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State v Navamocea [2005] FJHC 690; HAC0020.2003L (9 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0020 OF 2003L

STATE

v.

VILIMONI NAVAMOCEA

Mr. M. Korovou with Mr. S. Qica for the State
Accused in Person

EXTEMPORE RULING ON TRIAL WITHIN TRIAL

The accused objects to the admission of his charge statement made to the police on the 24^th September 2003.

The grounds of objection appeared to be that the statement was made after the accused was assaulted and that the confession contained in it was not voluntarily made.

The grounds upon which a confessional statement can be excluded 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 to 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 something which “tends to sap and has sapped that freewill which must exist before the 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 would be fair and just to include such evidence.

In R v Mallinson [1992] NZCA 163; (1993) 1 NZLR 528 (referred to with approval by the Chief Justice of Fiji in Mul Chand Labasa High Court Case November 1999) the New Zealand Court of Appeal held that the onus was on the prosecution to show firstly that the suspect had been told of his right to consult a lawyer and secondly that the suspect understood the substance of the right and that the exercise of the right would have been implemented if he chose to exercise it. However evidence that the right had been advised, normally led to an inference that the suspect understood the nature of the right.

In that sense Mallinson was not told of his right until an hour after his arrest, but before he was interviewed. His interview was excluded, and the jury directed to acquit. On a case stated to the Court of Appeal decided that the right to consult a lawyer, and the right to be informed of that right, arose on arrest, and the right must be communicated immediately after arrest and before “the legitimate interests of the person who is arrested are jeopardized”. The police have a duty to inform the suspect of this right but no particular formula is required as long as the suspect knows he may exercise the right before questioning begins.

The Court of Appeal held that where he had been told of the right to a lawyer before questioning began, the proper inference should have been that he understood that the rights were exercisable immediately and before questioning began. Thus the trial judge should not have excluded the statements, and a new trial was ordered.

Here, of course, the issue is not the caution interview but the confession made and the charge statement and the charge statement varies the requisite question that:

“Q.3: Do you wish to consult your solicitor?

A: I will talk to him tomorrow.

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

“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 the principles governing the exclusion require the asking of the following questions:

1. Was the charge statement given voluntarily?

2. Was it 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 Constitution, is there anything in the evidence to show that the prima facie exclusion rule should not apply?
   

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

Evidence has been given on behalf of the prosecution by the Charging Officer, DC 2099 Apete Visako and also by the Witnessing Officer, Cpl 727 Senitiki Talebula. Both of these officers give evidence that the accused was not assaulted by either of them or by anybody else in their presence and that the charge statement was made voluntarily by the accused. They also give evidence that the accused having been given the right to consult a solicitor and of the charge having been put to him and being understood.

The accused asked no questions to Constable 2099 Apete and he also asked no questions to Cpl 727 Senitiki Talebula the witnessing officer.

The prosecution also called PC 1898 Arvind Singh who in the company of another was requested to arrest the suspect on the 20^th September 2003. He gave evidence that no assault or threat took place in his presence. The accused cross-examined him and put to him that on his arrest he was assaulted by him at the back of the police vehicle which was denied. It was also put to him that he suggested purchased of 50 cents worth of chillies to be applied to the accused which was denied. It was put to him that there were additional police officers present. He said he recalled one other officer, officer Rafaele and he were the only officers in the police vehicle that there are other officers at the home of the suspect.

The prosecution then called the Investigating Officer, Detective Inspector Timoci Narova. He denied that he at any time assaulted, threatened or held any inducement out to the accused. The accused cross-examined as to the number of people present on the 24^th September 2003 he was charged. He said that he was present and that he had no active role of the charging of the accused. It was put to him that there was another Indian officer there which he said he could not recollect. It was put to him that he told the accused to sign the charge statement as the victim had died, he denied that and said he took no active role in the charging of the accused. It was also put to him that he was the senior officer who was telling junior officers what to do which he denied. There were 2 other officers and the civilian present at the time and he said he did not recall.

The prosecution also called the Divisional Crime Officer/Western, ASP Vijay Singh, who also denied having assaulted, threatened or held any inducement to the accused with respect to the making of charge statement. He says that he was present at Nadi Police Station on the 23^rd September 2003 and acknowledged that he had given instructions for the accused to be charged a crime of murder following the death of Paras Ram. He denied that he was present at the time the accused was charged or had any wrong in the charge of the accused. He denied in cross-examination having told the accused to plead guilty or make confession statement contained in the charge statement.

The accused gave sworn evidence with respect to the admissibility of the charge statement, in that evidence he says that Acting Superintendent Singh and the Crime Officer/Nadi, Inspector Timoci, told him to make the admissions. He says they told him to sign that Paras Ram died and to shorten the process and that is why he signed. He says in his evidence that he had made no admission to the police when being interviewed. He was cross-examined by State Counsel and most relevantly it was put to him that he was not assaulted on the 24^th September 2003 he says he was that the police officers assaulted him on his lower body. He says that he was assaulted by a civilian following his arrest being taken to the police station and I noted that was sometime prior to the time of which he was charged.

The accused also tenders in his case a report of medical officer following an examination carried out on the 1^st October 2003 where the doctor sets forth in a history as related by the patient and I quote:

“Was assaulted by a Fijian police officer named Rafaele and an Indian police officer named Chand on 22/9/03.”

Not surprisingly no injuries were evident at the time of the examination.

The record of the Magistrates Court indicates that the accused was before the Magistrates Court on the 25^th September 2003 and was on that day represented by counsel and indicated to the Court that he was assaulted by police on the Saturday and nominated PC Rafaele and PC Chand and also at the police station by a civilian on the 25^th September 2003. It would appear that the allegation relates to the time of his arrest. He was granted bail by the Magistrates Court on the 25^th September and he acknowledges today that he was in fact released on bail on that day. No medical examination took place notwithstanding his release on bail.

I have difficulty in accepting the accused’s version of events in the light of consistent evidence given by all police officers but even if it were that the accused was assaulted by police officers or others at the time of his arrest, it is necessary then to question whether that assault if it occurred impacted sufficiently on the confession in the charge statement on the 24^th September 2003 which commenced at 1620 hours on that day and if the impact is of sufficient degree as to make that statement inadmissible.

Whilst reference is made to an allegation of the acquisition of chillies, there is no evidence before me that the chillies were used or applied in any way. The only specific evidence of an assault is the allegation of punching to the lower body.

The authorities to which I have referred require a commonsense approach to the case. Those authorities also require there to be an overbearing and that overbearing must exist at the time the statement is being made.

The burden rests with the State to prove beyond reasonable doubt that the confessions were voluntarily made, there was a lack of oppression and there was no breach of the Constitution or the Judges Rules.

As I have indicated I have difficulty in accepting the accused’s evidence and accordingly I do accept the evidence of the police officers and in particular, the interviewing officer as to the events occurred on the 24^th September 2003. I reiterate that even if I am of the opinion that an assault took place at the time of arrest then I am of the opinion that such assault in itself did not lead and would not lead to have any impression in the course of the charging of the accused which I have said commenced on the 1620 hours on the 24^th September 2003. I am satisfied therefore beyond reasonable doubt that the charge statement was voluntarily made in circumstances of fairness to the accused and accordingly admissions contained in the charge statement are admissible.

JOHN CONNORS
JUDGE

At Lautoka
9 November 2005