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Alleged Delay of Investigation by Police [2005] VUOM 2; 2005.02 (28 February 2005)

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT
ON THE

ALLEGED DELAY OF INVESTIGATION BY POLICE

28 February 2005

9231/2005/02

REPUBLIC OF VANUATU

PUBLIC REPORT ON THE
ALLEGED DELAY OF INVESTIGATION BY POLICE

SUMMARY

This report is issued to outline persistent slackness and ignorance of legitimate duty by certain members of the force which resulted in the delay to investigate a case which was reported to them for more than a year.

The incident occurred on 28 July 1998. A mother and her son were picked up at Central Primary School by a taxi driver to go home but unfortunately he turned to Bellevue where he forced the mother to have sex with her despite the presence of her son.

On 31 July 1998 the case was reported to a police officer at the Police Station.

It was alleged that there was no action made by police on that case until February 1999 (8 months later) following the complainant’s approach to the Ombudsman Office.

The Ombudsman investigation revealed that there was an unreasonable delay of investigation by police for almost 8 months. It was also indicated that there was no proper administrative system within the Force to monitor the transfer of cases from one member to another. As such offenders were not prosecuted in most cases.

It was also revealed that Police officers had not taken into account the nature of the offence committed which was an attempted rape.

The Ombudsman recommends that that the Officer commanding the Uniform Investigation Branch inquire into the conduct of the police investigating officers in causing the delay in investigating the case with a view to impose disciplinary action against those who was tasked for that case. An apology letter to the complainant causing the delay on her report should also be forwarded to her by the Police.

It is also recommended that the Head of the Uniform Investigation Branch make changes to procedures relating to case administration and management. One of the changes recommended is for the Uniform Investigation Branch to include a duty to officially inform any complainants on a timely basis the status of their complaints.

TABLE OF CONTENTS

SUMMARY
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the maladministration of Police Investigation Unit.

The Ombudsman is also given the power to look into defects in laws or administrative practices, including Police Act (Cap 105), Police Standing Order and Internal regulations.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present my findings as provided under the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the alleged delay of investigation by Police regarding a case that was reported to them.

This also provides an overview of investigation process in this case that was reported to the police and to determine whether the conduct of Police Officers who were dealing with this case were proper and the laws in force are defective.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS

Relevant laws are reproduced in Appendix A

3.10 Police Act (Cap 105)

Police General Order:

Police Standing Order E-5

4. OUTLINE OF EVENTS

4.1 In July 1998, Mr. Willie Tari made a report to the police on an attempted rape on his wife Lilon Bong by a taxi driver, Mr. Ronnie Noal.

4.2 The incident occurred on 28 July 1998 at 11.30am when Ms. Bong and her son Glen Jean Ban were picked up by the above taxi driver on their way back from the Port Vila Central Primary school. Ms. Bong alleges that the taxi driver stopped voluntarily and suggested to drop them off at their home at George Pompidou.

4.3 The taxi driver then turned back and instead of going directly to George Pompidou he ended up on the way to Monmartre (Bellevue) where he forced Ms Bong to have sex with him in the presence of her child. She refused and convinced the taxi driver to return back home to Georges Pompidou.

The full report of this incident is recorded in Ms. Bong’s Police statement. (See Appendix "B".)

4.4 On 31 July 1998,Mr. Tari, the victim’s husband, officially lodged a report to the Police. (Refer to his statement in Appendix "C"). It is alleged that Police Constable Kalman Andrew at Uniform Investigation Branch was initially responsible for dealing with this case.

4.5 The complainant was never informed about the progress of this case. In February 1999, Mr. Tari officially lodged a complaint to the Ombudsman Office alleging that there was an undue delay in the investigation of this matter by police.

4.6 Upon receipt of this complaint, the Ombudsman decided to open an inquiry into the matter. The Ombudsman notified the Officer-in-Charge of the Uniform Investigation Office at that time, Mr. Cybrien Bila to get confirmation of the said allegations and the Officer in charge of investigation in this case, Mr. Kalman Andrew.

4.7 On 24 March 1999, the Ombudsman received a response from Mr. Kalman Andrew by telephone. Mr. Andrew stated that this case was initially assigned to Sergeant Edmandley Tonton. The case was later handed to him on November 1998. The following month he went on leave for two months and transferred the case to Mrs. Lilie Joel.

4.8 In a letter dated 30 March 1999, Mr. Seule Takal assured the Ombudsman that the case is now with the Prosecution Department.

4.9 On 30 March 1999, the file was sent to the State prosecution Office by Mr. Kalman Andrew after serving the accused with a caution statement on 29 March 1999.

4.10 On 13 April 1999, the Ombudsman requested Mr. Seule Takal to comment on the reason for alleged delay in investigating this case.

4.11 The Ombudsman also requested Sergeant John Edmanley to justify the reason of the delay of the case since he was initially responsible to deal with this case.

4.12 In his letter dated 18th May 1999 to the Ombudsman Mr Edmanley explained that at that time he had about 300 outstanding cases for Efate Rural which were reported in 1996,1997,1998 including this case. Due to his workload this case was left unattended to for eight months from the date it was reported to the police until March 1999 when it was sent to the State Prosecution Office.

4.13 On 6 December 1999, Mr. Dick Fred from the office of the State prosecution confirmed to the Ombudsman that the case has no evidence to proceed to the Public Prosecutor’s Office and could not be brought to Court. (See Appendix "D").

5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to preparation of this public report to give the following individuals another opportunity to respond.

Mr Michael Taum: Former Chairman of Police service Commission
Mr Thora Thomas: Former officer In-Charge of Uniform Investigation Branch [UIB]
Kalman Andrew: Police officer
Honorable Joe Natuman: Former Minister of Internal Affairs
Mr Holi Simon: Former Acting Commissioner of Police
Mme Lilie Joel: Police officer
Mr Dick Fred: State Prosecutor
Mr John Edmanley: Police officer

Responses were received from the following:

- Mr Kalman Andrew: In his response to the working paper, Mr Kalman stated that many factors had contributed to the delay of investigating the case. He referred to the workload, work facilities such as truck, man power and the way the case had been referred from a member to another. The full statement of Mr Andrew testimony is enclosed in Appendix G

6. FINDINGS

6.1 Finding 1: Unjustified Delay of Investigation by Police to investigate a serious complaint of attempted rape.

The Police had caused an unjustified delay in investigating an alleged criminal complaint when they did not take investigate the matter immediately after it was reported even though the accused and the potential witnesses were at that time residents of Port Vila. None of the officers who were allocated the case file had taken positive steps to initiate inquiry as required and expected of Police investigators in Police Standing order E -5.

The Ombudsman has found that the case was clearly reported to the Police on 28 July 1998 but no investigation took place until February 1999 when the complainant made an Official complaint to the Ombudsman’s Office. Consequently took the initiative to investigate and the file was sent to the Prosecutions Office in March 1999.

6.2 Finding 2: The transfer of case from one police officer to another contributed to the delay in investigating the case and no reasons were given for the decision to transfer the case.

It was reported that the case was initially handled by Sergeant Edmanley who then transferred it to PC Andrew Kalman in November 1998. Then it was passed to PC Lili Joel in December when PC Andrew was on annual leave. However, the Ombudsman has found that there was no proper explanation or records given by police to justify the reason for transfer of this case from one police officer to other.

6.3 Finding 3: The Investigation Unit of the Vanuatu Police Force acted contrary to natural justice in handling this case.

The Uniform Investigation Branch of the Police Department acted contrary to principles of natural justice when handling the complainant’s report on the alleged attempted rape The investigation did not start until eight months later when the delay by the Police was officially reported to the Ombudsman’s Office as a complaint. During the period of eight months the Police did not inform the complainant about the status of the investigation nor was he informed of the reasons why case was never investigated.

6.4 Finding 4: Practices of maladministration exercised in the Uniform investigation Branch No reasons were given to the Ombudsman about this matter.

The Ombudsman also found during his investigation that police officers involved in this matter could not say what caused the unreasonable delay in investigation except that the case file was allocated to three different Police officers over the period of eight months

Furthermore, the fact that the case was reported and registered with the Police for over eight months before investigation was conducted, shows that there exists a defective administrative procedures relating to cases being reported to the police, case allocation, case management and investigation.

6.5 Finding 5: Defective investigative practice by police to prosecute offender for a serious crime against victim.

The Police officers involved in this particular complaint (attempt rape) did not investigate the case thoroughly even though they had the file for a long time. The State and Public prosecution were unable to lay charges against the Taxi Driver (Ronnie Noal) due to the lack of sufficient evidence as stated by the Officer-In-Charge of the State Prosecution Office.

7. RECOMMENDATIONS

7.1 Recommendation1: That the Subordinate officer commanding Uniform Investigation Branch should inquire into the conduct of the police officers for causing unjustified delay in investigating the alleged attempt rape case with a view to impose disciplinary action against officers who failed to carry out timely investigations and causing the police force into disrepute .

7.2 Recommendation 2: That Police should write an apology letter to Mr. Willie Tari and his wife for the unreasonable delay in dealing with their complaint

7.3 Recommendation 3: That a proper record procedure be used by Investigation Unit when transferring case from one officer to other to justify the progress of the investigation.

7.4 Recommendation 4: The Police Investigation section create time schedule and targets when investigations could be completed for all complaints received and periodically inform the complainants of the status of their case through official correspondences.

Dated the 28 February 2005

IOLU ABBIL
ACTING OMBUDSMAN OF THE REPUBLIC OF VANUATU

8 INDEX OF APPENDICES

A. Relevant laws, regulations and Rules

B. Ms. Lilon Bong’s Statement

C Mr. Tari’s report

D Copy of Mr. John Edmanley’s response to the Ombudsman

E Copy of letter from Mr Dick Fred/ Office of the State Prosecution

F Letter from the Ombudsman to Superintendent Seule Takal

G Testimony of Mr Andrew Kalnaran

APPENDIX A

RELEVANT LAWS, REGULATIONS AND RULES

3.11 Police Act (Cap 105)

Section 4. (2): The force shall be employed though Vanuatu and its territorial waters for:

The protection of life and property

d) the prevention and detection of offence and the production of offender before the Courts,

Police General Order: Section 101 Chapter C

Section 1) Officers are required to discharge the usual duties of the Office to which they appointed and any others duties which the commissioner of police may call upon them to perform

Police Standing Order E-5

Section 4) Every Police Officer will attend to complaint, report, request or inquiry without undue delay and must take whatever initial action is required.