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State v Rawaidranu [2005] FJHC 318; HAC0042.2004L (3 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE No. HAC0042 OF 2004L

STATE

v

NACANIELI RAWAIDRANU

Date of Hearing: 3 October 2005
Date of Ruling: 3 October 2005

Mr. K. Tunidau with Mr. S. Qica for the State
Mr. H.A. Shah for the Accused

EXTEMPORE RULING
ON A TRIAL WITHIN A TRIAL

The accused objects to the admission of his interview by the police, that was conducted on the 6^th and 7^th December 2004, into evidence.

The grounds of objection are that, the accused was assaulted and threatened prior to the commencement of the record of the interview and subsequent to his arrest and he was further threatened in the course of the record of interview and the charge statement.

The grounds upon which a confessional statement can be excluded from the evidence, are either that it is not voluntarily made or that it was obtained unfairly and in breach of the rights given to persons in police custody under section 27 of the Constitution of the Fiji Islands.

In relation to voluntariness, breaches of the Judges’ Rules are relevant but do not determine what is voluntary. The real question under principle (e) under the preamble of the Judges’ Rules is whether the statement is voluntary “in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority or by oppression”.

Oppression is said to be something which “tends to sap and has sapped that free will which must exist before a confession is voluntary”.

A failure to comply with section 27 of the Constitution will result in the exclusion of evidence obtained from a person in custody unless the Court is of the view that it would be fair and just to include such evidence.

In R v Butcher [1991] NZCA 135; (1992) 2 NZLR 257, Cooke P said at p. 266:

“As indicated in Kirifi, there may be circumstances in a particular case where, despite some degree of transgression of the rights, it is fair and right to admit a confession in evidence...prima facie however, a violation of the rights should result in the ruling out of evidence obtained thereby. The prosecution should bear the onus of satisfying the court that there is good reason for admitting the evidence despite the violation.”

In The Queen v Thompson [1893] UKLawRpKQB 74; (1893) 2 Q.B. 12 Cave J said at p. 18:

“I would add that for my part I always suspect these confessions, which I suppose to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; - a desire which vanishes as soon as he appears in a court of justice.”

In Cleland v The Queen 151 CLR at p. 15 Murphy J said:

“The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, of it, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confession as suspect for involuntariness (even if this was not asserted by the accused because he denies making it).

If the accused within custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspicion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement.”

Also in Cleland Deane J at p. 18 said:

“At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made ... if the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him.”

It follows therefore that the principles governing exclusion require the asking of the following questions:

1. Were the interview/charge statements given voluntarily?

2. Were they given in oppressive or unfair circumstances?

3. Was there a breach of the rights under section 27 of the Constitution?

4. If there was a constitutional breach, is there anything in the evidence to show that the prima facie exclusion rule should not apply?
   

In considering all of these questions, the onus is on the prosecution to prove beyond reasonable doubt, voluntariness, lack of oppression, no breach of the Constitution and, if there has been a breach, to show that the breach was inconsequential and did not result in unfairness or oppression.

I turn now to the evidence.

Evidence has been given to the Court by PC 1846 Samisoni Naqica, the arresting officer, who by coincidence is the uncle of the accused. He gave evidence of his investigation and having located the accused near the Tavua bridge and having arrested him, cautioned him and taken him to the Police Station. He took him to the Crime Office where he says “the accused made a confession to me”.

He says that he appropriately cautioned the accused and he denies having assaulted or threatened the accused in anyway and denies that any assault or threats were made or carried out by any other person in his presence. He subsequently handed the accused over. The next witness, Detective Constable 1274 Epeli Senitiri, commenced a record of interview of the accused and with a witnessing officer being present. He says that there were no visible injuries on the accused at that time. The accused made no complaint and that no threats or assaults were made or carried out on the accused in his presence.

He gives evidence in Court that during the record of interview, the accused was attended on more than one occasion by his wife, by his father, by his elder brother and by his Turaga-ni-koro and he spoke by telephone to a lawyer.

He says that at the end of the caution interview, it was read to the accused and he signed it. No complaints were made to him by the accused about the manner in which the record of interview was conducted or anything that occurred during or prior to the caution interview.

The witnessing officer, Corporal 340 Delai Tikoilomaloma also gives evidence to the Court that there were no assaults and there were no threats and that the accused was appropriately cautioned.

The record of interview was conducted with rests for food and sleeping and contact with other people and over a period of approximately 24 hours.

Corporal 2180 Peni Tuivaga charged the accused and gave evidence of having charged the accused in the Fijian language having cautioned him. He made the observation that the accused looked well and made no complaint, no threats made to him and that no assault whatsoever occurred in the witnesses presence. He says that Sergeant 1308 Elesio Serutabua was also present when the charge statement was made. He denies that the accused had a right black eye and he denies seeing any other injuries on the accused and says that the accused signed the charge statement voluntarily.

Umesh Prasad a Justice of the Peace was brought to the Tavua Police Station and what might be described as a measure to avoid or minimize allegations of this type being made. Umesh Prasad gives evidence that he having spoken with the accused, with the assistance of the court officer from Tavua Court to translate for him. He says that the accused said in the course of their discussion that he had been treated properly by the police in all respects but that he had been threatened. The form of the threat and the name of the officer was not given. He says that he saw no injuries on the accused at the time of their discussion and the accused was wearing T-shirt and that there was nothing visible on his face and he did not see the accused having a black right eye.

Sulueti Sovilea, the Assistant Court Officer of Tavua gave evidence of being a translator referred to by the Justice of the Peace and confirmed that the accused had told her and she had translated and that he had no objection in terms of meals and refreshments and he was properly looked after and he said he had been threatened by the police. She then said that the name of the officer has not been stated and she said she saw no injuries on the accused.

Dr. Maung Maung Mon gave evidence of having examined the accused on the 7^th December 2004 at 1410pm in the presence of two Fijian nurses and no police offices. He says that the accused was calm and gave evidence of his blood pressure being normal and his general state of health. He says there were no obvious injuries detected and there were no complaints made by the accused. He specifically says he had no visible black eye and indicated that in response to questions from the Court that if he the accused had suffered black eye the previous day he would expect it to be visible at he time of the examination.

The accused gave evidence of the allegations that he makes of the threats and the assaults and he says he informed the doctor of the assaults. He says he was assaulted after arrest and prior to the record of interview commencement by A/Cpl 1846 Samisoni Naciqa. He says he was assaulted on the stomach and the right face. He says that Samisoni and other officer were blaming him for the death of Ram Phal. He says he signed the charge statement and record of interview as he knew he could come to Court and challenge it.

It became apparent in cross-examination that he been less than truthful with respect to his education level and with respect to his prior convictions and knowledge of the Court process. His wife, Lesi Vuki, gave evidence of having visited her husband in the Tavua Police Station and that he asked her to forgive

him for having come to the Police Station to interview and he did not know anything about the death of the deceased. He also asked her to get him lawyer and said to her she says that the police rang and said that the police assault him and forced to give information. She says that his right eye was swollen.

The caution interview shows that she visited the accused on at least 2 occasions during the course of the interview at about 1703 hours on the 6^th December 2004 and again at 1851 hours of that same day.

There was certainly a large number of people who came into contact with the accused whilst he was in custody and whilst the caution interview was being conducted. From my observation a larger than normal number of people came into contact with the accused during the caution interview, which as I have said included the father of the accused, the wife of the accused, brother of the accused and the Turaga-ni-koro and of course telephone access with a lawyer.

The authorities to which I have referred required commonsense approach to the facts. As I have said the burden rests with the State to prove beyond reasonable doubt that the confession was voluntarily made that there was a lack of oppression and that there was no breach of the Constitution or of the Judges’ Rules.

Assessing the evidence in this matter requires the consideration and an acceptance of either the evidence given by the police officers or that given by the accused and his wife together of course with the statement made by the accused and Justice of Peace that he was threatened but it must be noted that he made no suggestion to the Justice of Peace that he had been assaulted.

I place weight on the evidence of the doctor and of course of the Justice of the Peace, both the independent people placed into the system for the purpose of making determinations relevant to application of this type. I have difficulty accepting the accused as being a credible witness in the light of the inconsistencies in his evidence with respect to his education and his prior record.

I am therefore of the opinion that there was indeed no assault to the face as described by the accused and that any other assault, if it took place, was inconsequential and further that any threat as referred to by the accused did not take place as there is a complete lack of particularity of such a threat and it is mere assertion. I form this view for the reasons stated in addition as I have said that a large number of people to whom the accused had contact in the course of record of interview and the lack of complaint that was made to any of them.

I am therefore satisfied beyond reasonable doubt that the caution interview and charge statement were voluntarily made in circumstances of fairness to the accused. Accordingly, I am of the opinion of the admissions contained in those documents are admissible.

John Connors
JUDGE

At Lautoka
3 October 2005