PUBLIC PROSE
-VS-
VESENI SOLO
Coram: Mr Je Oliver A
Saksak
Mr William Falau, Clerk of
Court
Counsel: Mr Willie Daniel,
Prosecutor for Public Proor
Mr Hillary Toa, Counsel for the
Defendant
RULING ON VOIRE DIRE<
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Introduction
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During the course of this trial
the Defencght to challenge the admissibility of the Defendant's
statement which the
Prosecution sought to admit into evidence. This
statement taken by Police Officer and investigator Samson Sam is dated 9th
March 1998. The statement bears two signatures of the Defendant firstly
immediately after the statement of caution, indicating
that the caution was
administered to him and that he understood it. Secondly at the end of the
Defendant's statement,
indicating that the statement was read over back to
him and he endorsing the contents thereof as correct. This statement
contains certain admissions to the allegations of sexual intercourse with
which the Defendant stands charge.
Defence Case
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The Defence s that the
Defendant's statement is inadmissible as evidence on the basis of
inv involuntariness, that it
was obtained through force or duress or
intimidation. The onus was on the Defendant to prove his allegations. To
that
effect the Defendant himself gave evidence during the Voir dire showing
that on the night of his arrest in his village at Tassiriki
South West
Santo, two uniformed police officers and two Vanuatu Mobile Force uniformed
officers arrested him. He testified
that after his arrest he was handcuffed
and taken into the truck. That he was not allowed to close the door of his
house
or pack his bag. That only his step-son Bune brought a T-shirt to him
while he was in the truck and that is all he came with
to the police
station. That on arrival at the police station that same night he was asked
to remove his shirt and then
shut up in cell No.6. That he stayed the whole
day without food until Wednesday when he was given breakfast. That he waited
for his statement to be taken for about one week. That on the day the police
officer took his statement he was given
Vetono's statement to read. He said
that he did not have intercourse with her but insisted that the police
officer pressed
upon him to admit that the allegation was true. He said he
told the Officer that the Chiefs had already dealt with the matter.
He said
the police officer threatened him with a long term jail sentence. He said
that the police officer was angry at
him and talked harshly to him. He said
that after all these done to him he was afraid and told the police officer
that
it was all true when in fact to him nothing was true. That after the
police officer had written down his purported statement,
he forced the
Defendant to sign it and he did. Then he was put back into the cell. Finally
he said that the duration
of interview lasted about one hour.
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Prosecution Case
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The Prosecution caevidence
in rebuttal from Ati Uti whose evidence goes to the credibility of the
defendant, William
Thomas and Ariel Maranda the two uniformed police
officers who were present during the arrest, and Vetono, the victim herself.
The evidence of the two police officers attempt to rebut the evidence of the
Defendant that he was not allowed time to
do anything during his arrest.
Vetono's evidence goes to the credibility of the Defendant. Finally the
Prosecution led
evidence in rebuttal from Corporal Samson Sam, the Police
Investigator who dealt with the case and who obtained the Defendant's
statement. In short, the officer tells the Court that all of what the
Defendant has said and/or alleged are not true.
That he was administered the
caution by explanation in Bislama. That the Defendant was not forced or
threatened in any
way. That the Defendant, was a 'smart' man during the
interview. That he made admissions and that the statement was the
Defendant's obtained own his own free-will and choice. That as an
experienced officer for almost 15 years in the Police
Force he had complied
with normal police procedures in obtaining the Defendant's statement.
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General Remarpan>
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 statements, the procedure of administrating cautions and statement
taking.
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After almost 1rs after
independence and after numerous allegations of police brutalities, inhuman
man
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.
Having heard evidence in
rebuttal particularly from the police officers I have some unanswered
questions as follows:-
(1) &nbssp;&nWsp; f o of the f he f police officers actualctually arrested the Defendant? What did he actually do or
say
during the process?
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(2) Why should the
Defe dant be handcuffed during his arrest? The Defendant here is physically
handicapped in his
right leg, a man of small built, in myion aless humaaturedid nsist the the arresarrest, int, indeed deed he cohe could nuld not
given his
physical state and size amidst four uniformed well-built men at least of the
two that came before the Court.
Section 4 of the Criminal
dure Code Act CAP.136 provides for "ARREST HOW HOW MADE". Subsection
(3) reads:-
"Nothing in this section
shall justify the use of greater force than is reasoneasonable in the particular
circumstances
in which it is employed, or is necessary for the arrest."
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The particular circumstance
the Defendant here is that he was not resistant to arto arrest but he was
submissive. In that
circumstance, was it justifiable for the police officers
to use a much greater force, that is the use of the handcuff on the
hands of
the Defendant? Was that necessary for the arrest?
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(3) & &nbsy hasy has it become
routiroutine procedure to always detain a suspect before taking his statement?
Why cannot
his statement ben imtely he isn into or the
moment hent he arrives at the police station beforeefore he i he is strs stripped
and locked up?
(4) Why should suspects
ts be denied the 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
talk lawyere the allegation agai against tnst them ahem are
serious. Article
5(2) of the Constitution provides for protection of the law which includes
among others:-
"(a) ;&nbseryone char charged wied with
an offence shall have a fair hearing within a reasonable time, by an
independent
and impartial court and be affor lawy it ierious
offence;
<
(c) p;&nssp; everyone char charged
shall be informed promptly in a language he understands of the offence with
which he is being charged......"
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(5) ;&nbssp; Wsp; Why hasy has it is become
ro routine 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 othficer was present with them
them during the interview
with the Defendant on 9th 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 as
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.
It goes to the credibility of
police officers.
(6) &nnbsp;; Wsp; Why didy did the police
officefficer not indicate the time when the interview with this defendant ended?
The Defendant told the Court that it took about one hour. The police officer
said it took 20 es. On the Statement Form
horm he indicated the starting
time to be 1000 hrs. He admitted in Court during his evidence that he failed
to state
the time of finish. He told the Court he was experienced in these
cases and that he had done this many times. The Court asks
why did he not
being so experienced indicate the time of finish in this case? Is it so that
he could lie to the Court
about the time he kept the Defendant during the
interview and the Court would believe him simply because of his experience.
This goes to the credibility of the officer.
Issue
The issue for the Court to
decide is whether the Defendant provided his statement under duress, by
force or threats or
intimidation? And if so, should the Court admit the
statement into evidence?
Findings
Having considered the evidence
in the light of the above questions, I find that if anyone's credibility is
to be questioned
by this Court, it has to be the credibility of the
witnesses for the Prosecution. I find that the handcuffing of the Defendant
was unnecessary use of force in his particular circumstances. That he was
detained a whole day without food and without
drink was a denial of the
necessities of life; a denial of the right to life under Article 5(1)(a) of
the Constitution.
That there was no excuse for the Defendant to have to wait
in custody from 4th to 9th March in order to be informed about the
offence
with which he was charged, that being a denial of right under Article
5(2)(c) of the Constitution. No investigations
were being further carried
out during that period and therefore it can only be inferred that the
purpose and intent of
having and keeping the Defendant in custody was to
induce him to make a voluntary statement admitting the allegations against
him.
I find that there was no actual
threats imposed on the Defendant exfor the handcuffing. But I ut I am
satisfied that all
those other things done to him whilst in custody induced
him into making a confessional statement. His mind was tainted with
fear
which may not have been manifested physically. Psychologically the Defendant
was encouraged to make a voluntary
statement which was not of his own free
will and choice. He was intimidated and induced. Intimidate is defined to
mean
in one aspect "to strike fear into". Induce means "to bring in, to draw
on, to prevail on, make, cause, encourse
(to do something, to bring into
being, to initiate or speed up artificially".
Conclusion and Ruling
For all those reasons I
conclude that the Defendant wased or intimidated into making a
confession statement ment against
his will. I accordingly rule that the
Defendant's statement recorded on 9th March is inadmissible as evidence.
DATED at Luganville this 14th
day of April, 1999./p>
BY THE COURT
OLIVER A K
Judge
