Taverio v Police Department [2003] CKCA 4; CA 11.2003 (2 October 2003)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND, NEW ZEALAND

CA11/03

IN THE MATTER of Section 54 of the Judicature
Act 1980-81 and Article 60(3) of the Constitution

BETWEEN

TAIMAU TAVERIO
Appellant

AND

THE POLICE DEPARTMENT
of Rarotonga
Respondent

Hearing: 26 September 2003

Coram: Casey JA (Presiding)
Smellie JA
Williams JA

Counsel: JH Wiles for the Appellant
K Raftery for the Respondent

Judgment: 2 October 2003

JUDGMENT OF THE COURT

Introduction

[1] On 27 June 2003 the appellant was convicted of murder after a trial before a Judge and jury. Although some weeks out of time, the application for leave to appeal was not opposed and we exercised our discretion pursuant to Article 60(3) of the Constitution. The appeal seeks to have the verdict set aside and a new trial ordered on the grounds that an inculpatory statement made to the police on 19 October 2002 should have been excluded. The contention is that the statement in question was obtained by an inducement and therefore was not voluntary. A challenge to evidence of an admission of guilt, made in the presence of the police to a third party, was abandoned during the hearing of the appeal.

The voire dire

[2] The challenge to admissibility was made before the trial commenced and in the absence of the jury. The Crown, obviously accepting the onus to establish the statement was voluntary, called two detective sergeants, first Williams and then Ingaua. The introductory evidence of these two police officers was to the effect that when first interviewed the appellant denied having been in the home of the deceased on the night of the murder but when challenged with the fact that his fingerprints had been found there, he admitted to having burgled the property but denied the deceased was at home. A little later he changed his story and said that the deceased had invited him into her home and they had talked but still denied assaulting her or causing her death. He was first interviewed on or about 24 September and again on 3 and 4 October but by 19 October the police considered they had sufficient evidence to charge him with murder.

[3] Before he was charged he was asked if he wanted to say anything more and given the opportunity of learning what evidence the police had, but he did not want to hear and refused to say anything.

[4] The evidence suggests that the appellant was more comfortable with Detective Senior Sergeant Williams and that after the other police officer was elsewhere, he spoke to the detective sergeant.

[5] Detective Sergeant Williams was called first and having gone through the preliminary information referred to above, he recounted how he had arrested the accused on the 19^th and then said:

"Sometimes later on after he was arrested he requested if I can bring his girlfriend Nooroa Aukino. He also requested that I take him with his girlfriend somewhere else outside the police station and for Senior Sergeant Ingaua not to come with us. So I went to pick up the girlfriend myself and returned back to the police station to pick him up from there we proceeded straight to the Nikao social centre."

[6] At the social centre which is on a beach there was a discussion between the appellant and his girlfriend which we are not now concerned with, but Detective Sergeant Williams went on to say that after the meeting at the beach:

"...we returned back to the office where I obtained a statement from him in the presence of the girlfriend."

And it is that statement that Mr Wiles submits should have been excluded.

[7] What we have recounted so far is the evidence-in-chief of the witness Williams. Under cross-examination it was put to Williams that after the arrest he had told the appellant that he would not be allowed to see his girlfriend, his children and other members of the family. But Detective Sergeant Williams insisted that all he had told the appellant was that after he had been arrested for murder, his girlfriend would not be allowed to visit him in prison because she was to be a police witness. On the specific question as to whether the children had been mentioned, the officer said he could not remember. It was put to him that the accused had said that he was entitled to see his children and the officer conceded that maybe he did say that but the officer could not recall it. A little later Williams acknowledged that there was a request by the accused to see his girlfriend and that the meeting was arranged, following which the statement was obtained and he was actually taken to his parents' home to see them before he was delivered back to the prison where he was being held on remand.

[8] But later still, in his cross-examination, just towards the end when he is being re-examined by the prosecutor, the question and answers that are relevant are as follows:

"Question: And why did he ask to see his girlfriend. Do you know?

Answer: He told me it was just the two of us because I said before he's more open to me rather than to me and Ingaua because he thought me and Nooroa are brother and sister. My connection with Nooroa is that her brother is married to my sister, so he requested for the last time if he can speak to Nooroa and that he's going to tell us what actually happened. He never said anything else, then I went to pick up Nooroa and when he went down to the beach I never said anything because I already told Nooroa that the accused wanted to tell us something again.

Question: Could you just tell us why you went out of your way being I suppose what the defence means towards 'take him down to the beach with his girlfriend'.

Answer: It was discussed with Senior Sergeant Ingaua and also the officer in charge of the investigation of his request and that was agree. Taking him down to the beach was my own decision because he requested we take him outside the police station."

[9] Detective Senior Sergeant Ingaua was then called. He went through the preliminaries as indicated above and it was clear that he was coming and going on occasion but, at page 7 of his evidence, the following questions and answers appear:

"Question: Do you recall the accused saying 'If I tell you something more, can Nooroa come and see me?

Answer: Yes.

Question: You do recall that?

Answer: Yes.

Question: And I think Detective Williams said that could be arranged or words to that effect?

Answer: Yes.

Question: And as you know it was arranged.

Answer: That is correct."

[10] The accused was then called, who gave evidence to the effect that even before he was arrested, he was told that if he was charged with murder, he would not be allowed to see his wife, children and family, which included his mother and father. He was asked specifically what Detective Williams said to him and he replied:

"He was saying to me that they placed me on arrest and I cannot see my girlfriend, my kids, my dad, because its against the law, so I asked him like if I'm gonna see her but he was saying he cannot because you've been charged so I said to him 'what if I say some other things more in this case', he was saying if I did it can be arranged to see the girlfriend and the kids."

The transcript shows that during the cross-examination of the accused Mr Wiles intervened to point out to the Judge that the prosecutor was asking questions seemingly directed to issues other than whether there had been any inducement and the Judge, after some discussion, upheld the objection.

[11] Counsel then addressed, Mr Wiles going first. He submitted that the situation was very unusual, that the police evidence was less than satisfactory and that the statement in question had been forthcoming as a result of the inducement held out by Detective Sergeant Williams.

[12] The prosecutor then addressed, saying:

"Obviously Sir it comes down to a case of credibility of witnesses."

And she further submitted that there was no proof that the police had threatened that the accused would not see his children or other members of his family. There was, of course, evidence from the accused to that effect but it can be taken that the prosecutor was submitting to the Court that that evidence should not be accepted.

[13] Mr Wiles replied briefly and submitted that any conflict of evidence should be resolved on the burden of proof in favour of the accused.

[14] It is significant that neither counsel referred to any authority or even, in the absence of authority, spelt out clearly to the Judge the matters that he should take into account and certainly there was no express statement that it was for the prosecution to prove the confession had been obtained voluntarily to the criminal standard.

The Judge's ruling

"Court: Thank you. When we heard the police witness it's quite clear that Det. Sgt. Williams was the interviewing officer at all times. The interviews were conducted by him and he has notes of the interview. Det. Sgt. Ingaua was present, we don't know if he was present throughout the whole of the interview although he suggests to us that he was not. He did not keep any notes and this would have been because the responsibility for the interview rested solely with Snr Sgt Williams. Det. Sgt. Ingaua in his comments to various questions put to him was that he cannot recall what was said, it maybe because he was not focused on what the Sgt was saying because that was for the Sgt. To record, or it maybe because he was out of the room. Snr Sgt Williams has said that he informed the accused that if he was charged with murder he would not be able to see his girlfriend. As Ms Maki has said as she would have been a witness for the Crown that would be standard procedure. Counsel for the accused has raised a suggestion that the police went beyond that and said you will not be able to see your father, your mother or your children. In response to this have raised the suggestion that the accused made the comment 'they are my children, I'll see them if I want to.' Neither of the police witnesses can recall that having been said. It raises the presumption as to whether or not the police did in fact suggest that there would be a bar against the accused seeing his family other than his girlfriend, the mother of his children who would have been a Crown witness. It's the order of this Court that the statement is admissible."

Analysis of evidence and ruling

[15] The evidence establishes that prior to arrest on 19 August 2002, the appellant refused to answer any further questions or provide any more information. Nonetheless, after his arrest and having been told that he could not now see his girlfriend, he enquired whether he could see her away from the police station if he provided some more information. The police agreed to arrange such a meeting and it was after it had taken place that the challenged confession was provided.

[16] On the authority of R v Peacock (7.11.95, New Zealand Court of Appeal, 429/95) it is immaterial that the suggestion comes from the accused. If it is picked up by someone in authority and acted upon, as was the case here, it is an inducement. So the Judges Rules were breached and the issue for the Judge was whether the written statement obtained as a consequence was given voluntarily.

[17] We are obliged to say that the ruling fails to address the relevant factual issues and raises doubts as to whether the Judge considered the legal issues adequately or at all. It was put to Mr Raftery during his submissions that there had to be a point at which a ruling is shown to be so unsatisfactory that it should be overturned and a new trial ordered. Counsel agreed and further conceded that the ruling in this case comes close to the margin of unacceptability. It may be observed also that counsel did not mention, and it appears the Judge did not consider, the question of whether or not the inducement could be said to have resulted in a false statement. Mr Wiles submitted we should decide that issue in favour of the appellant and pointed to various untruths in the statement which he suggested showed it was fabricated. The most compelling of those was his statement that the victim had told him that she was pregnant to him but the pathologist gave evidence to the effect that she was not pregnant.

Our conclusion

[18] Although we find the ruling unsatisfactory and consider that there was an inducement that breached the Judges' Rules, we are not persuaded that the confession was false.

[19] Quite apart from that consideration, however, and irrespective of it, we would not be prepared to order a new trial. Even without the statement, the prosecution had a very strong case. The appellant, on his own admission, was the last to see the victim alive. His fingerprints tied him to the murder scene and DNA evidence placed the victim's blood on the jeans he was wearing on the night of the murder, albeit in small quantities. In addition to that circumstantial evidence, there are his oral admissions of guilt to third parties in the presence of the police. Finally, the way in which the appellant chopped and changed his story as the police investigation advanced suggests that this is a case in which lies point to guilt.

[20] The appeal is therefore dismissed.

Casey JA
Smellie JA
Williams JA