Points For Submission Paper To Law Reform Commission

POINTS FOR SUBMISSION PAPER TO LAW REFORM COMMISSION :

SOURCES OF POLICE POWERS IN FIJI

NATURE OF POLICE POWERS

GENERAL POWERS :

We recommend that in a Domestic Violence situation, the police should have the duty to arrest and remove the perpetrator from the situation to avoid any further violence.

DETENTION :

In situations whereby persons have been detained by police (particularly at weekends), we strongly recommend that the following points be considered:

a Night Court should be established or a Duty Magistrate on call at all times to deal with minor cases, in situations whereby persons have been detained by police for an unnecessary period of time(particularly at weekends).
a Duty Solicitor scheme to be established and based in major towns/cities, whereby solicitors are available to represent those persons detained by police (particularly at weekends or otherwise) and who have no access to legal representation.
Where there is a Domestic Violence situation, the release of the Perpetrator should be bound with the issuance of non-molestation and restraining orders.

INTERNAL INVESTIGATIONS :

We strongly recommend that the Police Force Internal Affairs unit :

be more accountable to those concerned, in their investigations of complaints against their officers by concerned parties.
that a responsible citizen nominated from the wider community must be included in the Unit.
a timeframe should be in place that determines how long an investigation can be carried out before any further action is taken by complainants.

Case Study :

A client had lodged an assault charge at a police station. However, when she called to follow up on her case, she was informed that the case had been dropped due to her making a withdrawal statement requesting to drop all charges relating to the assault case. Through queries and persistence on the part of client and FWCC, it was discovered that an officer at the station had forged her signature on the withdrawal statement. She reported the matter to the Internal Affairs Unit and was told that it would be dealt with internally. To date, there has been no response from the Unit regarding discipline of the officer concerned and in the meantime, he is still at work.

BAIL :

We strongly support the proposal for a Bail Act separate from the Criminal Procedure Code and the recommended 24 hours holding period.

TRAFFIC :

We support the recommendation of police powers to stop and search a vehicle.

ISSUES PAPER

ISSUE 1 : THE NATURE OF POLICE POWERS

  • We support the recommendation of the publication and distribution of pamphlets outlining police powers and what they apply to. We also support the enactment of one (1) Police Powers Act that will contain all police powers, currently provided for in separate acts.
  • However, we also propose that the following points should also be considered :

That appropriate notices in the three languages be placed in all stations, informing persons detained, accused or a complainant of their rights to communication, lodging of a complaint etc.

Case Study :

A client went to the Raiwaqa police station to lodge a complaint against her de facto partner who had assaulted her. The attending police officer at the station P/O Dharam Raj a.k.a. Tiger was very unco-operative in attending to the client’s complaint. Rather than treating her complaint in a professional manner, he began to make unnecessary and insulting remarks about the client’s physical appearance. Some of the comments made to client were :

she must have been a beautiful woman in her early days.
Seeing the acne on her face, he told her that this was the result of her regularly sucking on her partner’s penis.
He told client to leave her partner and that he (Dharam Raj) was willing to keep her.

The client lodged a complaint with the Internal Affairs Unit. The officer at the Unit referred her to another officer, who then rang the Raiwaqa police station and referred the case to the Station Officer.

There should some provision made for the use of audio or video tapes in the recording of interviews made at all stations.
That the Police Powers Act should be available at all stations and made available to persons upon request.

ISSUE 2 : THE CONSOLIDATION OF POLICE POWERS

  • We recommend the regular re-training of police officers in skills and knowledge of police powers that will better equip/assist them in their duties and obligations to the wider community.

Case Study :

In Pacific Harbour, an expatriate woman was badly beaten by her husband within their home. He left the house soon after the assault. She called up the officers at the Deuba Police Post to report the matter, requesting that he be charged for assault. Although badly bruised and beaten, she went to the Police Post to follow up on her complaint, only to find that her husband was already present. He was sitting with P/O Eroni, drinking yaqona.

When she queried Eroni as to what was happening to the complaint that she had lodged over the phone, he responded by telling the client to ‘shut up or be locked up’. No effort was made on the part of the officer to attend to the client’s needs. She was then made to sit in a police

vehicle for no reason, even though she insisted that she wanted to walk back to her villa, which was within distance. She was kept at the police post from 10.00pm – 4.30am, without reason. When the Station Officer at the Navua Police Station was contacted by FWCC, the response received was that because it was a weekend when the assault occurred, there weren’t enough staff to attend to her case. The client lodged a complaint with the Internal Affairs Unit and there has been some response to her complaint and a charge laid against her husband.

  • We support the recommendation for a proper division of powers within the police hierarchy to allow for a more effective and efficient operation, particularly in the accountability of police reporting.
  • We strongly recommend that all files of sexual offences cases be forwarded to the office of the Director of Public Prosecutions for legal representation by the DPP’s office. One major factor for this recommendation is that the police prosecutors lack the expertise to adequately prosecute such cases.

ISSUE 3 : THE POWER TO DEMAND THE PROVISION OF PERSONAL INFORMATION

  • We support the recommendation that police officers when operating in uniform or out of uniform, must provide some form of appropriate identification and their intentions to those concerned.

Case Study :

A police officer who had attended to a client’s case proceeded to show his interest in her through telephone calls relating to the case and calling around to where she lived. When he finally did reveal his true intentions to her, she told him frankly that she was not interested. He persisted to the extent that, during the Hibiscus Week, he called her up one afternoon and said that he was coming over to her place. He arrived in a police vehicle, dressed in civilian clothes, entered her house where he insisted that she go out with him. When she

refused him, he then proceeded to handcuff her. His reason for this was because she still refused to go out with him. They (both client and daughter) were shocked at his actions and began crying. The landlady (who was present and also knew the officer) demanded that he remove the handcuffs because both client and daughter were in a very emotional state. He then left the premises. When the client came in to the Centre, we queried the station where he was based at the time and were told that at the time of the incident, the officer concerned was off duty.

ISSUE 4 : MOVE ON POWER

  • We support the proposal for general police powers to move on however, we strongly recommend that these powers be confined to limited or particular circumstances.

Case Study :

A gay client while walking along the city streets one night, was confronted by police officers and questioned. During the course of the questioning, one of the officers started fondling his breast. When they had left, the client then proceeded to the Central Police Station to lodge a complaint against the officer. However, he was taken into the charge room by the attending officer and ordered to undress in the presence of other officers. Added to this unnecessary and humiliating factor, he was then ordered to squat in a variety of positions, where one of the uniformed officers present, ‘flashed’ himself and commented that ‘scenes like that, turned

him on’. He was then told to put his clothes back on and sent home with a warning – that they didn’t want to find him hanging/loitering around the streets at night.

ISSUE 5 : VOLUNTARY ATTENDANCE AT A POLICE STATION

  • Where a person/s is a volunteer to information and is not a detainee at any police station, it is the obligation of the senior officer to inform the volunteer of their right to liberty. This must be carried out prior to any form of questioning taking place.
  • We definitely support the recommendation that there be increased protection rights for juveniles and the intellectually disadvantaged in situations where they are detained by police for questioning etc. It must be compulsory for any police officer to inform parents of the detention to ensure that they or a nominee is in attendance prior to and during the interview session/s.

ISSUE 6 : PRE – TRIAL DETENTION

  • We support the recommendation for ‘safe-guards’ for persons under pre-trial detention as stated. A particular aspect is that relating to juveniles and those intellectually disadvantaged. This has been addressed in Issue 6.

ISSUE 7 : RIGHT TO SILENCE

  • We recommend that all persons accused or detained by police, must be informed of their rights to legal representation prior to any form of questioning by the police officer/s attending at the time.

ISSUE 9 : CONDITIONS OF POLICE INTERROGATION

  • We reiterate the earlier recommendations made relating to :

‘Police Powers – Detention’ (see Page 1) for a Duty Solicitor scheme to be established and available for all accused or detained person/s who have no access to legal representation during police questioning.
‘Nature of Police Powers – Issue 1’ recommending that provisions be made for audio and video taped recordings of interviews.
‘Voluntary Attendance at a Station – Issue 5’ relating to juvenile or intellectually disadvantaged persons or suspects.

ISSUE 12 : IDENTIFICATION

  • We propose the introduction of new identification techniques particularly for Sexual Assault cases. The police should have the power to extract samples from the scene of the crime – in this case, from the victim/s, in the form of hair, blood, saliva, semen and skin samples and do likewise with the accused for the purpose of cross-matching samples.
  • In the event where an accused person is acquitted, then the police must destroy all existing forms of identification relating to the person concerned.

ISSUE 13 : ELECTRONIC SURVEILLANCE

  • In the case of electronic surveillance equipment, a consideration must be given to the Human Rights of those concerned and their Right to Privacy. Should there be a need for such action, then the police should ensure that a warrant is issued prior to the carrying out of such actions.

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