State v Turagadamudamu [2010] FJMC 194; Criminal Case 485 of 2010 (13 April 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: - 485/10

STATE

v.

SEFANAIA TURAGADAMUDAMU,
PENI TEKE VOSAVINAKA,
SUNIA RORAQIO,

For Prosecution : - Mrs George W
1st and 3nd Accused persons : - Miss Vaniqi (Duty Solicitor of Legal Aid).
2nd Accused :- Miss Vaniqi.

RULING

1. All three accused persons challenged the admissibility of the statements in the caution interviews made by them on the 23rd of March 2010, 27th of March 2010, and 28th of May 2010 respectively and the Charging Statement of 1st and 2nd accused persons. All three accused persons alleged those statements in their respective caution interviews and charge statements were not made voluntarily as a result of assaults they received from the Police officers before the record of their caution interviews.
   
2. Based on their challenge of admissibility of the three caution interviews of the three accused persons, a voir dire hearing commenced on 15th of March 2011. The prosecution called 7 witnesses and produced nine exhibits marked as 1- 6A. At the conclusion of the Prosecution case, the defence called four witnesses as well as the three accused persons.
   
3. Both prosecution and the defence filed their written submissions respectively at the conclusion of the voir dire hearing.
   
4. Having carefully considered the evidences adduced by the both the prosecution and the defence and their respective written submissions, I now proceed to pronounce my ruling in this voir dire hearing on the admissibility of three caution interviews of the three accused persons and the charge statements of the 1st and the 2nd accused persons.
   
5. The prosecution vehemently denied the allegation of assault by the police officers before and during the caution interviews of three accused persons. The evidence given by all seven prosecution witnesses were extensively covered in details leading up to the record of caution interviews from the time of arrest of three accused persons.
   
6. Though I do not expect to reproduce the evidence adduced by both the prosecution and the defence, I now briefly summarize them before I precede to analysis the evidence with the legal principles pertaining to the admissibility of the caution interviews. The first prosecution witness DC Isireli Temo is the arresting officer of the 1st accused. He led a team of police officers to the house of 1st accused early the inmorning of 23rd of March 2010 and arrested the 1st accused therein. He testified that the parents of the accused were present and accused did not resist or retaliate for arrest. After the arrest, he escorted the accused to Nabua Police station which was denied by the 1st accused as he claimed that he was first taken to Totogo Police station before he was taken to Nabua police station. Prosecution did not produce the cell book and/ or the station diary of Nabua police station on 23rd of March 2010. DC Temo specifically stated that neither he nor any of his team members assaulted the accused during the arrest. Moreover, he stated that he can’t recall whether the accused got injured during the arrest, which I do not consider as DC Temo precisely stated that the accused did not resist and no one from his team assaulted him. Wherefore there was no possibility for the accused to get injured during the arrest.
   
7. Second prosecution witness is DC Sanita Laqinisies, who is the interviewing officer of the 1st accused and the arresting officer of the 2nd accused. He testified in his evidence that he conducted the caution interview of the 1st accused which was commenced on 23rd of March and concluded on 25th of March 2010. According to DC Sanita there was no witnessing officer for the caution interview. Accused appeared normal and he only noticed that the accused was having a black eye. He stated that he did not inquire about this injury. He affirmatively stated that the accused was not assaulted during the caution interview and he gave all his answers voluntarily. In his cross examination DC Sanita stated that he does not know anything about injuries reported on the Medical report of the 1st accused dated on 26th of March 2010. He further stated the 1st accused was given a break to meet his father during the caution interview.
   
8. In respect of the 2nd accused, DC Sanita stated that he arrested him at his home early in the morning of 27th of March 2010. He specifically testified that the 2nd accused appeared normal and did not resist or retaliate during the arrest. He denied using any physical force on the 2nd accused and precisely stated that 2nd accused was in good health when he was arrested.
   
9. Third prosecution witness is DC Sakulu Colati who is the charging officer of the 1st accused. He stated in his evidence that he observed an injury on an eye of the 1st accused when he charged the accused on 25th of March 2010. He testified the accused was not assaulted and he gave his answers voluntarily. After the accused was charged DC Sakulu escorted the accused to Samabula police station on the same day. He confirmed that accused had only an injury on his eye and it was further affirmed with the entry in the cell book of Samabula Police station. In addition to that DC Sakulu escorted the 2nd accused to Samabula Police Station on 27th of March 2010 from Nabua police station. Again he confirmed that the 2nd accused had no injuries and further affirmed with the entry in the cell book of Samabula police station.
   
10. Fourth prosecution witness is DC Clint Kelemeti who is the interviewing officer of the 3rd accused. He stated that he conducted the caution interview of the 3rd accused on 27th of May 2010. Further he testified that he did not assault the accused before and during the caution interview. According to DC Clint the accused appeared normal and had no visible injuries. He stated that accused were given a break to consult his lawyer during the caution interview.
    
11. Firth prosecution witness DC Prashneel is the charging officer of the 3rd accused. He supported the evidence of DC Clint and stated that the accused appeared normal and he was given all of his rights during the charging.
    
12. A/Cpl Atish Lal is the sixth prosecution witness. He stated that he witnessed that the 2nd accused and interviewing officer were making jokes when he entered into the interviewing room.
    
13. Seventh prosecution witness is DC Amani Satnwere who is the investigating officer in this case. He testified that DC Peni Kubu conducted the caution interview of the 2nd accused but in his cross examination admitted that he was not present at the caution interview of 2nd accused. Prosecution did not call DC Peni Kubu as he is now on overseas mission. It is noteworthy to mention that DC Amani noticed a swollen face and few scratches on the mouth of the 1st accused. He stated that 1st accused told him that they are old injuries when he inquired about them. He further stated in his evidence that he was informed by the 2nd accused about his body pain and he took him for medical examination. He admitted that he did not make any entries in the Station dairy and /or in the cell book of the police station about the 2nd accused person’s complain of body pain. He stated that he can’t explain and has no knowledge about how these 1st and 2nd accused persons got injuries as per their respective medical reports.
    
14. All three accused persons gave evidence on oaths for the defence and further called Mr. Viliame Valanitabua, the lawyer who visited the 3rd accused during his caution interview on 27th of May 201, Mother of the 1st accused person, Mr. Saulo Vunivesi and Elia Nanoa both of them witnessed 1st accused was made naked and rubbed chilies on his body by the Police officers at the Samabula Police station.
    
15. Having briefly considered the evidence adduced by both parties, I now proceed to examine the relevant legal principles pertaining to the admissibility of the caution interview.
    
16. In the Privy Council case of at 261 d261 discussed the basic control over admissibility of statement, where it was held “"The basic control over admissibilitstateare found in the the evidential rule that an admission musn must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of LORD SUMNER in IBRAHIM v. R (1914-15) AER 160;at 877.&#77. It is to the eve that the cthe court must turn for an answer to the voluntariness of the confessions.
    
17. In Shiu Charan v R (F.C.Am. App. 46/83) held that "First, it must be established affirmatively by the the Crown beyond reasonable doubt the statements were voluntaluntary in the sense that they were not procured by improper practices such as the use of force, ts or prejudice or inducement by offer of some advantage - what has been picturesquely descrdescribed as "the flattery of hope or the ny of fear." Ibrahim vhim v R&#1914) AC ) AC 599. DPP v Pin Lin&(1976) AC 574C 574. Secondly&#16n if such volunvoluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the polehaverhaps by breach oach of the Judges Rules falling short of o of overbearing the will, by trickery or by unfair treatment. Regina g (1980) AC 402C 402, 436 @ c - E." (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996)
    >
18. Th8">The burden is on the prosecution to prove bereasonable doubt that the sthe statement made in caution interview is made in voluntarily. (State v Rokotuiwai - [1996] FJHC 159; Hac0009r.95s (21 November 1996).
    
19. The burden of proof beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
20. Lord Goddard CJ in R v Summers (36, Cr. App R. 14 at 15 CCA) held that "Jury before they convict, they must be satisfied so that they are sure of the guilt of the accused". furthermore, it was held in " R v Bentley ( 2001) 1 Cr App R 21" that on reviewing all the evidence, if they were unsure or left in any reasonable doubt as to the accused's guilt, that doubt must be resolved in the accused's favour".
    
21. Bearing in mind the aforementioned legal precedents on the standard of proof beyond reasonable doubt, I now draw my attention to analysis the evidence of the prosecution and the defense.
    

First Accused Sefanaia Turagadamudamu

22. According to the first prosecution witness DC Isireli, the 1st accused was arrested without any resistance or retaliation. He specifically stated that neither he nor his colleagues applied any physical force on him. Apparently it transpired from the evidence of DC Isireli that the accused was not injured during the arrest. DC Isireli did not state that he observed any injuries on the 1st accused when he was arrested. The learned counsel for the prosecution argued in her written submission that it would not be possible for DC Isireli to notice any injuries on the accused since the raid was conducted early in the morning, when it was still dark, for which I do not agree. If DC Isireli arrested the accused without causing any injuries to the accused, he would have notice whether the accused had any injuries or not, when the accused was escorted to the Nabua Police station subsequent to his arrest early in the morning. I do not think the Nabua police station was in dark when he was escorted into the police station by DC Isireli. Further as the learned counsel for the Defence brought to my attention in her written submission, the prosecution failed to produce the entries of station diaries or cell book pertaining to the 1st accused when he was escorted to the Nabua police station in order to ascertain the condition of the accused following his arrest.
    
23. In view of the evidence given by the DC Isireli, it is affirmative that the 1st accused was arrested on 23rd of March 2010 in good health. Suddenly both the interviewing officer and the charging officer of the accused noticed an injured eye on the accused on 23rd of March 2010 when he started his caution interview. When these both witnesses cross examined, both of them affirmatively stated that they noticed an injured eye only and apart from it, the accused appeared normal during both caution interview and the charging. This was further affirmed by DC Sukulu with the entry in the station diary of the Sambula police station on 25th of March 2010 when the accused was escorted to the Sambula Police station by DC Sukulu. Contrast to these two witnesses of the prosecution, the investigating officer, DC Amani stated in his evidence that he noticed that the 1st accused was having a swollen face and some scratches on his mouth when he first saw him.
    
24. Interestingly, it is apparent, that the 1st accused who was arrested in good health subsequently was noticed by the interviewing officer and the charging officer with an injured eye on the same date of his arrest. Causing more contradiction, the investigating officer stated in his evidence that he notice that the 1st accused was having a swollen face with some scratches on his mouth which was not notice by any other police officer who had contact with the 1st accused since he was arrested. Ironically the medical report of the 1st accused dated 26th of March 2010, three days after he was arrested stated that he has abrasions on his back and left shoulder area, hematoma on his right heel/sole and back of his left knee. In addition the doctor ordered an x ray test for the accused.
    
25. All prosecution witnesses failed to give precise and specific explanation when and how all these injuries, those were noticed by the interviewing officer, the charging officer and the investigating officer, and other injuries recorded in the medical report came on the accused person who was arrested in good health by the DC Isireli on 23rd of March 2010.
    
26. The accused in his evidence explained how he sustained with these injuries due to the brutal assault of the police officers at the police station. The mother of the accused and two other witnesses who gave evidence for the 1st accused supported the 1st accused person's his evidence of how he sustained with these injuries.
    
27. Having analyses the evidence pertaining to the 1st accused, I find that prosecution failed to clear the doubt of assaulting the accused before his caution interview and record of his charging statement.
    

Second Accused Peni Teke Vosavinka

28. DC Sanita precisely stated in his evidence that he arrested the accused in good health on 27th of March 2010. It is quite contrast to find that the accused who was arrested in good health on 27th of March 2010 found having swelling of feet by the doctor on 29th of March 2010 according to the medical report of the 2nd accused. Further doctor recorded that this "swelling may be by blunt force" in the medical report. None of the prosecution witnesses gave satisfactory explanation how the 2nd accused got swelling feet two days after he was arrested in good health.
    
29. D.C. Amani, stated in his evidence the he was informed by the 2nd accused about a body pain, but subsequently admitted that he did not make any entries in the station dairy or in the cell book about these complaint. In his cross examination he failed to give explanation about the injuries of 2nd accused recorded in his medical report.
    
30. The 2nd accused in his evidence, specifically explained how he sustain this swelling feet. He stated that he was assaulted on his feet with sticks by police officers before the caution interview. Prosecution failed to provide any witness who witnessed the conduct of caution interview of the 2nd accused.
    
31. Having considered all these evidence pertaining to the 2nd accused, I find again that prosecution failed to clear the doubt of assaulting the 2nd accused before his caution interview and charge statement.
    

Third Accused Sunia Roraqio

32. Only the interviewing officer and the charging officer of the 3rd accused gave evidence for the prosecution. Both of them affirmatively stated that they did not use any form of force and/ or assault the accused before or during the caution interview. The interviewing officer testified in his evidence that the 3rd accused was given a break to consult his lawyer, Mr. Vilame Valanitabua.
    
33. The 3rd accused alleged that he was assaulted by five police officers before the caution interview was recorded at the Samabula Police station. Mr. Vilame Valanitabua who was called by the defence for give evidence for the 3rd accused, stated in his evidence that he observed injuries on 3rd accused and his lips were swollen when he visited the accused at Samabula Police Station on the day of caution interview was recorded.
    
34. There is a direct conflict and contrast with the evidence adduced by the prosecution and the evidence adduced by the Defence in respect of the injuries of the 3rd accused person. In this circumstance the determination of the admissibility revolves around the credibility of the evidence.
    
35. I find Mr. Valanitabua as an independent witness rather than a witness for the defence. In his evidence he contradicted with the evidence of the 3rd accused, where he stated that he was informed by the accused that he was assaulted in Nadi after he was arrested but not at the Samabula Police Station. The 3rd accused stated in his evidence that he informed Mr. Valanitabua that he was assaulted before the caution interview at the Samabula Police station. Apart from that contradiction, Mr. Valanitabua testified that he observed the injuries on 3rd accused which was denied by the two prosecution witnesses. I accept the evidence of Mr. Valanitabue in respect of the injuries on the 3rd accused. Hence I find the prosecution failed to provide satisfactory explanation of the injuries on 3rd accused person which was observed by his lawyer during the break of his caution interview.
    
36. In view of foregoing reasons, I determined that the prosecution failed to establish beyond reasonable doubt that the statements red in d in the caution interviews of three accused persons and charge statements of the 1st and the 2nd accused persons were voluntary in the sense that they wer not procured by the use of force, threats or prejudice or inducement.
    
37. Accordingly, I rule the three statements in cauticaution interviews made by the three accused persons and two charging statements of the 1st and the 2nd accused persons are not admissible as part of the prosecution case in this trial.
    

On this 13th d3th day of April 2010.




R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.