of Hearing: 20/5/08
Date of Ruling: 21/5//08

RULING

The accused Felix Vusonitokalau objects to the admission of his caution interview by police taken on 19th and 20th of September 2003 into evidence.

His grounds are assault and intimidation which he states as follows:-

"I was taken to a room at Nabua police station. The officers started to threaten me and used their hands. I was told to lie down on floor. Then I was slapped on head and sworn at. Malakai slapped my head many times so I can confess. Apakuki also assaulted me. Also Sitiveni and Tuveli. There were others also but I didn’t recognize them. They all slapped me. I lay on my stomach down. Then I was taken to the cell when interview started I was assaulted again.

I recall Apakuki grabbed my neck and choked my throat pushing me on the floor. He stepped on my chest and my throat with the leg. I got up and Sitiveni started to punch my head. He punched more than 5 times. Mala also assaulted my chest. He gave me short punches, also to my head.

There were plenty officers. I don’t know their names. They slapped and asked about the robbery. The assault lasted about half an hour to 40 minutes. I was injured. Had swollen chest and head.

The law relating to admission of confessional statement is that it should be voluntarily obtained. Judges rules and the constitution S27 is relevant.

The question is whether under principle (e) of Judges Rules the statement is voluntary.

"in the sense that it has not been obtained from accused by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression."

"Oppression is something which tends to say and has sapped the freewill which must exist before a confession is voluntary." – Callis –v- Junn (1963) 45 Cr App. R. 40.

The onus is on the prosecution to prove beyond reasonable doubt voluntariness, lack of oppression and no breach of the constitution. Also no breach resulted in unfairness or oppression to the accused.

Prosecution called 5 police officers experienced officers of over 18 years experience in the force. They were based at different police stations but belonged to operation ‘strike back’ team which was a special unit to arrest suspects in major crimes.

The 1st witness Det. Sgt. Chale was 18 years in force. On 19/9/03 he interviewed the accused. He started on 19th September 2003 but suspended it and recommenced on 20/9/03 till concluding at 7.25 at night. Accused was given breaks at intervals. His witnessing officer Malakai was present during interview who also signed the statement. He denied there was any assault or threat as described by the accused.

Accused was given opportunity to add or delete to statement at the end but he didn’t. Accused made no complaints. He was present when Felix was arrested at a Raiwai house with one other Vilikesa Koroi who was a co-accused. Both were taken to Nabua police station. He described four others were present at arrest being Constable Viliame, Const. Sitiveni, Malakai Seru and Corp. Epeli.

Malakai Seru gave evidence. He is 20 years experience in force. He was on duty on 19th September. He witnessed the interview of accused. Was present throughout the interview. He countersigned as witnessing officer. Accused didn’t make any complaints to him. He denied being in the arresting team in the morning of 19th. He was a member of the strike back unit but not in the arresting team that day.

He is the only Malakai in the team. He denied assaults on the accused.

Inspector Aapakuki was in charge of the strike back team. He is 20 years experience in the force. He was not directly involved with the arrest or interview of the accused in this case. He denied grabbing his throat and stepping on his chest and throat of accused.

He was seen to be physically huge in size and appearance heavy in weight. Constable Viliame gave evidence. He has been 21 years in the force. He formally charged the accused after interview. Accused made no complaints to him. Accused signed the charge and he countersigned it. He denied any assault threat or violence on accused. He was part of arrest team on 19/9/03. He couldn’t recall time of arrest.

Const. Sitiveni gave evidence. He is 17 years experience. He was a member of the team. He witnessed interview of another accused. He was not in contact with Felix’s case or arrest. The accused made a statement when charged.

The accused gave sworn evidence in court. He didn’t know date of arrest but it was 8 am from a house at Raiwai. He recognized officers present – Malakai, Viliame, who gave evidence in court. One Epeli was there but was not in court today. He said it was house of Apolosi Turaga and not Koroi. Koroi was not with him that day.

He described how he was assaulted on head and slapped. He said Apakuki, Sitiveni, Viliame, Malakai and 2 others assaulted him as described at the first page of this ruling. He was assaulted before interview and when arrested. He said there were plenty officers in the room, he didn’t know all of them by names. He had injuries. The police didn’t allow him to see a doctor. He had swollen head and chest. When he told them to go to hospital, they told him to ask the court.

He made the complaint to court and the court ordered medical examination but it was not done by police. When remanded at Korovou, he was medically examined. He had no medical reports.

He couldn’t remember details as a length of time had elapsed between 2003 till today. It was suggested Insp Apakuki was heavy and if stood on chest he won’t survive. Accused said ‘he can survive’. Accused says he made the complaint to court at first appearance.

I have considered all evidence on this ‘voir dire’ trial. Several accused were charged in another file 2117/03 when they first appeared in court on 22/9/03. Felix was the 1st accused with four others in that case. Felix was represented by Mr Nathan who applied for bail. His counsel gave 8 reasons for bail to be granted. He mentioned without details that ‘all accused were beaten up by police whilst in custody.’ This was not elaborated or details of injury given to court at that time.

The court ordered as a condition of custody that medical examination be conducted the next day 23/9/03. It was adjourned for mention only on 3/10/03 but there was no issue of medical examination raised before court.

I find the police officers evidence to be consistent in material particulars. The accused does not appear to be a person who could be easily intimidated or frightened. He seems intelligent and gave evidence fluently. He does not appear to be a person who would have left things lie without complaints at that time. Also I agree with prosecution question ‘if such well built and heavy weights as Apakuki had stood on his chest and throat the accused being a slim and lean physically may have found it difficult to have survived the incident.’

It’s also difficult to imagine the assault lasting for half an hour or 40 minutes as described by the accused. If so, he would have a medical report with visible injuries and not just a mention in court. Also the counsel representing would have made a big issue’ of it which was not done on the very next day in court appearance.

I find the prosecution evidence consistent with the interview being taken voluntarily without assault or inducement. There has been no complaints about breach of his constitutional rights under S27 of the constitution both by accused or counsels.

I find there is no evidence of assault threat or intimidation by police officers. The accused further raised the issue of 1 oppression by police officers who were persons in authority at the Nabua police station. This created fear in accused and he could not deny anything asked. He therefore agreed to all questions and confessed to the police. As therefore unfair to admit it in evidence.

There is no complaints about accused treatment by police as to length of interview or means and refreshments. It seems he was looked after and breaks given during the interviews therefore not oppressive.

Was it oppressive environment?

"what may be oppressive to one or someone inexperience in the ways of the world may turn out not to be oppressive when one finds that accused person is of tough character and an experienced man of the world.’ – R –v- Prager (1972) 56 Cr. App Rep. 151 there were different officers involved in the interview, charge and in Nabua station when accused was taken on 19th September 2003.

From his demeanor and evidence in court the accused does not seem to be person who would have been easily intimidated or oppressed by police officers in a police station environment as if to "crumble and speak when otherwise he would have remained silent". He appears to be well spoken, withstood cross examination and was unswerved in court.

The burden to prove voluntariness was on prosecution beyond reasonable doubt. I find the confession to be voluntary given.

There is also no reason to exclude it from evidence on grounds of unfairness.

I hold the interview and charge statements are voluntary and admissible in evidence.

Dated this 21st day of May 2008.

Ajmal Gulab Khan
RESIDENT MAGISTRATE