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Public Prosecutor v Atuary - Ruling 1 [2007] VUSC 86; Criminal Case 26 of 2007 (11 September 2007)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 26 of 2007

PUBLIC PROSECUTOR

-v-

KENNETH ATUARY
SANO ATUARY

Coram: Judge Tuohy

Date of Hearing: 7th September 2007
Date of Decision: 7th September 2007

Counsels: Mr. Leon for Claimant
Mr. Hillary Toa for Defendants

RULING 1

1. The prosecution sought to lead evidence relating to admissions made by the accused Kenneth Atuary to Police Officer, Jack Dallas and also to produce a signed statement which included those admissions of guilt of the charge of burglary. At the end of Mr. Tallis’s evidence, I gave an oral ruling holding that evidence of the admissions and the statement was inadmissible because it had not been proven that the statement had been made voluntarily. Unfortunately, my reasons were not recorded at that time and I now record a summary of them.
   
2. I am satisfied from the evidence of Kalomtak that the accused Kenneth Atuary was assaulted by a Police Officer immediately before his statement was taken and signed. I am satisfied that it was officer Tallis who assaulted him. The evidence of Kalomtak was that the accused was slapped on a number of occasions on the face and that Kalomtak was in the room at the time this happened. There was no reason for him to fabricate this evidence. Indeed he did not directly name Mr. Tallis but it was reasonably clear that he was being evasive as to the identity of the Police Officer. He was however, in no doubt that there was an assault by a Police Officer at that time.
   
3. Indeed Mr. Tallis virtually admitted an assault in his evidence. He stated that while he could not recall assaulting the accused, he did not deny that it happened. He justified it on the basis that although he was a Police officer he was a human being, and that he could not help being angry, fed up and frustrated with Atuary who was continually coming into the Police station in relation to offending.
   
4. Having heard the evidence including that of Mr. Tallis I have no doubt that Atuary was assaulted immediately prior to the taking of the statement and I am therefore not satisfied that he gave it voluntarily. As I explained in the presence of Mr. Tallis, in those circumstances it is the duty of the Court to reject any evidence of any admission or confession made by an accused person. This is for two reasons. First, experience shows that admissions or confessions that have been given as a result of being assaulted by the police cannot be relied upon as truthful. Persons will do or say whatever is necessary to stop being beaten up. A second reason is that even if the confession or admission might be true, as a matter of policy the Court will not accept them as evidence. Otherwise, that would simply be an encouragement to the Police to obtain confessions by use of assault and other unacceptable methods. The Police must learn that the Courts will not accept any such statements and thus remove at least one of the incentives to assault persons in custody.
   
5. I told Mr. Tallis that while the Court understood his frustrations, he is a Police officer and cannot allow them to lead him to assaulting suspects and his frustration as a human being does not justify any such assaults. The accused also is a human being and should not be assaulted while in Police custody, in a country which aspires to live by the rule of law. Therefore, the statement is inadmissible as is any admission made by Mr. Atuary to the Police after the assault.
   

Dated at Port Vila, this 11th day of September, 2007

BY THE COURT

C.N. TUOHY
Judge