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Public Prosecutor v Naicah [2003] VUSC 77; Criminal Case 013 & 014 of 2003 (22 May 2003)

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

Criminal Case No. 13 of 2003
Criminal Case No. 14 of 2003

PUBLIC PROSECUTOR

–v-

CHARLIE NAICAH
HARRY AMBUA
SIRI KALO
IAN WILLIE
DEVI ROBERT

RULING ON VOIR DIRE

The prosecution have sought to adduce the statements made to the police by the defendants Charlie Naicah, Harry Ambua, Siri Kalo and Ian Willie. The defence object to their admissibility saying they were not voluntary by reasons of threats and the atmosphere prevailing when they were made.

It is for the prosecution to show beyond reasonable doubt the statements were voluntary. It is not for the defendants to show they weren't. I consider each separately although the evidence overlaps.

The incidents, the subject of these charges, took place on Emae on 8th February. There were serious disturbances at Marae village and alleged arsons. The police and Vanuatu Mobile Force arrived on 9th and started an investigation. Interviews of suspects took place on 10th. It is accepted that people were kept in a big group and called forward one at a time to tell the police what happened. It is also accepted this all took place out of doors so the interviews were generally visible, if not audible.

Frazer Tambe has been a police officer for seven years. He says he talked to people. As a result of those talks he interviewed Naicah, Ambua, Kalo and Willie. He said he cautioned each properly, told them of their rights and "they all talked freely". He wrote down what they said, he read back what they said and they signed. He said there were "no threats or anything when I took the statements. There were no complaints, they just admitted it, no more".

He was cross-examined. It was suggested on 9th the police and particularly the VMF were very aggressive, people were slapped, splashed with water and threatened. The VMF had guns. There was an atmosphere of threat and fear created on 9th. As a result on 10th each defendant just signed where he was told to. No rights or consequences were explained. Nothing was read over to them. Tambe denied seeing or knowing of any of this.

I need not consider the statement of Ambua further. There is no officer's signature at the end, there is no signature of the defendant in the caution box at the beginning. Tambe said "I forgot". I find the statement of Ambua is not admissible.

Emile Bong was called. He is not listed in the committal bundle, nor is there any notice of additional evidence. I disregard his evidence.

Morris Charlie gave evidence. He didn't interview the defendants. He took statements from the complainants and witnesses. He saw the defendant interviews taking place. They were in view of everyone; there were no complaints. He said as far as he was concerned he saw no violence or threats by any officers on the 9th or the 10th. Only the VMF had guns, they didn’t conduct the interviews.

Charlie Naicah gave evidence. He said he had not seen guns before. The VMF and police were threatening and violent on the 9th. He saw this and was afraid. On 10th he says the position was the same. He said Tambe didn't threaten him. There was no caution or explanation, he just signed. The content is not true. It was written in front of him.

Siri Kalo gave evidence. He said there were threats and assaults, including on him, on 9th. When he was interviewed on 10th he was afraid. He just signed where he was told. He said there were no threats or violence towards him on 10th. He just signed without knowing what was in the statement.

Ian Willie gave evidence to the same effect. He said he was frightened. The guns of the VMF frightened him. The statement wasn't read and explained to him. He wasn't told his rights. He said there was a policeman or VMF with a gun very close by when he signed the statement. He said Tambe told him to tell the truth but did threaten him.

Chief Timothy gave evidence in support of the defendants, particularly concerning the behaviour of the police on 9th. He saw assaults on 10th, but not on the defendants.

I accept the evidence of Frazer Tambe. I find his approach to all matters to be mild and non-aggressive. He conducted interviews in full view of people. I do not accept he threatened anyone.

There was certainly great tension in and around Marae on 9th. It was beginning to settle by 10th, especially with the presence of the police and VMF. I do not accept the evidence of each of Naicah, Kalo and Willie. I have also considered the support to their evidence that might have been given by that of Ambua and Timothy.

I am satisfied the statements were voluntary. By the 10th matters were calm. The police had collected complainant and witness statements. They then interviewed suspects, including those three. I accept Tambe's evidence when he says he wrote down what they said and they knew what they were signing. I accept he cautioned them and explained their rights.

I find the statements of Naicah, Kalo and Willie were given voluntarily and are admissible.

Dated at Port Vila, this 22nd day of May 2003.

R. J. COVENTRY
Judge.