IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No HAC 14 of 2013
(voir dire proceedings)

STATE

V

MANOA NAIROGOROGO
JOSEFA RAUTO
KAMELI SAUDUADUA
ABARAMA SIRI
MARIKA KOROI

Counsel: Ms K. Semisi for the State
Mr. A. Rayawa for all accused.

Dates of hearing: 16, 18, 22 and 23 September 2014.
Date of Ruling: 26 September 2014

RULING
(Voir Dire)

All 5 accused object to the admissibility of records of interview conducted with each of them as follows:

i.	The first accused at Navua Police Station from 1935h on the 16th December 2012 to 1318h on 22 December 2012.

ii.	The second accused at Navua Police Station from 1827h on the 16th December 2012 to 1225h on the 17th December 2012.

iii.	The third accused at Navua Police Station from 1925h on the 16th December 2012 until 1057h on 17th December 2012.

iv.	The fourth accused at Navua Police Station from 1927h on the 16th December 2012 until 2100h on the 22nd December 2012.

v.	The fifth accused at Navua Police Station from 1945h on the 16th December 2012 until 1145h on the 17th December 2012.

2. All accused by their Counsel allege that they were assaulted and threatened by officers of the Navua Police Station from the time they were arrested, through their detention at the Police Station and throughout the time that they were being interviewed under caution. 

3. On being asked to supply more particularised objections the accused, through their Counsel, made the following allegations.

4. The first accused said he was dragged out of his home on arrest but made no further allegations of assault or threat at the Police Station.

The second accused alleges that he was kicked and punched in the mouth and all over his body by the officers and in the process he lost a tooth. The lights were turned off at the Police Station and he was further assaulted in the darkness. 

The third accused alleges he was kicked in the mouth and received a deep cut. He too alleges that he was further assaulted in the darkness when the lights were turned off at the Station. 

The fourth accused says he was kicked and punched in the mouth and was also assaulted in the darkness. 

The fifth accused alleges that he was kicked and punched in the mouth and in particular "by the jaw line" where he was "brutally injured".

5. The test for the admissibility of statements made by an accused to persons in authority is whether they were voluntarily obtained in the absence of oppression or unfairness or in breach of any constitutional rights. The burden of proving voluntariness, fairness, lack of oppression and observance of constitutional rightsrests on the Prosecution and all matters must be proved beyond reasonable doubt. I have kept these tests and that burden uppermost in my mind in deciding upon this issue. 

6. In their case for admissibility of the records of interview, the prosecution called 11 police witnesses, all of whom were working at the time out of the Navua Police Station. Each told the Court of the part they played in respect of the arrest and detention of these five accused. 

The Arrests

7. PW1((Torosi), PW2 (Neumi) and PW4(Makario) all told the Court of receiving a report of "trouble" at the Navua Club in the early hours of the 16th December 2012. They each attended the Club in the very early hours of the 16th where they found a semi-dressed lady in distress and four of the five accused. The 5thaccused (Mariko) fled the scene but was recaptured while the 2nd, 3rd, and 4thaccused were arrested at the Club. The 2ndaccused had passed out on a cement drive and had to be woken up. The four were taken by Police vehicle back to Navua Police Station for investigation. 

8. PW1, and PW3 (Leone) were two of the officers who acting on information went to the home of the 1staccused (Manoa) at 6am that day to arrest him. They both say that they spoke to the "landlord" who called Manoa out of the house. 

9. All of these arresting officers told the Court on oath that at the time of arrest and until they handed over the suspects at the Station they were informed of the reason for their arrest and that there were no assaults occasioned to any one of them. Nor did they see any injuries on the bodies of the suspects. None made a complaint of mal-treatment at the time or even subsequently. 

10. In respect of the 1staccused, he alleges that the arresting officers "dragged" him out of his bed, a claim denied by the officers who say that the "landlord" called him out and he came out of his own free will and went with them to the station quite willingly. 

The Interviews

11. PW5, Mataiasi was the officer who conducted the interview under caution with the 1st accused (Manoa). He saw no injuries on the suspect, nor did he assault him. There was no other officer with him at the time. It was conducted in the iTaukei dialect and was later translated into English. The suspect was given breaks and meals. On the 17th December (2012) the interview was suspended and the suspect was temporarily released from custody because of the approach of a severe cyclone. It was resumed and completed on December 22nd. The suspect was advised in full of his rights and PW5 never suggested any of the answers that have been attributed to the 1staccused. He had a co-operative attitude – there was no force or oppression either from him or from any other officer. The suspect gave his answers voluntarily and he was given an opportunity to read his interview. He made no complaints about his treatment to anybody at any time. 

12.In cross-examination he denied that he saw any injuries on the other 4 accused; he denied continuously threatening the 1staccused to admit the offence, and he denied fabricating the answers in the interview. 

13. PW6 (Iliesa) conducted the interview with the second accused (Josefa). He said that he knew the accused from casual meetings previously and as a result the chemistry between them was good. He was "OK' and they were laughing and joking. He did not see any injuries on the accused, nor did he assault him. He made no complaints. He gave him his rights and he (the officer) wrote the interview in his own hand. The accused provided the answers willingly and none of them was suggested by anybody else. He was given the record to read and he did read it and made no complaint.

14. In cross-examination he denied being involved in any attack or assault on this accused or any other of the suspects. He denied that the record of answers given was fabricated and denied that the 2ndaccused was forced to sign. 

15. PW7 (Basilio) interviewed the 5thaccused (Marika). He "appeared to be O.K.". He made no complaints nor did he have any visible injuries. He was not bleeding. The officer wrote the record of interview in his own hand. He was given the right to consult a lawyer. The interview was suspended because of an approaching cyclone and was resumed a few days later on the 22nd December. The officer never suggested any of the answers contained in the record, nor did he force, threaten or assault the accused to sign the record. The answers that he gave were given of his own free will. The 5thaccused had never at any time made any complaint to anybody. 

16. In cross-examination he denied that he was involved in causing serious injury to any of the accused and he denied fabricating the record of interview. 

17. PW7 (Simione) was instructed on the 16th December 2012 to interview the 4thaccused (Abarama) under caution. He saw no injuries on the accused at the time, nor did he make any complaint. It was in questions and answer from and the answers were given voluntarily by the accused. It was suspended when the cyclone approached and was resumed and completed on the 22nd December. He was afforded all his rights and none of the answers was suggested. The officer never threatened or forced the accused to answer the questions and he saw nobody else assault him. He read the record and signed it. At no time did he see any injuries on the accused nor did he make any complaint of assault or threat. 

18. This witness (PW7) was also the Investigating Officer of the case and as such was responsible for the management of the investigation. He told the Court that all suspects were interviewed at Navua Police Stationin the evening of the 16th December. They were released on the 17th because of a cyclone and were brought back to the station on the 22nd December. The 1st, 2nd, 3rd and 5thaccused were brought in by Police Officers and the 4thaccused was brought in by his mother.

19. In looking at the Station Diary he was able to say that on their return no complaint was made, including no complaint from the 4thaccused or his mother and they all appeared to be well. He was also able to say that in the next day or so, the 1staccused, 2ndaccused, 3rdaccused, 4thaccused, all had visits from relatives and not one of them made a complaint. 

20. On the 24th December they were all produced in the Navua Magistrates Court where they made no complaint. 

21. In cross-examination, PW7 denied being involved in, or seeing any assault. When shown medical reports of a suspect he noted that none of the parts needing to be filled in by the Police were filled and he had no knowledge of the provenance of the forms. He denied that any of the records of interview were fabricated. 

22. PW8(Jone) interviewed the 3rdaccused, Kameli. It was in question and answer form in the iTaukei dialect, at the request of 3rdaccused. He was given his rights and there was no force, assault or pressure on him to provide the answers. The accused made no complaint to anybody at any time. He read the record of interview and signed it. The answers PW8 says were given of his own free will. He saw no injuries on the 3rdaccused

23. PW 9 (Patrick), PW 10 (Richard) and PW11 (Temo) were called at the request of the defence. They gave evidence consistent with their colleagues and had nothing of further use to add to the prosecution case. 

The Defence Case

24. Each of the 5 accused had claimed as an objection to the admissibility of their records of interview in the main trial that they were "assaulted and threatened" and alleged that the answers were put to them and they were forced to say "yes" and to sign on the completed forms. 

25. If the issue was solely one of fabrication, then it is not a question of admissibility at all, but an issue to be decided by the assessors at trial.

26. However, given the allegations of assaults and threats there was certainly a need for a voir dire to determine the manner in which the records were generated and the Court considered that the very general objections were insufficient for the State to prepare for the hearing and more specific allegations were called for which were provided by Counsel for the Defence on the 12th September 2014. In this statement of further and better particulars each of the five accused has made and signed specific allegations of impropriety. I will refer to these individual personal allegations when dealing with the evidence of each accused.

27. Each accused gave evidence in his owndefence and each called a relative to give evidence on his behalf. 

28. I bear in mind the earlier test of the need for the prosecution to prove to me beyond reasonable doubt that these records were generated voluntarily without impropriety occasioned to any one of the suspects. And in addition I bear in mind the necessity to regard the case of each of the 5 accused separately and distinctly. 

The First Accused Manoa Nairogorogo ("MN")

29. In his specific written allegations MN claimed:

"I, Manoa Nairogorogo was at home….when to my surprise, police officers by the name of Torosi, Vakataki, Matai and Temo dragged me out of the house and took me to the Police Station for questioning. When I arrived at the police station I saw my friends, Kameli, Josefa, Abarama and Marika all bearing visible marks of injuries. I was only taken for questioning and did not receive any injuries from the Police Officers. That is all that I would like to say."
(Signed)

30. MN gave testimony under oath. He said that at about 6am on the 16th Leone dragged him from his bed to outside the house. He was wearing shorts and had a blanket wrapped around him. He saw a lot of officers with Leone. He was taken to Navua Station where he saw "all of them bleeding". The 3rdaccused was being punched in the mouth by Basilio. MN then said that he was assaulted and forced to sign. Temo assaulted him - both his hands were handcuffed and he was kicked in the ribs. He was taken to the bure and told to sign the statement. He was punched there in the bure but he got no injuries. 

31. In cross-examination by the State, he confirmed that it was only Leone who arrested him. His father who was present opened the bedroom door for Leone to come in and drag him out. 

32. MN called his father as his witness. He was DW10, Aminiasi Modrau. He said that on the morning of the arrest he was at home and the Police Officers came to arrest his son. He said that Officer Leone dragged him out of the room while the rest of the officers stood outside.

The second accused Josefa Rauto ("JR")

33. In his signed written grounds of objection JR claimed:

I, JR, was also assaulted by the Police Officers, where they kick and punch me in the mouth and all over my body where I lost a tooth. The officers are Temo and Leone. I was then taken to the Navua Police Station for further questioning. The Police Officers switched off the electricity then assaulted us with some other officers. That is all I would like to say."

34. JR gave sworn evidence. He said that on the 16th Dec '12 he was arrested by two officers. They pulled his collar and threw him into the Police vehicle. At the Navua Police Station they again pulled his collar and threw him inside the station. It was PC Temo. After that he was assaulted and interviewed. He was hit on the eyes and mouth. Temo used both hands to hit him and his eyes and mouth became swollen. There were about 9 to 10 officers at the station and they "were just waiting for me to come so they could assault me". PC Leone also assaulted me. He slapped me when I arrived at the station. No, He slapped me when I was released on the 17th December. When I was being interviewed I was forced by Temo who kept on punching me in the mouth. He continued by saying that when he was being interviewed there were a lot of officers present and he knew nothing about what was being asked and the Police made up all the answers. 

35. When he was released on the 17th, Leone slapped him on the face. He went straight back home and his father told him to go to the hospital. On Tuesday 18th December he went to the hospital and was examined by a lady Doctor and she filled in the report form. He was given the report form and he produced it in Court.

36. JR agreed in cross-examination that he had made no complaint to anybody about his treatment on arrest or at the station. He also agreed that the medical report is dated the 20th December, not the 18th, and that he had told the Doctor that he was punched on the chest and mouth and not the eyes and mouth as he claimed in his evidence in chief.

37. The 2ndaccusedcalled his elder brother, Simione Rauto to give evidence on his behalf. SR said that on the day that his brother was released from the Police Station (17th December) he took him to the Navua Hospital because he saw that he had a loose tooth and a swollen eye. He was unable to tell the Court which eye was swollen but thought it might be the left eye. He did not go into the Doctor's rooms with his brother. 

38. When challenged in cross-examination on the date of the medical report (20th), the brother said that he may have taken him the next morning after he was released. 

The Third Accused, KameliSauduadua ("KS")

39. In his signed written objections KS wrote:

 "I, KS, was kicked in the mouth by a Police Officer by the name of Torosi, where I received a deep cut. I was then taken together with my friends to the Navua Police Station to be questioned. The names of the police officers whom are known to us are: Vakataki, Leone, Meke, Richard, Patrick, Torosi, Asesela and Temo. The police officers switched off the electricity and assaulted us all over our body, where other officers were also involved."

40. KS gave sworn evidence in which he said that on the night he had passed out at the Club and was aroused by a policeman kicking him. He was pulled up and thrown into a police vehicle. At the Station he was assaulted by Matai. He denied raping anybody and "they" kept on punching me and forcing me. I was punched on my chest and on my mouth and when the interview was being recorded they kept on punching me. Torosi was hanging on to my collar and pushing me back and forward. It was about 3am and Leone turned the lights off and he was assaulted by about 10 officers. Hands were punching him on the chest, ribs and mouth. He could feel the punches but he didn't know who it was punching him. When he was interviewed in the afternoon he was dragged out of his cell by the collar and taken to the bure. They asked questions and he was forced to sign the paper. There were three officers and they forced him to sign by punching him. 

41. He admitted in cross-examination that he had never made a complaint to anybody at any time. 

42. KS called his mother, Seriani Radininoco, to give evidence on his behalf. She told the Court that on the day her son was released (17th) she was home when he came in. She saw that he was injured and he had a headache. In particular his tongue was injured - it was cut and bleeding. She wanted to make a complaint to the Police Station but they told her at the Station that she was not allowed to complain.

43. In cross-examination she said she did not take him to the hospital as the hospital was closed. She saw no injuries or bruises to his chest or ribs - she only saw his head, mouth and shoulder. 

The Fourth Accused Abarama Siri ("AS")

44. In his signed written objections to admissibility of his record, AS wrote:

"I, AS was kicked and punched in the mouth by police officers by the name of Makare, Temo, Neumi and Torosi. I was also taken to the Police Station with my friends JR, MK, MN and KS. The police officers switched off the electricity then assaulted us in the dark with other officers. That is all I would like to say."

45. AS gave sworn evidence in his defence. He said that he passed out at the Navua Club being drunk and then a Policeman came and put him in a vehicle and took him to the station. At the station "they" assaulted him. It was Temo. He was taken to a cell, they asked him questions, turned off the lights and assaulted him. He doesn't know who but when the lights came on again he saw Makari and Neumi. He was punched on the ribs. Later that afternoon he was taken to the bure for interview. He told the officer he knew nothing about the case but they kept punching him until he admitted the allegation. It was PC Basilio and one other. In looking at the record of interview AS said it is his signature but he was forced to sign. He was released on the 17th December and walked home. On the way he met his parents. As he was in pain and finding it very hard to walk, his parents took him to the Station to report the matter. They spoke to an iTaukei female officer but she did nothing because there was a cyclone coming. She did give them a Police medical report which they took to the Navua Hospital. He was seen by a female Doctor.

46. AS called his father, Antonio Matatuilagi, as his witness . The father said he was at home when Abarama came back from the Station. He was bending down with his hands touching his chest. It was about 3pm on the 17th December. He was vomiting blood and couldn't eat. He went then to the Police station to "get a report" but they wouldn't give it to him. He took him to the hospital on the same day. 

47. In cross-examination, the father said that the chest and spitting blood were the only injuries his son had. When it was put to him that the medical report was generated 3 days later on the 20th and not the 17th he said that maybe it was because they went back on the 20th for an x-ray.

The Fifth Accused, MarikaKoroi ("MK")

48. In his signed written grounds of objection, MK wrote:

I, MK, was kicked and punched by the Police Officers by the name of Leone and Makare who punched me in the jaw line where I was brutally injured. That is all I would like to say."

49. MK gave evidence in his defence on oath. He said that on the 16th December he was walking on the road when a Police Vehicle stopped, they told him to get in and they took him to the Navua Station for questioning. It was about 1 to 2am. At the station he was told to sit and he was assaulted. It was Temo and Makare blaming him. Makare punched his jaw. He also punched his chest and ribs. He was standing at the back and kicked him with safety boots on. Leone scolded him, slapped him and told him to agree to the allegation. When being interviewed he kept saying that he knew nothing about the alleged rape. One of the officers was assaulting him and telling him to agree what the Police had already written in the record. They punch me on the shoulder and on the forehead (and witness pointed to his left neck). They forced him to sign the record of interview.

50. In his defence, MK called his sister, Vilorina Kunadei. She said that on the day that he was released from the Station she saw injuries on his jaw and on his lips. He was not able to eat his food. He was not able to lie down. He was in deep pain.

51. In cross-examination she admitted that the medical report submitted stated that there were no injuries found and that the history related to the Doctor by MK was only that he was punched twice on the side of his neck and that there was no mention of any injury to his jaw. 

The Medical reports

52. The second and fourth accused (JR and AS) both relied on medical reports to support their evidence of assault. JR was examined at Navua Medical Centre on the 21stDecember, 5 days after the arrest and recording of the interview and AS was examined, by the same Doctor on the 20th December 4 days after the event. 

53. Most unfortunately the Doctor in question is no longer in Fiji and was not able to give evidence to validate the Reports or to speak to them. For that reason and with the lapse of time between the examination and the alleged assaults; a time that the suspects were at large and where the reports state that the injuries are "recent", I discount the reports. In any event neither report assists either JR or AS because the history related by them in the reports runs counter to the evidence they gave to this Court.

Analysis

54. The evidence of all eleven Police Officers was reliable and consistent. They all denied that any improprieties were extended to any one of these suspects and they gave evidence of appropriate treatment such as rest periods, meal breaks etc. They even released the suspects on the 17th with the approach of a cyclone. The Station Diary which was exhibited is also consistent with their evidence showing visits of relatives of the suspects and not showing that any complaint of assault was made. I find that I can rely on the Police evidence. 

55. In contrast to the Prosecution evidence I find that the evidence of all 5 of the accused and all 5 of their relatives is unreliable. While I am well aware that the accused do not have to prove anything to me, they do not tell me anything which makes me doubt the consistency and reliability of the Police evidence.

56. I have considered all of the evidence with great care, and especially the evidence of the accused and their witnesses and I would make the following observations. Not one of the accused in his testimony gave evidence that was consistent with his initial objections to the admissibility of his record. MN the 1staccused made no allegation against the Police in his written objection but in his evidence told the Court that he was assaulted and punched in the mouth. JR, the 2ndaccused, gave evidence of being punched in the eyes, a matter that he had never earlier alluded to when making known his objections. KS the third accused used said in his objections that he was kicked in the mouth and received a deep cut. He made no mention of this at all in his evidence. AS the 4thaccused said in his written objections that he was punched in the mouth yet in his evidence he claimed to have been punched in the ribs. MK, the 5thaccused used said that he was brutally injured on the jawline when making his objections, yet in his evidence he never mentioned his jaw but spoke of being kicked in the ribs and on the chest. 

57. None of the accused gave me any confidence in their complaints after hearing their testimony. 

58. I also find that not one of the "family" witnesses called by the suspects, (one family member for each suspect) was reliable or independent. They all contradicted themselves and all appeared to be giving evidence that was "coached". Not only was their own evidence inconsistent, it was at times inconsistent with the evidence given by the relative they were giving evidence on behalf of. 

59. There is nothing from any suspect separately or any witness for any suspect which leads me to doubt the consistency of the Police evidence. Nor do I find that there has been any oppression or breach of Constitutional rights.

 60. As a result I find that each of these 5 records of interview made by each of the 5 accused has been generated voluntarily and they can therefore be admitted in evidence in trial on the general issue.

P.K. Madigan
Judge

At Suva 
26 September 2014.