Police v Tutakiau [2001] CKHC 2; HC Cr 147.2001 (19 November 2001)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 147/01

POLICE

v

NGAMETUA TUTAKIAU
Defendant

Mr Elikana for Police
Mr J McCleary for Defendant

Date of Hearing: 19 November 2001
Date of Decision: 19 November 2001

RULING OF GREIG CJ

This is an application which I have heard by way of voir dire to challenge the admissibility of the statement which was taken by the Police from the accused on 25 March 2001. The only evidence which has been put before me has come from the Detective Sergeant who took the statement and the evidence of the accused himself. There are one or two factual matters which though not incontrovertible are not altogether challenged.

The facts upon which I proceed to give this decision begin with the accused being taken to the Police Station quite early in the morning of 25 March 2001. According to his evidence he was put in a room and told to wait there. He says he waited for about 2 hours. It appears that during that time he was not questioned by anybody. The Detective Sergeant who took the statement had not been on duty but was called to duty earlier in the day. He was not given any specific task to perform in the investigation that was ongoing following the complainant's complaint. At or about 9.30 in the morning the Detective Sergeant having learnt that the accused was present at the Police Station decided to talk to him. The Detective Sergeant did not at that stage have any but the broadest information about the events and had no knowledge of any of the details of the complainant's complaint. The Detective Sergeant started speaking in a general way to the accused. He advised him that he did not have to speak to him but spoke to him generally about the desirability of telling the truth. The accused says that in this general conversation he was told that he would have to stay there until he spoke the truth, that assertion was not challenged. During this conversation which took about an hour the accused made a general admission of guilt. Following that the Detective-Sergeant asked some further questions and obtained some details from the accused of what had occurred. The Detective did not, in evidence, give any detail of that oral interview. Following a discussion with his superior officer the Detective sought some clarification from the accused as to the way he had entered the complainant's house. He then asked the accused if he would make a written statement. The accused agreed and both then moved into the detective's office where the Detective proceeded to take a statement on his computer. It was in question and answer form and in Maori. It began with a form of caution.

The statement is recorded as beginning at 10.35 am and concluded at 3.30 pm. There was opportunity for breaks for toilet and refreshment and a break is recorded at 12.18 pm to 12.40 pm. At 3.30 pm the Detective printed the statement and left the accused to read it. At 5.05 pm the accused signed the statement recording in his own hand that it was correct. He was then arrested and charged with rape and told that he had a right to a solicitor and was asked if he had any complaint and was entitled to see a doctor. He indicated that he did not want a lawyer. He was not advised of any right to a solicitor at any earlier time by the Detective or by any other police officer. It was the accused's evidence that after about half an hour after the Detective began to speak to him he asked to make a phone call but his request was ignored. He said that he intended to call his grandparents. He said that he did not know that he had a right to a lawyer.

The grounds of challenge were that the statement was involuntary and that it was taken in breach of the Constitution of the Cook Islands.

On the issue of voluntaries reference was made to R v Wilson [1981] 1 NZLR 316. That was a very different case on its facts and is of little assistance here. Though the accused was in the police station and under questioning for a long time I am satisfied that the statements oral and written were voluntary and were not subject to any oppression or overbearing conduct which made them unfair or inadmissible.

The Constitution of the Cook Islands contains in Part IVA a declaration of fundamental human rights and freedoms. Article 65 was relied on and as relevant to this case reads as follows:

65(1) Subject to subclause (2) of this Article and to subclause (2) of Article 64 hereof, every enactment shall be so construed and applied as not to abrogate, abridge, or infringe or to authorise the abrogation, abridgement, or infringement of any of the rights or freedoms recognised and declared by subclause (1) of Article 64 hereof, and in particular no enactment shall be construed or applied so as to -

(c) Deprive any person who is arrested or detained -

(ii) Of the right, wherever practicable to retain and instruct a barrister or solicitor without delay;

Subclause (2) of Article 65 requires all Acts and their provisions to be construed purposively and "to receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the enactment according to its true intent, meaning and spirit." This subclause corresponds to the provisions and intent of Section 5(j) of the former Acts Interpretation Act of New Zealand.

I think it is relevant to note here that there is in addition a further enactment in s. 9 of the Criminal Procedure Act 1980-81. Subsection 1 of that says that it is the duty of everyone arresting any other person to inform promptly the person arrested of the grounds of his arrest and of any charge against him and to allow him to consult a legal practitioner of his own choice without delay, so that there is a positive enactment in that regard.

I think it must be said that where there is a right to retain and instruct a lawyer that has to be an open right. It is not a right if it is kept secret; if a person is unaware of it and is not told of it. So that there is, concurrent with that right, clearly a right to be informed of it and that information has to be given at a reasonable time at an early time; so that it can be exercised in an effective way if it is so wished.

The provisions of the Constitution and in particular Clause 65 do not provide as does the New Zealand and the Canadian Bill of Rights provisions a positive duty to inform as to the right. Moreover the Article 65 talks about the construction and application of enactments so that it has as it appears an interpretative tendency in construction and application. But as I have said, these provisions should not be read narrowly or strictly and it would not be right to say that because it was difficult or not easy to show which enactment was being construed or applied but there was not in a case such as this any right to a lawyer, any right to be informed in proper time as to that right. In any event of course the Detective Sergeant and any policeman is acting in accordance with and under the powers and authorities that are given to him under the Police Act, under the Crimes Act and under the Criminal Procedure Act. So that it is not difficult to find some enactment which gives the authority or the power which the policeman applies and which give rise to the obligations and rights.

My conclusion then therefore in this particular case is that the accused was detained or was under de facto arrest at about half past ten in the morning. He was not informed of his right to a lawyer but he was entitled to be informed of his right to a lawyer at about that time in the morning. It was too late to do it at the end of the interview and the obtaining of the full statement. In those circumstances then I rule that the written statement is inadmissible.

Now that leaves of course the interview which was not taken down in writing it seems between about half past nine and half past ten in the morning.

As I have said the duty and the requirement for the commencement of the right to have a lawyer and the corresponding or allied duty to be informed of that right arises on the arrest or detention of the accused. A mere suspect who is being interviewed is not a subject of such a right and is not required to be given any information of the right. It is only when the police officer reaches the point at which the person is no longer just a suspect or and perhaps more important, where the person is in detention or in de facto arrest. I've said that this occurred at 10.30. There is a question as to whether it might have occurred at an earlier point. The evidence was that the accused was at the Police Station, he was told to wait, that is the evidence that is before me and he was there he says for some two hours but I'm inclined to think that it was for a shorter period than that.

In all the circumstances I'm not persuaded that the accused was in detention or under any form of arrest before 10.30am. I rule therefore that the evidence of the interview with the Detective Sergeant before that is admissible.