At the conclusion of the Inquest it was obvious and apparent that in conducting Operations Klinap the VMF breached the Constitution of Vanuatu, in particular Article 5, the Police Act [CAP 105], in particular section 4 (1) and (2), the United Nations Declaration of Human Rights, and the rule of law.
In addition to individuals in their own evidence to having broken the law it is clear that there are major systemic and group culture (not custom culture) problems within the VMF. The following recommendations are therefore made.
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| Deceased John Bule |
Recommendation 1: Homicide and Assault Inquiries
The Inquest heard evidence that established that a fit and healthy young man was taken to the VMF barracks and approximately 30 minutes later he was taken out as a brutally battered, badly bleeding person who died shortly after in hospital. Even more shocking is that the evidence indicates that throughout that 30 minutes he was in the continuous care and control of VMF officers, a branch of the Police in this country sworn to uphold the law. No evidence was heard that indicated that any lawful force was used upon the Deceased. Evidence was heard of unlawful force being inflicted upon the Deceased, including a confession of a VMF officer.
The people of this country are entitled to expect law enforcement agencies to uphold the law and not seen to be in breach of the law. No nation can appear to have one law for the police and another for the rest of the population. That is entirely unacceptable and not recognized by any person with an understanding of the rule of law.
A homicide inquiry is necessary to:-
a) Identify and prosecute those persons responsible for the death of the Deceased
b) To emphasize that the rule of law operates in Vanuatu
c) To deliver justice to the family and friends of the Deceased, and to the public.
d) To restore public confidence in the police agencies in this country
e) To absolve those members of the VPF and VMF who had no part to play in the death of the Deceased.
Assault inquiries are necessary to identify and prosecute those persons responsible who ordered, and those persons who carried out the assaults upon the recaptured detainees.
It is recommended that homicide and assault inquiries are carried out by properly trained and independent police officers, who are properly resourced and not subject to any undue influence.
Recommendation 2: Location of Paul Shem
It is ominous that within two days of the recapture of the Deceased, all police efforts to find Paul Shem immediately ceased. The purpose of Operation Klinap was to recapture all escaped detainees and that has not happened. If Paul Shem is running free the police have a duty to locate and arrest him. If the police know that cannot be done for any reason, the public is entitled to know that reason.
It is recommended that an independent inquiry be undertaken to ascertain:
a) Who ordered Operation Klinap to stop before all escaped detainees were recaptured?
b) Why was Operation Klinap stopped before achieving its objection of capturing all escaped detainees?
c) Why has no effort been made by the VMF or VPF to find Paul Shem since 1st April, 2009?
d) What knowledge do the VMF or VPF have as to Paul Shem’s whereabouts, and whether it is known if he is alive or dead?
e) Is an inquest into the suspected death of Paul Shem necessary?
The formation of the inquiry would need to be in accordance with the Commissions of Inquiry Act [CAP 85] with the power to require the attendance of witnesses, to take evidence on oath, and to inspect police records.
Recommendation 3: Perjury Inquiries
Many of the witnesses before the Inquest were less than frank in their evidence to the Inquest. Some however went beyond confusion or a lack of frankness. The police statements and oral evidence before the Inquest by some witnesses were so contradictory as to lead to the conclusion that at least some parts of their evidence were lies.
The Commissioner of Police presented documentary evidence to the Inquest, and on viewing of that document [Exhibit 10] and hearing evidence of a later witness it has the appearance of being concocted evidence.
Commander Vira denied on oath giving orders to VMF officers to beat or maim recaptured escapees. A number of VMF witnesses say that he did. One went so far as to say that they were to break both legs, including at least one knee cap, one arm and hand of the recaptured detainees. Hospital records bear out that a number of recaptured detainees were brought to hospital for treatment for these types of injuries, by members of the VMF.
A number of other witnesses also gave evidence that was contradictory to their own earlier evidence.
It is recommended that the Public Prosecutor examine all available evidence with a view to assessing whether there are reasonable prospects of securing perjury convictions.
Recommendation 4: Electronic recording of police interviews
The claim was repeatedly made by various members of the VMF that their purpose in transporting the Deceased from his place of capture (at Malapoa) to the Cook Barracks was so as to conduct a legitimate interrogation to obtain intelligence as to the whereabouts of other escapees and information about crimes the Deceased may have committed while unlawfully at large.
Despite these persistent claims, however, there was no convincing evidence that any legitimate interrogation took place at the Cook Barracks. Lt Roy Seule maintained that Kenneth Siro was tasked with making a handwritten record of the questions asked and answers given during the interrogation, yet Siron denied ever being inside the interrogation room, let alone as a scribe recording a legitimate interview. The interrogation was said to have lasted for at least 30 minutes, yet very little information of any real substance was said to have been given by the Deceased. What is beyond dispute is the fact that the Deceased sustained critical injuries while inside the interrogation room on the afternoon of his death.
The electronic recording of interviews by law enforcement officers is common place through out the world and has been for at least the last 20 years. The passage of legislation in jurisdictions which compel the electronic recording of interviews with suspects was to overcome (as far as possible) controversies over whether a confession was made and, if so, whether it was voluntary.
The introduction of electronic recording of interviews in other jurisdictions has resulted in much better behaviour by the police and better processes being observed. The use of video and audio tapes has helped promote the rule of law and heightened public confidence in the police whereas previously challenges to police misbehavior in interviewing suspects contributed to bringing criminal justice systems into disrepute.
Clearly, the introduction of mandatory electronic recording of interviews by police with suspects would have resource implications. In this digital age, it may well be that the authorities would not use video tape to record interviews, but install digital recording devices and minimize expense.
The costs associate with the introduction of electronic recording of interviews should be weighed against the benefits that it would bring in the promotion of the rule of law, the improvement in police behaviour and interviewing techniques and the reduction in challenges to disputed confessions at trial. It may well be that the net cost is not prohibitive.
It is a matter for parliament to decide whether it is now time for Vanuatu to introduce mandatory electronic recording of interviews by investigating officials with suspects (even if initially only in Port Vila and Luganville). It is therefore recommended that:
a) Parliament consider passing amendments to the Criminal Procedure Code [CAP 136] (or, alternatively, an Evidence Act) to provide for the electronic recording of interviews by police with suspects; or
b) The issue be examined in greater depth by the Law Reform Commission when it is established and operational.
Recommendations 5: Interrogation/Interview facilities within the detention centre.
This Inquest has highlighted the dangers associated with conducting interrogations in inappropriate venues. A suspect is vulnerable during any interrogation, particularly if unaccompanied by a lawyer, friend, relative or independent observer.
Notwithstanding that the Vanuatu Government is about to construct a new correctional facility to replace the existing centres in Port Vila, no correctional centre can be 100% escape proof. It must be assumed that occasional escapes from lawful custody may occur again in the future. In that event a recaptured detainee should be returned immediately to custody at the correctional centre. Should investigators wish to interrogate or interview the recaptured detainee such interviews or interrogations should take place in an appropriate, dedicated interrogation or interview room within the correctional centre, a room preferably fitted with electronic recording equipment (see comments above). A dedicated interview room could also be utilized by legal counsel when interviewing clients on remand and awaiting trial or sentence. Dedicated interrogation or interview rooms should also be set up on police stations wherever possible.
Recommendation 6: A coronial unit within the VPF
It is obvious that the “investigation” conducted by the Vanuatu Police Force into the circumstances surrounding the death of John Bule was woefully inadequate and no real or genuine effort was made to comply with the terms of reference. Regrettably, this lack of effort appears to comply with the wishes of the investigation was being undertaken, but then concealed the report from the public so they would never know of its lack of rigour and its inadequacies. The use of officers who were not based in Port Vila should have increased the likelihood that a thorough, unbiased, professional investigation would have ensued. Unfortunately, the investigation was anything but thorough, and was biased so as to ensure that blame was not sheeted home to any serving member of the VMF and was completely unprofessional.
In a police culture in which hierarchy is important, not just in the formal chain of command, but also in custom, it is difficult for those tasked with investigating serious matters (such as suspicious deaths in custody) to fulfil their responsibilities when having to report their findings to superiors from the same organization whose members may have been liable for the acts which caused the death.
In this particular matter, the hierarchy and officers of the VMF closed ranks and engaged in obfuscation. The Inquest was hampered by the fact that the VPF and VMF withheld information from the Coroner until the Inquest was convened to take evidence. It is surprising that no bried of evidence had been prepared and submitted to the Coroner and Counsel to Assist prior to the commencement of the Inquest…
Recommendation 7: Review of legislation governing the holding of Inquests
The legislative basis governing the coronial process is scattered within the Criminal Procedure Code [CAP 136] and the Commissions of Inquiry Act [CAP 85] and is not comprehensive in setting out the coronial processes. It would be appropriate for the parliament to consider passing legislation dedicated to the coronial process and to govern the practices and procedures to be adopted during Inquests.
Consideration should be given as to formalizing the width available to Coroners to make recommendations to eliminate, or reduce the likelihood of, or repetitions of acts which led to a sudden death.
Consideration should be given as to whether a Coroner should be empowered to commit a person to stand trial for criminal offences based on evidence given at an Inquest, where the Coroner concludes that the evidence establishes a prima facie case.
It is recommended that, these issues would be appropriate matters for further consideration by the Law Reform Commission.
Recommendation 8: Record keeping within VPF , VMF and Correctional Services
Evidence led at the inquest established that record keeping by the VPF, the VMF and the Department of Correctional Services was totally inadequate.
It is noted that:
• The VMF did not have accurate, contemporaneous records confirming which officers were on duty on 29th March 2009 and, particularly, those directly involved in the arrest and/or interrogation of the Deceased; (or they were deliberately withheld from the Inquest) and
• The Department of Correctional Services had gaps in their records of the particulars of escapes by, and the recapture of , detainees in their charge during February, 2009.
It is essential that all public institutions keep thorough, accurate, contemporaneous and complete records of essential information relating to their core business. It is not difficult to appreciate that such records are necessary for a whole host .
Recommendation 8: Record keeping within the VPF, VMF and Correctional Services.
Evidence led at the inquest established that record keeping by the VPF, the VMF and the Department of Correctional Services was totally inadequate.
It is noted that:
• The VMF did not have accurate, contemporaneous records confirming which officers were on duty on 29 March 2009 and, particularly, those directly involved in the arrest and/or interrogation of the Deceased; (or they were deliberately withheld from the Inquest) and
• The Department of Correctional Services had gaps in their records of the particulars of escapes by, and the recapture of, detainees in their charge during February, 2009.
It is essential that all public institutions keep thorough, accurate, contemporaneous and complete records of essential information relating to their core business. It is not difficult to appreciate that such records are necessary for a whole host of contexts (including evidence for the Courts, human resource issues, transparency and public accountability). Correctional Services have already taken steps to ensure that proper records are maintained and kept securely. The VPF and VMF need to do the same.
It is recommended that the VMF, VPF and Correctional Services introduce and maintain appropriate records, which would be the subject of regular external audit.
Recommendation 9: Use of force; corporal punishment
Clearly, an unacceptable culture of violence has developed within the VMF (and possibly also the VPF) There is no doubt that the frequency and repetition of escapes from the correctional centres in Port Vila throughout 2008 and 2009 caused frustrations to law enforcement officers as well as to the general public. Public pressure was bearing down upon Correctional Services, the VPF and the VMF to prevent prisoner escapes and to detain escapees. However, such frustrations and pressure can never justify the use of unlawful, excessive force and brutally ritualized corporal punishment at the time of recapture.
The evidence led at the Inquest established that the use of force by members of the VMF on the body of John Bule at the Cook Barracks was not an isolated incident. The patterns of injuries sustained by other recaptured escapees at or about the time of the recapture of John Bule showed a consistent form of beatings. A number of recaptured detained were beaten in such a way as to sustain similar injuries to those which caused the death of John Bule (particularly, broken legs, broken kneecaps, broken arms, wrists and hands).
There can be no excuse for this behaviour and those who appear guilty of crimes against the laws of this country should be investigated, where appropriate charged, and required to answer for their alleged actions before the Courts. No-one is above the law, and this principle applies to members of the police as much as it does to any other person in this country, regardless of their occupation or station in life…
Recommendation 10: Disfunctional group culture in the VMF
Much has already been said in this report about the errant behaviour of the VMF in particular, their willingness to use illegal force during interrogation, to administer corporal punishment and their attempts to limit the effectiveness of the Inquest through non-cooperation and dissembling.
Regrettably, the behaviour of some personnel in the VMF went beyond passive resistance to the Inquest and actions were taken that can only be regarded as an attempt to intimidate the Coroner and those persons involved in the Inquest.
These actions included:
a) A senior officer in the VMF, prior to the commencement of the Inquest, loudly and aggressively saying words to the effect that “we will kill the Coroner”. This was said in the presence of other VMF officers and other persons.
b) During the course of the Inquest, VMF officers being driven through the streets of downtown Port Vila within 50 metres of the Inquest on the back of utility vehicles clearly displaying their new FAMAS automatic weapons.
c) Lt Seule and other VMF officers marching into the Inquest uninvited to loudly and aggressively announce that they were all too busy training in the use of their newly FAMAS rifles to appear before the Inquest to give evidence, notwithstanding that they had been summoned to appear.
d) The presence of an unsecured FAMAS rifle propped up on the floor of an unlocked room off the interrogation room at Cooks Barracks when the Coroner and other persons associated with the Inquest inspected that interrogation room (see Exhibit 33).
e) On at least one occasion, two VMF officers placing themselves in a position where they could watch over the Coroner near his residence during his non working hours and making it quite obvious that is what they were doing…
7. Conclusion
Far too much information relating to the death of the Deceased and the behaviour of law enforcement officers has been concealed and obscured by the very same law enforcement agencies who have a duty to enforce the law without fear or favour and to uphold the rule of law in Vanuatu. It is very doubtful that all the information relevant to this Inquest has yet been revealed as the law enforcement agencies have volunteered no information and have only revealed what the Inquest had some evidence about and required them to reveal. This lack of candour can only be due to a desire to protect their own, which is a breach of their duty under the Police Act [CAP 105], it is also shameful and wrong. This Report, the transcript from the Inquest hearing, and all exhibits are all to be made available to the public. Copies of this Report and transcript are available by e-mail from the Supreme Court Office. The exhibits will be held at the Supreme Court Office where they can be made available for inspection for anyone so interested and can be photocopied with the normal Court photocopying fees applying. The shining light of public scrutiny is the best protection of the rule of law.
Dated at Port Vila, this 4th day of March, 2010
- Coroner
(Justice N. R. DAWSON.