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State v Niume [2011] FJHC 620; HAC010.2010 (22 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINALCASE NO: HAC 010 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. EPARAMA NUME
2. JOVECI NAIKA
ACCUSED PERSONS

Counsel: Mr. M. Maitava for the Prosecution
Ms L. Lagilevu for the 1st Accused
Mr. T. Muloilagi for the 2nd Accused

Date of Hearing: 15 – 19 August 2011
Date of Ruling: 22 August 2011

RULING ON VOIR DIRE

[1] The 1st accused Eparama Nume is charged with two [2] counts of murder. He challenges the admissibility of his caution interview statement to the Police dated 9/1/2010, 10/1/2010 and 11/1/2010 on the ground of police assault.

[2] The 2nd accused Joveci Naika is charged with 2 counts of murder and with one count of unlawful use of a motor vehicle and he challenges his caution interview statement to the Police dated 8/1/2010, 9/1/2010, 10/1/2010 and 11/1/2010 on the grounds of Police assault.

[3] The burden of proving that the statements were made voluntarily and without oppression is on the Prosecution. Oppression is anything that undermines or weakens the exercise of free will (R v Priestly [1865] 51 Cr. App. R). The burden is also on the prosecution to prove that the statements were obtained without any breaches of the rights of the accused and if there were any breaches, there was no resulting prejudice to the accused. The standard of proof is that of beyond reasonable doubt.

[4] The State called 9 witnesses to give evidence. First witness was Cpl 2222 Simione Taufa. He had been in the team of Police Officers who arrested the 1st Accused, Eparama Nume. His evidence was that on acting on information received they had gone to the Sakoca Settlement to arrest the 1st Accused. The 1st Accused had been sleeping inside the house. After the 1st Accused identified himself as Eparama, he had informed the 1st accused the reason for his arrest. The 1st Accused had admitted everything about the murder of the couple freely, he said. Further the 1st Accused had agreed to show the murder weapon and they have escorted him to Wainibuku and from there to the Valelevu Police Station. He said that they did not assault nor threatened the 1st Accused.

[5] In cross examination he said that he did not go inside the house but Eparama came outside. He said that the 1st Accused was handcuffed. He denied any of the officers assaulting 1st Accused. He denied threatening the 1st Accused that he would be taken to Colo-i-Suva and would be stabbed if he did not tell the truth.

[6] He denied stopping at Mobile Police Station, Nasinu and assaulting the 1st Accused. He denied forcing the 1st Accused to pick a knife from the kitchen at Wainibuku. He denied leading Apenisa Lino to the vehicle. However he said that after recovering the knife, on questioning they recovered a laptop which belonged to the deceased from a neighbouring house at Wainibuku.

[7] Answering questions from Counsel for the 2nd Accused the witness said that he was at the Police Station when the 2nd Accused was brought to the Station. He denied assaulting the 2nd Accused.

[8] The next witness was D/Sgt 196 Apimeleki Digitaki. He had been also a member of the team that arrested the 1st Accused. He said that the 1st Accused was sleeping inside the house and when he woke up he came wearing a Nike canvas shoes. The 1st Accused had admitted that the canvas shoes he was wearing was from the house of the victims murdered.

[9] He said the police officers never assaulted the 1st Accused. After recovering the knife he said that at Wainibuku the owner of the house was taken for questioning. He had led them to the place where the clothes of Eparama were burnt. He also testified as to how the laptop was recovered.

[10] In cross examination he denied assaulting the 1st Accused. He
denied threatening him. He denied assaulting the 1st Accused at the Nasinu Mobile Police Station.

[11] Answering questions by the Counsel for the 2nd Accused he denied assaulting the 2nd Accused at Valelevu Police Station.

[12] The next witness was D/Cpl Viliame Saumaisue. He too had been a member of the Police team who arrested the 1st Accused. He said that when they reached the house he called Eparama out of the house. Eparama had come out when Sgt Api went inside and called him, he said. The 1st Accused had been wearing a Nike shoes. Sgt Api had told the 1st Accused, the reasons for his arrest. He also testified that they recovered the knife. They were taken to the place where the clothes of Eparama were burnt. He said that none of the police officers assaulted or threatened the 1st Accused.

[13] D/Constable 3169 Paula gave evidence next. He had been a member of the Police team who arrested the 1st Accused. He had been in the vehicle while other 3 Police officers went to the house and came with the 1st Accused. He said that Eparama was never assaulted or threatened by the Police Officers.

[14] In cross examination he said that the same team of police officers arrested the 2nd Accused on 8/1/2010. He denied that SGT Apimeleki assaulted the 2nd Accused at the Police Station. However, the witness again said that the 2nd Accused was arrested before the 1st Accused.

[15] Next witness was Vijay Nair. He is a Justice of Peace and on the request of the police, he had visited Valelevu Police Station and met the accused persons on 11/1/2010. He said that he met all the suspects including the 1st and 2nd Accused persons and that they did not make any complaint to him.

[14] On questioning, the Accused 1 and 2 had informed him that the Police have treated them fairly and that they were given food and water on time. He said that he cannot remember the names of the suspects but he confirmed that he met the 1st and 2nd accused persons.

[15] Witness Dr. James Danford had examined the 1st Accused on 11/1/2010. The Police Officers have brought him to be examined and he said that the 1st Accused did not have any injuries. Further the 1st Accused had not made any complaint to him. Medical examination form was submitted. The 1st Accused had not made any complaint of assault.

[16] Dr. Elvina Orgbit had examined the 2nd Accused and submitted the medical examination form as evidence. She had examined the 2nd Accused and stated that the 2nd accused had no injuries. Further the 2nd Accused had not made any complaints. She said she examined the 2nd accused in the presence of Police Officers.

[17] The police officer D/Sgt 1671 Falemaka Marika recorded the caution interview statement of 1st Accused giving evidence, submitted the said statement in Court. He denied any kind of assault on the 2nd Accused before and during the caution interview. The 1st accused had not made any complaint of assault to him. After interview he had handed over the 1st Accused to D/Inspector Salesh.

[18] The last witness for the prosecution was D/Cpl 2105 Senitiki who recorded the caution interview statement of the 2nd Accused. Constable Josua had been the witnessing officer. He had given the 2nd accused his rights. The 2nd accused had not made any complaint of assault. He denied Sgt Apimeleki coming and assaulting the 2nd accused during the interview.

[19] He denied that the 2nd accused was interviewed for the period of 4 days to make the 2nd accused exhausted. He said that the accused cannot be kept in Police custody for long and the rights of the accused also has to be considered. He said that the time he interviewed the 2nd accused was all accounted for.

[20] The first accused giving evidence said that on 9/1/2010 he had been sleeping in Tuiloma's house. By 11.30 am he had woken up and came out of the house to go to the toilet. He said that he was not wearing any shoes. As he came out of the house the police officers had asked him for his name and had handcuffed him.

[21] Cpl Taufa and Viliame had been there. He said Sgt Alipate threatened him and jabbed him on his ribs. They had asked him for the clothes and the knife. He was taken to the vehicle and then to the Mobile Police Station. Whilst in the vehicle they threatened him to tell the truth and if not then they would take him to Colo-i-Suva and stab him to death.

[22] At Nasinu Mobile Police Station they had covered his face with his singlet and punched him for about 10-15 minutes. They then took him to Wainibuku and asked for 500,000 dollars from him. He had denied having the money.

[23] Then they took him to the place where he had told them he kept the knife. It was in Apenisa's house. Apenisa had not been there. He had picked a knife from the house as he was frightened. They have picked Apenisa from the farm. He said that he brought the laptop from a neighbour where he had exchanged it to two mobile phones. He had handed over the laptop to Police.

[24] He was interviewed at the Police Station in Valelevu. After the interview he was put back to the cell, he said. He said the Justice of Peace visited him and asked him whether the food served was okay. He said that the Justice of Peace never took him to a separate room. Police Officers had been there with him.

[25] He said that he did not know that he was a Justice of Peace and then he could complain to him. At the time he was examined by the doctor, the police officers were present he said. He had not complained to the interviewing officer about the assault and he was afraid of the police officers being present.

[26] However, he said he cannot recall arresting officers being present at the time of the interview. He admitted that a lawyer appeared for him in the Magistrate's Court. He said that he told the lawyer about the assault. He also said that he could not talk to the Magistrate. The lawyer was talking for him. He admitted that he did not complain to the Justice of Peace, Doctor, Interviewing Officer or the Magistrate about the assault.

[27] The 2nd Accused also gave sworn evidence. He was arrested on 8/1/2010. He said that he was not told of the reason for arrest but told the Court that they were taking him for an investigation as he was working in the Kura Factory.

[28] Police have first arrested Sorovali and Sorovali had pointed at him. At that time they had been sleeping at the same house. They were taken to the Police Station. He said he was given breakfast first before 12 noon. All arresting officers had started questioning him about the case. When he said he did not know, Sgt Apimeleki and Taufa punched him. He had been sitting on the floor and he was assaulted for about 10 minutes he said. On the first day he had been interviewed from 8.00 pm to 8.55pm. During the first day of interview he was not threatened or assaulted he said.

[29] He was not given a mattress or pillow or a blanket to sleep he said. The second day after lunch he had been taken to a room upstairs and questioned again. Police had asked him about Eparama. When he said that he did not know, they punched him. He further said that on the second day during the caution interview Sgt Apimeleki assaulted him. He had warned him to tell the same story as Sorovali. Apimeleki also assaulted him on the third day.

[30] He said that he had never seen the Justice of Peace who gave evidence, before. During the examination by the doctor, he said that when questioned by the doctor he told him about the pain. The Police Officers had asked him whether it is still paining or okay. The two Police Officers had said that is nothing. He said that he did not make any complaint to the Magistrate as he did not know the procedure, as it was his first time in Court.

Analysis

[31] I carefully considered the evidence adduced by the prosecution and the two accused persons.

[32] I find that the first accused was informed of the allegation against him at the time of arrest. All four officers in the arresting team testified that the 1st accused was never assaulted or threatened. The 1st accused said that he was assaulted when he was arrested as well as at the Mobile Police Station, Nasinu. He further said that he was threatened when was being transported to Wainibuku and then to Valelevu Police Station. At Nasinu Mobile Police Station he was assaulted for about 15 minutes, he said. However no injuries were found when he was taken for medical examination before the doctor. When the doctor who examined the first accused gave evidence in cross examination, the defence tried to show the Court that slight swelling would disappear within two days. However the evidence of the 1st accused was that he was blindfolded and assaulted for about 15 minutes.

[33] The 1st accused said that he did not complain to the doctor or the J.P. as the police officers were present. Further he said that he did not know that he was a J.P. and that he could complain to him. However when he was produced before the Magistrate, he was represented by a counsel. According to the Magistrate's court record the counsel who appeared has made submissions on bail for both 1st and the 2nd accused, but no complain was made or even mentioned of any kind of assault or threat to the accused in police custody.

[34] Having considered the evidence and also the demeanour of the witnesses and the allegations made by the defence, I find that the 1st accused was not assaulted, threatened, or oppressed in Police custody. I also find that the prosecution has proved beyond reasonable doubt that the 1st accused made the admission in the caution interview statement voluntarily, without oppression and that his rights were not violated by the Police. Therefore I rule that that the caution interview statement made by the 1st accused is admissible in evidence.

[35] The counsel who appeared for the 2nd accused objected to the caution interview statement being admitted in evidence stating that the 2nd accused was a juvenile at that time and that his rights were not given to him as a juvenile. The counsel specifically stated and that is on record, that it was the only ground they urge objecting to the admissibility of the caution interview statement of the 2nd accused. This Court gave a ruling on the issue on 13th July 2011, ruling that the caution interview statement be admitted in evidence. Thereafter the voir dire inquiry was fixed only to decide on the admissibility of the confession of the 1st accused.

[36] On the date of the inquiry the counsel Ms B. Malimali was allowed to withdraw as counsel for the 2nd accused on her application and Mr. T. Muloilagi appeared for the accused. Mr. Muloilagi then informed the Court that he had got instructions from the 2nd accused which was different to Ms Malimali, and that the 2nd accused now challenges the admissibility of his caution interview statement on the ground of police assault. Although this was a last minute application, the 2nd accused was allowed to challenge the admissibility of his alleged confession to police.

[37] Evidence of the 2nd accused was that he was assaulted by Sgt. Apimeliki and Taufa after arrest. On the first day of interview he was not assaulted. However on the second and third days he was assaulted, he said. He has not complained to the doctor as the police officers were present. When he was produced before the Magistrate he had not complained. He says that as it was the first time in court he did not know the procedures. In the Magistrates Court, he was represented by a counsel. Doctor who examined him has not seen any injuries. As I said before the counsel who appeared in the High Court for the 2nd accused on 7th July 2011 informed the Court that the only ground for challenging the admissibility of the confession was not giving the rights of a juvenile. Having heard the evidence and the demeanour of the witnesses, I am satisfied that the 2nd accused was not threatened or assaulted by the police officers.

[38] The 2nd accused was arrested on the 8th January 2010 and was under arrest till 11th January 2011 for more than 90 hours. The allegation made by the defence is that he was kept in custody without completing the statement to see that his statement is taken according to the events given by the 3rd accused in the 3rd accused statement. No acceptable explanation was given by the interviewing officer as to why his interview continued for 4 days.

Whilst keeping the 2nd accused in custody, on the 9th and 10th January his interview had commenced only in the afternoon. No explanation was given by the interviewing officer for not recording in the morning. The 2nd accused has given the statement on the 9th disclosing his presence at the scene of crime. On the afternoon of the 10th he has given a statement further incriminating him, while he was continuously kept in custody for the third day for more than 48 hours. Although he was not assaulted, taking into consideration the long period of police custody I find that the further interview on 9th January 2010 onwards was oppressive.

[39] Therefore I rule that the statement of the 2nd accused made on the 8th and 9th January 2010 are admissible in evidence. I rule that the caution interview statement the 2nd accused made on the 10th and the 11th January 2010 were oppressive and inadmissible in evidence.

Dated at Suva this 22nd day of August 2011.

..................................
Priyantha Fernando
Judge