Public Prosecutor v Solo [1999] VUSC 19; Criminal Case No 023 of 1998 (14 April 1999)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Criminal Jurisdiction)

Criminal Case No.23 of 1998

File No.10 of 1998

PUBLIC PROSECUTOR

-VS-

VESENI SOLO

Coram: Mr Justice Oliver A Saksak

Mr William Falau, Clerk of Court

Counsel: Mr Willie Daniel, Prosecutor for Public Prosecutor

Mr Hillary Toa, Counsel for the Defendant

RULING ON VOIRE DIRE

Introduction

During the course of this trial the Defence sought to challenge the admissibility of the Defendant's statement which the Prosecution sought to admit into evidence. This statement taken by Police Officer and investigator Samson Sam is dated 9th March 1998. The statement bears two signatures of the Defendant firstly immediately after the statement of caution, indicating that the caution was administered to him and that he understood it. Secondly at the end of the Defendant's statement, indicating that the statement was read over back to him and he endorsing the contents thereof as correct. This statement contains certain admissions to the allegations of sexual intercourse with which the Defendant stands charge.

Defence Case

The Defence submit that the Defendant's statement is inadmissible as evidence on the basis of involuntariness, that it was obtained through force or duress or intimidation. The onus was on the Defendant to prove his allegations. To that effect the Defendant himself gave evidence during the Voir dire showing that on the night of his arrest in his village at Tassiriki South West Santo, two uniformed police officers and two Vanuatu Mobile Force uniformed officers arrested him. He testified that after his arrest he was handcuffed and taken into the truck. That he was not allowed to close the door of his house or pack his bag. That only his step-son Bune brought a T-shirt to him while he was in the truck and that is all he came with to the police station. That on arrival at the police station that same night he was asked to remove his shirt and then shut up in cell No.6. That he stayed the whole day without food until Wednesday when he was given breakfast. That he waited for his statement to be taken for about one week. That on the day the police officer took his statement he was given Vetono's statement to read. He said that he did not have intercourse with her but insisted that the police officer pressed upon him to admit that the allegation was true. He said he told the Officer that the Chiefs had already dealt with the matter. He said the police officer threatened him with a long term jail sentence. He said that the police officer was angry at him and talked harshly to him. He said that after all these done to him he was afraid and told the police officer that it was all true when in fact to him nothing was true. That after the police officer had written down his purported statement, he forced the Defendant to sign it and he did. Then he was put back into the cell. Finally he said that the duration of interview lasted about one hour.

Prosecution Case

The Prosecution called evidence in rebuttal from Ati Uti whose evidence goes to the credibility of the defendant, William Thomas and Ariel Maranda the two uniformed police officers who were present during the arrest, and Vetono, the victim herself. The evidence of the two police officers attempt to rebut the evidence of the Defendant that he was not allowed time to do anything during his arrest. Vetono's evidence goes to the credibility of the Defendant. Finally the Prosecution led evidence in rebuttal from Corporal Samson Sam, the Police Investigator who dealt with the case and who obtained the Defendant's statement. In short, the officer tells the Court that all of what the Defendant has said and/or alleged are not true. That he was administered the caution by explanation in Bislama. That the Defendant was not forced or threatened in any way. That the Defendant, was a 'smart' man during the interview. That he made admissions and that the statement was the Defendant's obtained own his own free-will and choice. That as an experienced officer for almost 15 years in the Police Force he had complied with normal police procedures in obtaining the Defendant's statement.

General Remarks

This case, perhaps not to the expectation of some is taking quite a long time but it is important because it is bringing into light certain procedures used during arrests of suspects, the way they are treated at the police station prior to taking their statements, the procedure of administrating cautions and statement taking.

After almost 19 years after independence and after numerous allegations of police brutalities, inhuman treatment and so on which have never been fully investigated, it is high time some review be done to straighten all this out to ensure that Police Officers continue to enjoy the respect and credit due to them as police officers upholding the law for the people.

Unanswered Questions

Having heard evidence in rebuttal particularly from the police officers I have some unanswered questions as follows:-

(1) Who of the four police officers actually arrested the Defendant? What did he actually do or say during the process?

(2) Why should the Defendant be handcuffed during his arrest? The Defendant here is physically handicapped in his right leg, a man of small built, in my opinion a harmless human creature. He did not resist the arrest, indeed he could not given his physical state and size amidst four uniformed well-built men at least of the two that came before the Court.

Section 4 of the Criminal Procedure Code Act CAP.136 provides for "ARREST HOW MADE". Subsection (3) reads:-

"Nothing in this section shall justify the use of greater force than is reasonable in the particular circumstances in which it is employed, or is necessary for the arrest."

The particular circumstances of the Defendant here is that he was not resistant to arrest but he was submissive. In that circumstance, was it justifiable for the police officers to use a much greater force, that is the use of the handcuff on the hands of the Defendant? Was that necessary for the arrest?

(3) Why has it become routine procedure to always detain a suspect before taking his statement? Why cannot his statement be taken immediately when he is taken into or the moment he arrives at the police station before he is stripped and locked up?

(4) Why should suspects be denied the necessities of life while in custody such as food, drink or right to see and receive attention from a doctor. Similarly the right to see or talk to a lawyer where the allegation against them are serious. Article 5(2) of the Constitution provides for protection of the law which includes among others:-

"(a) everyone charged with an offence shall have a fair hearing within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;

(b) everyone is presumed innocent until a court establishes his guilt according to law;

(c) everyone charged shall be informed promptly in a language he understands of the offence with which he is being charged......"

(5) Why has it is become routine procedure to take suspect's statement without witnesses being present? I got an answer for this question when I personally asked Corporal Sam whether any other officer was present with them during the interview with the Defendant on 9th March 1998. The answer the Court heard was that there was no-one present. When asked why, the Court was told it was because of lack of man-power. If that is so, why cannot a Court Officer, or the Sheriff or better still a chief be made to be involved? The requirement as evident from the Statement of Suspected Person Form is that a witness must be present with an Interpreter together with the Police Officer and the suspect during the interview. This was not complied with in this case and the question I ask is why not? Is it so that police officers could come before the court and lie and the Court would never know because there was no-one present to corroborate that evidence. It goes to the credibility of police officers.

(6) Why did the police officer not indicate the time when the interview with this defendant ended? The Defendant told the Court that it took about one hour. The police officer said it took 20 minutes. On the Statement Form he indicated the starting time to be 1000 hrs. He admitted in Court during his evidence that he failed to state the time of finish. He told the Court he was experienced in these cases and that he had done this many times. The Court asks why did he not being so experienced indicate the time of finish in this case? Is it so that he could lie to the Court about the time he kept the Defendant during the interview and the Court would believe him simply because of his experience. This goes to the credibility of the officer.

(7) Finally why did the Police Officer take the Defendant's statement on 9th March, 1998 some five days after he was remanded in custody on or about 4th March, 1998. In cross-examination the officer was asked why this was so and he answered saying it was because Tassiriki was a long way away and they needed time to carry out further investigations. When I personally asked the officer whether or not he took statements from any other person other than Enthy's, Atelui's and Vetono's on 2nd and 3rd March, 1998, the Officer said he did not. What further investigations therefore did he carry out after 4th March 1998? The answer is, none. Therefore the question is why wait until the 9th March 1998 to take the Defendant's statement? Was it to enable the Defendant to be held in custody to induce him to admit the allegations?

Issue

The issue for the Court to decide is whether the Defendant provided his statement under duress, by force or threats or intimidation? And if so, should the Court admit the statement into evidence?

Findings

Having considered the evidence in the light of the above questions, I find that if anyone's credibility is to be questioned by this Court, it has to be the credibility of the witnesses for the Prosecution. I find that the handcuffing of the Defendant was unnecessary use of force in his particular circumstances. That he was detained a whole day without food and without drink was a denial of the necessities of life; a denial of the right to life under Article 5(1)(a) of the Constitution. That there was no excuse for the Defendant to have to wait in custody from 4th to 9th March in order to be informed about the offence with which he was charged, that being a denial of right under Article 5(2)(c) of the Constitution. No investigations were being further carried out during that period and therefore it can only be inferred that the purpose and intent of having and keeping the Defendant in custody was to induce him to make a voluntary statement admitting the allegations against him.

I find that there was no actual threats imposed on the Defendant except for the handcuffing. But I am satisfied that all those other things done to him whilst in custody induced him into making a confessional statement. His mind was tainted with fear which may not have been manifested physically. Psychologically the Defendant was encouraged to make a voluntary statement which was not of his own free will and choice. He was intimidated and induced. Intimidate is defined to mean in one aspect "to strike fear into". Induce means "to bring in, to draw on, to prevail on, make, cause, encourse (to do something, to bring into being, to initiate or speed up artificially".

Conclusion and Ruling

For all those reasons I conclude that the Defendant was forced or intimidated into making a confession statement against his will. I accordingly rule that the Defendant's statement recorded on 9th March is inadmissible as evidence.

DATED at Luganville this 14th day of April, 1999.

BY THE COURT

OLIVER A SAKSAK

Judge