Tuilaselase v State [2019] FJSC 2; CAV0025.2018 (25 April 2019)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION No: CAV 0025 of 2018
[On Appeal from Court of Appeal No: AAU 0068 of 2014]

BETWEEN:

PENIASI TUILASELASE
Petitioner

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Anthony Gates, Judge of the Supreme Court

Hon. Mr. Justice Suresh Chandra, Judge of the Supreme Court
Hon. Mr. Justice Frederik Brand, Judge of the Supreme Court

Counsel: Petitioner in Person
Mr. Y. Prasad for the Respondent

Date of Hearing: 15 April 2019

Date of Judgment: 25 April 2019

JUDGMENT

Gates, J

1. I have read the draft judgment of Brand J. I am in complete agreement with his reasoning, conclusion, and orders proposed.
   

Chandra, J

2. I agree with the reasons and conclusions in the draft judgment of Brand J.
   

Brand, J

3. The Petitioner, Mr. Peniasi Tuilaselase, together with 3 others were indicted in the High Court before a judge and assessors on a count of:
   

(a) Aggravated robbery in contravention of Section 311 (1) of the Crimes Act 2009; and

(b) Theft of a motor vehicle in contravention of Section 291 (1) of the Crimes Act 2009.

4. Following upon a unanimous decision by the three assessors, with which the Judge agreed, all four accused persons were convicted on both these counts and sentenced to 14 years imprisonment with a non-parole period of 12 years. Their appeals against both conviction and sentence were dismissed by the Court of Appeal on 14 June 2015. The petitioner’s three co-accused then petitioned this Court for leave to appeal against that dismissal. All three applications for leave to appeal were however refused for lack of merit on 1 November 2018 by Justices Chandra, Keith and Chitrasiri in a judgment under the name Alipate Lesi, Samuela Beeby, Sitiveni Tuisamoa v The State CAV 0016 of 2018, CAV 18 of 2018 and CAV 20 of 2018 (‘the Lesi case’). In the meantime, the petitioner brought his own separate petition which is the one under present consideration and which is an application to appeal against the conviction only.
   
5. The facts surrounding the charges against the petitioner and his three cohorts require no detailed account. By the nature of the case, they have little influence on the outcome. They can be broadly stated in the following way. On 25 July 2012, at about 3.00 am the victim of these crimes, Mr. Ram, saw 5 to 6 people in his compound. He shouted; “thieves! thieves!” and opened his front door in the hope that some of his neighbors would come to his assistance. But as he opened the door, the intruders who were all wearing masks and who were armed with knives and bolt cutters, rushed into his house. They demanded money, jewelry and other items of value. They assaulted Mr. Ram and his son. In order to avoid a continuation of these assaults, Mrs. Ram gave the assailants what they wanted. In the event, the robbers got away with cash and valuables to the tune of between $20,000 and $25,000.00. Added to this, they left in Mr. Ram’s car. Neither Mr. Ram nor his family members who testified at the trial were able to identify any of the intruders because they were all wearing masks.
   
6. The four accused persons were interviewed by the police and allegedly confessed to these crimes. All four of them denied however that these confessions were voluntarily made in that the police forced these alleged confessions out of them. The police on the other hand maintained that the caution interview statements were given voluntarily by all the accused persons, including the then number 4, who was the petitioner. In consequence a trial within a trial ensued during which the police officers involved as well as the accused persons gave evidence. At the end of these proceeding, the learned Judge gave his Ruling. It read in relevant part;
   

“10. I have carefully considered the evidence of all the prosecution and defence witnesses. I have compared and analyzed all of them. After considering the authority mentioned in paragraph 9 hereof, and after looking at all the facts, I have come to the conclusion that all accuseds, except Accused No. 1, gave their police caution interview statements voluntarily and out of their own free will to the police. I therefore rule that accused No. 2, 3, and 4’s police caution interview statements are admissible evidence, and could be used in the trial proper, and its acceptance or otherwise, will be a matter for the assessors.

11. In giving my reasons abovementioned, I bear in mind what the Court of Appeal said in Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, where their Lordship said: “... We have of recent times said that in giving a decision after a trial within a trial there are good reasons for the Judge to express himself with an economy of words...”

7. With the exception of the then accused no. 1, Mr. Tuisamoa, the confessions were then tendered in evidence during the trial proper. In consequence the police witnesses as well as the then accused numbers 2, 3, and the present petitioner, again testified with regard to the issue as to whether or not their confessions had been voluntarily obtained. In his summing up to the assessors at the end of the trial, the learned judge said :
   

“29. The difficulty for the prosecution, in this case, is how to connect the four accuseds, to the above crimes. It was accepted that, none of the complainants ... identified any of the robbers, at the material time. This was because, at the time of the robbery, all the robbers wore masks. Likewise, it was accepted that, none of the stolen properties mentioned in count no. 1, were ever found on any of the accuseds. Ram’s stolen car was not found at any of the accuseds’ known address. So, it would appear that, there was no direct evidence to link any of the accuseds to the above crimes”.

30. To connect Accused No. 2, 3 and 4 to the above crimes, the prosecution relied on what is often termed, a “confession”. We will now discuss the accuseds’ alleged confessions.”

8. In para 31 to 37 of the summing up the learned Judge dealt with the contents of the confessions and in para 38 he proceeded to say:
   

“It could be seen from the above that, accused No. 2, 3, and 4 allegedly confessed to the police about the crimes, when they were caution interviewed. However, before you consider the above alleged confessions, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier or fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily that is he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them for or against the accused”.

9. In para 39 to 41, the Judge summarized the evidence with regard to voluntariness presented at the trial proper and in para 42 he then said:
   

42. “You will note that when Accused No. 2 and 4 first appeared in the Nasinu Magistrates Court on 14 August 2012, none of them made a formal complaint against the police to the Resident Magistrate. Accused No. 3, when he first appeared in the Sigatoka Magistrate Court on 31 August 2012, also did not complain against the police to the Resident Magistrate. When Accused No. 2 and 4 first appeared in the High Court on 28 August 2012, none of them complained to the court about police assaults. Nevertheless, the court ordered they be medically examined at CWM hospital. However, neither Accused no. 2 nor 4, produced the relevant medical reports of the examination, to verify their claims. Accused No. 3, on 14 September 2012, first appeared in the High Court. He also did not make any complaint against police. You have heard the evidence of the parties. Which version of events to accept, is entirely a matter for you”.

10. As to the contents of the petitioner’s interview statement, there are two aspects that featured prominently in his grounds of appeal. Firstly, it appears that in answer to questions 1 – 31 the petitioner denied any involvement in the alleged crimes. In fact, he gave an alibi for the period covering the date of the crime and nominated a number of potential witnesses who could support his alibi. In answer to question 32, however, he changed his tack completely by saying that his previous answers were untrue. Thereafter his rather detailed confession reflecting his involvement in the robbery ensued. The second aspect stems from the questions and answers 132 to 134 as recorded in the interview statement. They read as follows:-
    

“132 Q: Were you induced, threatened or false promises made to you whilst being interviewed which caused you to give answers in your record of interview?

A: Yes, I was threatened by some police officers.

133 Q: How were you threatened?

A: Verbally.

134. Q: Why were you threatened verbally?

A: I do not know.”

11. Against this background I can now turn to the petitioner’s grounds of appeal in their final form. The first and second grounds of appeal can be considered together. They read as follows: -
    

Ground 1

That there was a grave and substantial miscarriage of justice by reason of the trial judge failing to analyze or assess question and answer 134 of the caution statement where the petitioner complained of being threatened to confess.

Ground 2

That the Appellate Court erred in law in failing to independently assess the question and answer 134 of the caution statement and its impact on voluntariness.”

12. According to the petitioner’s written arguments in support of these grounds, the learned Judge ignored this aspect of the case ( to which I shall refer for the sake of brevity as Q134) at three stages of the proceedings, namely:
    
    • (a) when he gave his ruling and admissibility at the end of the trial within a trial;
      • (b) in his summing up to the assessors;
      • (c) in his own judgment.
        

If the learned Judge had proper regard to Q.134, so the petitioner argued, he and the assessors would have realized that it added a “further dimension” to the issue whether the caution statement was voluntarily made because, so he contended, it clearly supported the petitioner’s version.

13. As a point of departure, it seems to me that the petitioner’s argument substantially overstates the import and significance of the answer to Q.134. Firstly, it does not really support his evidence as to why he made the confession, namely that he was punched and beaten by the police. That is hardly supported by the rather mild general account of a verbal threat in Q.134. Secondly, it seems odd that the very policemen- who assaulted and threatened him, as averred by the petitioner- would be honest enough to record the answer to Q.134 if the answer reflected what really happened. Thirdly, Q.134 seems to be largely cancelled out by the answers to questions 135 and 136 that follows. They read;
    

“135. Q. Is this a true statement?

A. Yes, it is.

136. Q. Did you answer all questions on your own free will?

A. Yes”.

14. With regard to the first part of the objection, to the effect that the learned judge ignored question 134 when he made his ruling at the end of a trial within a trial, the petitioner relied in the main on paragraph 10 of the ruling. Although the learned Judge said in this paragraph that he considered the evidence of all the prosecution and defence witnesses, so the petitioner argued, he made no reference to Q.134. What the arguments loses sight of, I think, is that there is often a good explanation for the judge not giving full reasons for his ruling at the end of a trial within a trial. That is particularly so when the ruling turns exclusively on a credibility finding, as happened in this case. The explanation is formulated thus by Lord Mustill in Wallace and Fuller v Reginam [1997] 1 Crim. App. R 396: “For the Judge to expound in detail almost at the beginning of the trial his reasons for preferring one story to the other would wholly unbalance the proceedings. His reasons, which would be given in the presence of the public, the advocates and the defendants would inevitably leave their mark not only on the future conduct of the trial but also on its atmosphere.”
    
15. Once it is accepted, that the trial judge was not obliged to give full reasons for his ruling at the trial within a trial, logic dictates that no conclusion can be drawn from the fact that he did not mention Q.134 in terms. In the circumstances, the mere fact that the Judge did not mention Q.134 in his truncated reasons cannot justify the inference that he did not consider it. The same goes for the petitioner’s objection against the judgment of the Court of appeal. His complaint under this rubric is that the Court Of Appeal did not specifically deal with his ground 11 before that Court which was to the effect that the trial judge had “failed to consider question and answer 134 of the appellant’s caution interview” and that “the learned Judge had failed to give cogent reasons on why he did not accept the above mentioned evidence in this voire dire ruling.” The short answer to this objection, as I see it, is that since there is no validity in the objection to the Judge’s failure to specifically mention Q.134 in his voire dire ruling, the question whether the Appeal court did or did not deal with this point is of no consequence.
    
16. As to the Petitioner’s objection that the learned Judge had failed to refer to Q.134 in his summing up, I believe the answer is twofold. First, the assessors were probably aware of it because the petitioner had referred to it in cross examination of the police witnesses during the trial proper. Secondly, that since no summing up can be perfect, the mere fact that the Judge had not pertinently referred to it, did not render the summing up flawed. Whether or not it did would depend largely on the importance of that evidence. As to the importance of Q. 134, I have already indicated that it was not nearly as vital as the petitioner would want it to be. Essentially the same goes for the Judges failure to mention Q.134 in his own judgment. The mere fact that it did not specifically mention it that it, did not justify the inference that he disregarded it.
    
17. This is not the end of the Q.134 issue. This is so because the petitioner proceeded to introduce a number of further -mostly new- grounds under the guise that they were part of the Q. 134 issue, which they were not. First among these was his reliance on the evidence of the then accused number 1, Sitiveni Tuisamoa, and the evidence of Mr. Ravuama Kedraika during the trial within a trial under the pretext that Q.134 must be read in the context of this evidence. Mr. Tuisamoa’s evidence was that he was assaulted by the police and that a confession was beaten out of him in that way. This evidence, so the petitioner argued, was accepted by the trial judge in his ruling. In the circumstances, so the petitioner argued, it must be accepted that he was the victim of similar treatment by the police. Mr. Kedraika gave evidence that the petitioner was punched and threatened by the police in his presence.
    
18. The argument resting on the evidence of Mr. Tuisamoa is flawed in three respects. The first is that the learned judge did not accept Mr. Tuisamoa’s version. He found that it may reasonably possibly be true. The difference should be obvious. Secondly, it simply does not follow in logic that because Mr. Tuisamoa was assaulted by one policeman, the petitioner was probably assaulted by a different policeman. The third flaw in the argument also pertains to the evidence of Mr. Kedraika. It is that although it does not appear from the trial judge’s succinctly stated reasons at the end of the trial within a trial, the probabilities are that he regarded Mr. Tuisamoa’s evidence as irrelevant in the present context and that he rejected Mr. Kedraika’s evidence as untrue. Conversely stated, there is no reason to think that the learned Judge lost sight of this evidence when he made his ruling. That being so, the established principle is that a court of appeal can only interfere with the trial judge’s findings of fact if he is shown to have misdirected himself in some way. Since this has not been shown, the judge’s finding of fact must stand.
    
19. The second new ground which the petitioner’s sought to dress up as part of the Q.134 issue, derives from the change of tack in his interview statement between questions 31 and 32. While he maintained his innocence up to question 31, so the petitioner pointed out, he started confessing in answer to question 32. As pointed out by the petitioner it is common cause that question 31 ended the interview on 8 August 2012 while question 32 was the start of the interview on 10 August 2012. Likewise, it is common cause that while the petitioner was in police custody on 9 August 2012, he was not interviewed at all on that day.
    
20. Building on these facts, the petitioner argued that his case was on all fours on the facts with Hassan v Reginam [1963] FLR 110 where the confession was excluded from evidence. More particularly the petitioner sought to rely on the following dicta at 114 of the report:
    

“It is, we think, significant that until the return of Inspector Koya at 4.43 pm appellant had persistently maintained his innocence, but at that moment, without any reason, that appears from the evidence for the prosecution, he changed his mind completely and made the statement incriminating Gyan Singh and himself. In the absence of any other explanation it is possible, as is as he said in the judgment of Dixon, Evatt and McTiernan, JJ, in Cornelius v The King (1936) 55 CLR 235 at 252

‘that interrogation may be made the means or occasion of imposing upon a suspected person such a mental and physical strain for so long a time that any statement he is thus cause to make should be attributed not to his own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it.’”

21. It must be borne in mind however, that decisions in previous cases are considered for guidance on matters of law and principle and not as authority for findings of fact. Unless, of course, the facts of the two cases are so similar that the same reasoning must logically apply. Where facts are not so obviously similar I can think of no more sterile exercise then to measure the facts of one case against that of the other with the sole purpose of detecting the similarities and differences between the two. Suffice it therefore to say that in my view there is not even a close resemblance between the facts of this case and those of Hassan. In that case various factors led to the Court’s conclusion that the confession could not safely be relied upon. That much appears for instance from the statement at p.115 of the report that: “the cumulative effect of what we have referred to as the improprieties surrounding the making of the statement is such, however as to render it, in our opinion, doubtful whether the statement could be regarded as free and voluntarily in accordance with the requirements of the Common Law.”
    
22. In support of this argument, the petitioner also submitted that the prosecution provided no explanation as to why he suddenly decided to incriminate himself on 10 August while he maintained his innocence until the 8^th. What the Investigating Officer did say, however, when asked why he did not interview the petitioner on 9 August, was that he had arranged to investigate the petitioner’s alibi on that day. On the face of it there was therefore nothing sinister about the fact that the petitioner was not interviewed on that day. Other than that, the prosecution witnesses would hardly be able to explain why the petitioner has changed his stance on the 10^th. Hence I find no merit in this ground of appeal.
    
23. This brings me to grounds 3 and 4 which read as follows:
    

Ground 3 – That the learned Judge misdirected himself when he failed to give any direction to the assessors and to himself on the truth and weight of the caution statement.

Ground 4 – That the appellate court erred in failing to independently assess the trial judge’s failure to give any direction to the truth and weight of the caution statement in paragraph 38 of his summing up.

24. From the petitioner’s written argument, it appears that the nub of his objection on both these grounds is that the trial judge had failed to direct the assessors in his summing up that their function is not only to determine the voluntariness of his caution statement, but also the truth and weight thereof. In support of this argument, the petitioner referred to paragraph 38 of the judge’s summing up from which it is clear that the directions to the assessors were confined to the determination of voluntariness.
    
25. The petitioner is clearly right in his interpretation of paragraph 38. He is also right in saying that as a matter of law it was for the assessors to determine the truth and the weight of the confession and that as a general rule the learned Judge had to tell them that (see Noa Maya v The State; Criminal Petition no. CAV 009 of 2015). But as this court also said in Mohammed Arun Khan v The State; CAV 009 of 2013, (para 37) with reference to the Judges summing up, “there is no incantation to be read here. The required guidance need not be formulaic.”
    
26. The enquiry into whether the directions to the assessors were sufficient must therefore be fact specific. The weight to be afforded to the confession in this case, was clear. The detailed nature thereof would almost inevitably give rise to a conviction. As to the truth of the statement, there was never any suggestion by the petitioner that even if voluntarily made the statement may be untrue. In this light, I believe the direction given by the trial judge in paragraph 38 of his summing up was quite sufficient. The fact that there is no merit in the point must mean that any failure by the Appeal Court to consider it is neither here nor there.
    
27. This brings me to ground 5 which is in the following terms: “that there was a grave and substantial miscarriage of justice by reason of the trial judge failing to ensure a fair trial for the petitioner by not compelling the petitioner’s medical report which had crucial bearing on the voluntariness of the petitioner’s caution statement”.
    
28. On the appellant’s own admission, this ground is new. It therefore raises the question whether a grave injustice may occur if the petitioner is not allowed to rely on this new point. As I see it the answer to this question must be “no”. It stands to reason that a medical report would only assist the petitioner’s case if it reflected some injury which he could have sustained while in police custody. There is no suggestion that there is any medical report of this kind. On the contrary, the only evidence available indicates that there is probably not. I say that because when asked in cross examination why he did not complain to the Magistrate of the police assault, the petitioner said; “I did not complain to the Magistrate. I did not ask for a medical examination because I was not injured.”
    
29. Finally there is ground 6 which reads as follows: -
    

“The learned Judge in the voire dire erred in law in not taking into consideration the question whether the police have the power to extend the pre-charge period in police detention 48 hours after arrest to complete the caution interview and charge was wrongly admitted.”

30. The same point was raised in the ‘Lesi case’ and disposed of with admissible clarity in paragraphs 82 and 83 of the judgment which I shall not repeat. The conclusion appears to be captured in the last 4 sentences of para 83 which read as follows:
    

“The new constitution came into operation in 2013- well after the arrest of Lesi and Beeby [as well as the petitioner]-and although there was a similar provision in the previous constitution, the previous constitution had been abrogated in 2009. There was therefore no provision in force at the time of the kind relied on by Lesi and Beeby. There protection from arbitrary treatment in police custody was provided by the common law and the Judges’ Rules. Neither of them imposed a specific time limit of the kind in the Constitution.”

31. To these sentiments with which I respectfully agree, I venture to add the following: Even if an accused person is wrongfully detained after 48 hours, I do not believe that in itself would render a confession voluntarily obtained during the extended period inadmissible. In such circumstances the remedy of the accused person may be to seek his release from police custody or subsequently to sue the authorities for damages resulting from wrongful detention, but his remedy is not to have a confession voluntarily made, excluded from evidence. Of course, the extended period of detention may be a factor, in conjunction with others, in determining whether or not the confession was indeed voluntarily obtained. But that is another matter. Once the confession is held to have been voluntarily made, mere extended detention beyond 48 hours cannot serve as a basis to exclude it from evidence. That may result in punishing the police by letting a guilty person go unpunished.
    
32. In the result, I do not think that the petitioner’s proposed appeal has any prospect of success. It follows that in my view his application for leave to appeal to this Court against his conviction must be refused.
    

The Orders of the Court are:

1. The petitioner’s application for special leave to appeal against his conviction is dismissed.
   
2. The conviction and sentence imposed upon him by the High Court are affirmed.
   

Hon. Mr. Justice Anthony Gates

Judge of the Supreme Court

Hon. Mr. Justice Suresh Chandra

Judge of the Supreme Court

Hon. Mr. Justice Frederik Brand

Judge of the Supreme Court