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Public Prosecutor v Ulas [2000] VUSC 25; Criminal Case No 101 of 2000 (25 May 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.101 of 2000

SC No. 01 of 2000

PUBLIC PROSECUTOR

-V-

TIMOTHY ULAS

Coram: Mr Justice Oliver A. Saksak

Ms Cynthia Thomas - Clerk

Inspector Wilson, Duddley Garae for Public Prosecutor

Mr Hillary Toa for the Defendant

ORAL JUDGMENT 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 was taken by Police Officer Sergeant George Alick on 28 January 2000. This statement bears the names and signatures which the Police Officer claims belong to the defendant. The defendant denies writing his names and putting his signatures on the statement forms. The statement contains admissions of assault, force and sexual intercourse.

Judgement

On 24^th May 2000 in open Court I delivered an oral judgement in the following words:

"King Solomon in the Bible was faced with what seemed to be a simple case but a difficult one in the sense that there were no witnesses. Two woman appeared before him both claiming ownership of one child. In the absence of witnesses for both parties the King decided to take the middle line by deciding to cut up the baby into half. So it is with this case. The defendant now alleges that what is contained in his purported statement was said because he was under fear and that it was not made in his own free will. The Police Officer said that there was no force used against the defendant at the time of the statement being taken and that he had made it voluntarily by writing his names and signatures confirming that the caution was administered to him.

The defendant alleged that he surrendered himself to the Police on 26^th January 2000 with a chief for fear that the Police might beat him up. He was detained in cell No.6 without food that day until 27^th January in the evening when he was given dry bread to eat. He alleged that some members of the special force involved with Operation Cleanim North had subjected him to abuse by pulling down his trousers and staring at his private parts. He alleged that one of the members had wanted to hit his head with a handcuff only to be stopped by another. The Prosecutions called only one Police officer to give evidence in rebuttal. He denied every allegation made by the defendant. No other police officer was present during the interview of the defendant.

I refer to Criminal Case No. 23 of 1998 Public Prosecutor -v- Veseni Solo the judgement dated 14^th April 1999. At page 2 under Heading "General Remarks" it reads:

"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 statement, 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.

Under the heading "Unanswered Questions" at paragraphs:

(3) Why has it become routined 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 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 with a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious case (emphasis added)……..

(5) Why has it become routined 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 9^th 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 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 …."

These remarks are important and the Court is concerned that these must be brought to the attention of the appropriate authorities in the Force so that something can be done about these procedures to improve them.

In the circumstances, while I am not prepared to accept that everything said by the defendant is the truth, I am not prepared to accept that everything in his statement should be admissible for reasons that the defendant was kept for almost two days without food, that he was subjected to humiliation and abuse by the Police, and the fact that his statement was taken during the time when the Operation was in its full force. I am prepared to accept that the defendant's mind was tainted with fear so that he made some confessions or admissions which he otherwise would not have made.

Therefore as I indicated earlier I am going to take the middle line here and admit only certain part of the statement which seems to be consistent with what the defendant has given on oath in the witness box.

I therefore rule that the following parts of the defendant's statement are in-admissible -

(a) That he made his statement on his free will - page 1.

(b) That he forced and threatened the victim to have sex with her - page 1.

(c) That he forced the girl to remove her clothes - page 2.

(d) That he states that after all this he knew he had done wrong but that it was too late - page 3.

(e) That he made his statement on his own free will.

The remainder of the statement is admissible and shall be tendered."

DATED at Luganville this 25^th day of May, 2000.

BY THE COURT

OLIVER A. SAKSAK

Judge