Police v Young [2015] CKHC 1; CR 312-5.2014 (12 March 2015)

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

CR NO'S: 312-5/2014

POLICE

v

ROBERT ERROL TAUPINI YOUNG

Date of Hearing and Judgment: 12 March 2015

Counsel: Mr D McNair for the Applicant
Ms M Henry for the Respondent

MINUTE OF THE HONOURABLE JUSTICE HUGH WILLIAMS

[1] The applicant in this matter, Mr Young, is currently charged with four counts of burglary, on 13 June 2014 of the Treasure Chest at Avarua, on 23 June of Computer Man at Avarua on 25 June of Sava Limited at Nikao and on 28 June of the Bite Time Cafe at Avatiu.

[2] He has applied pursuant to what his counsel Mr McNair nominated as s.105 of the Criminal Procedure Act 1980-1for a question of law to be determined before trial, namely whether a document entitled "Additional Statement" dated 1 July 2014 is admissible as evidence at the trial of those charges against Mr Young.

[3] Though, as the Court understands it, Mr Young's trial is likely to take place before the Justices' of the Peace, Mr McNair has sensibly applied pre-trial to have the issue of admissibility of the Additional Statement determined in order that the substantive hearing will not be disturbed by the necessity to deal with the admissibility of the statement on a voir dire. The procedure adopted is to be commended.

[4] The factual position is that the police executed a search warrant on Mr Young's property on 30 June 2014 and, pursuant to the search warrant, removed a large number of items from the house. Mr Young was located and taken to the police station where he was interviewed and made a relatively lengthy statement. Though it is headed Suspect Statement and its admissibility is not contested in the forthcoming hearing it appears that the practice of the Cook Islands Police in interviewing suspects is for the interviewing officer to ask questions and record those questions and their answers. A typist is in the interview room and prepares a transcript of the interview as it proceeds. The interviewing officer does not keep notes of the questions and answers so the transcript becomes the only record of what takes place during the interview.

[5] The first statement, the Suspect Statement, is dated as commencing at 17:15hrs on 30 June 2014 is largely exculpatory although in it Mr Young acknowledges that a large number of items were discovered and seized under the search warrant from his premises. He gives an explanation for his possession of them which, if accepted, makes for innocent acquisition. The statement records (on pages 1 to 2) the customary caution being administered to Mr Young and his understanding of it and his right to consult and instruct a lawyer without delay and his saying that "no lawyer would come" at the time of the statement "so you can ask me any question and we will do it."

[6] At the conclusion of the making of the statement on 30 June Mr Young was arrested and charged with the four counts of burglary earlier detailed, even though so far as is currently known the police case against him would, without more, possibly or principally depend on the application of the Doctrine in Recent Possession. The police might therefore arguably be seen to be somewhat hasty in charging Mr Young with the burglaries, but that is not a matter which needs to be dealt with at this point and no doubt it will be an issue at trial as to how much information the police then had on which to base the charges.

[7] Mr Young's arrest and the advice of the charges is timed in a Police job sheet at 19:37hrs on 30 June. The job sheet records that he was not only charged with three of the charges, Sava, Computer Man and Bite Time cafe, "he was also advised that further charges will be laid against him".

[8] Mr Young was retained in Police custody overnight and at about mid-morning on the following day, 1 July, his affidavit supporting this application said that he was taken from the cell to an interview room by Detective Inspector Areumu Ingaua. Mr Young said that the Detective Inspector used words to him on that occasion to the following effect:

"(i) that I knew why I was there; he wanted information from me,

(ii) that he wanted information about the burglaries I was charged with and the names of people involved, and any other burglaries I knew about.

(iii) that if I helped him, he and the Police would help me in court to get a lighter sentence.

(iv) that if I didn't help him, he wouldn't look after me,

(v) that he knew me and my family and that we were neighbours, and that we should help each other.

(vi) that I should make another statement either to him or to Constable Ngamata and tell them all about the burglaries and they would then help me in court."

[9] At the point Mr Young and the Detective Inspector were about to discuss the matter, the Inspector said that he knew of the property uplifted from the Young residence under the search warrant and that he knew Mr Young had made a statement the previous day. He said in his affidavit that he wanted to speak to Mr Young on the morning of 1 July partly because he had reason to suspect Mr Young had committed the burglaries but also because the CCTV footage which the Police had obtained had indicated that Mr Young was accompanied by two other persons and he wanted to know the identity of the two associates on the basis that if the Police were not advised of the identity of those persons they may "go and commit further burglaries."

[10] His affidavit said that he cautioned Mr Young in English, advised him of his right to legal assistance and gave him a phone book to enable him to exercise the latter. That was a point of contest during the evidence as is the Detective Inspector's evidence that Mr Young telephoned somebody in private after being given the phone book.

[11] It is common ground that after the introduction Mr Young told the Detective Inspector the identity of his two associates and made something of a confession of his participation in the burglaries. Just what was said is a little uncertain partly because Mr Young's evidence in support of the application did not wholly tally with the statement he said in his affidavit was made to him by the Detective Inspector.

[12] Another factor to be weighed in relation to that is that the Inspector said he did not use language to Mr Young, that he wanted him to help the Police and if he did so the Police would help him in the way set out in his affidavit. The confession to the Detective Inspector followed and when that interview had concluded, the Detective Inspector asked Mr Young to undergo a second interview. Mr Young agreed, saying that he wished to be interviewed by the officer who had conducted the search the previous day which proved to be a Constable Ngamata.

[13] In Constable Ngamata's affidavit, he said Mr Young commenced the interview by saying, of the interview with the Detective Inspector, "I told him, I told him everything. I had to" the Constable then administered the caution and gave him his rights to legal advice and, according to his affidavit, Mr Young then said "yes, yes, I know but I told him everything, I had to."

[14] Neither in his affidavit nor in his evidence did Mr Young use those words and Constable Ngamata was not cross-examined on the accuracy of that part of his affidavit so, for present purposes, the application may be determined on the basis that something of the sort was said.

[15] Mr Ngamata then interviewed Mr Young with the method of interview, oral questions and answers typed down by a typist in the room resulting in the Additional Statement which is the express subject of this application.

[16] It does not appear that the Police are, currently at least, wishing to call Detective Inspector Ingaua to give evidence as to his interview with Mr Young on the morning of 1 July prior to the interview with Constable Ngamata.

[17] It is preferable to carry on with the factual narrative concluding with the Ngamata statement. It contains a number of admissions by Mr Young which, if admitted as evidence, would, on the face of them constitute a significant hurdle in itself. Coupled with the Doctrine of Recent Possession it could possibly be enough to convict the applicant. At the conclusion of the Ngamata statement Mr Young was advised to seek legal advice. He acknowledged the wisdom of doing so and got into touch with, probably, Mr McNair.

[18] Mr Young declined to sign the Additional Statement but in evidence acknowledged that the only reason for his declining to sign it was not that its contents were untrue but that he was concerned and annoyed that he had also been advised that the Police intended to execute a second search on his property that day and that he was likely to face further charges.

[19] As a result of what took place on the morning of 1 July Mr Young was retained in custody overnight and then appeared, probably in front of the Deputy Registrar of this Court, on a date which may have been 2 July when he was remanded in custody until 10 July. The Deputy Registrar has annexed the record sheet and said "in view of the submissions made on behalf of the Police, I have no alternative but to remand you in custody to Thursday 10 July 2014."

[20] The application for the Additional Statement to be ruled inadmissible is based partly on the Evidence Act 1968 and partly on the Judges' Rules which, it is agreed, remain operative in the Cook Islands. The sections of the Evidence Act on which reliance is placed are first sections 3 and 4 which read:

3. Discretionary power of admitting evidence - Subject to the provisions of this Act, a Court may in any proceeding admit and receive such evidence as it thinks fit, and accept and act on such evidence as it thinks sufficient, whether such evidence is or is not admissible or sufficient at common law.

4. Discretionary power of rejecting evidence - Notwithstanding anything to the contrary contained in this Act, a Court may in any proceeding refuse to receive any evidence, whether admissible or not at common law, which it considers irrelevant or needless, or unsatisfactory as being hearsay or other secondary evidence.

[21] Sections 3 and 4 are obviously designed to form two parts of a whole giving the Court discretionary power to admit evidence whether or not it is strictly admissible or to reject evidence which may be admissible if it considers it irrelevant, needless or unsatisfactory.

[22] The Additional Statement, if admitted, could not be regarded as irrelevant or needless and could not be regarded as unsatisfactory as being hearsay or secondary evidence but more cogently the application is based on section 19 of the Evidence Act 1968 which reads:

19. Confession after promise, threat, or other inducement - A confession tendered in evidence in any criminal proceeding shall not be rejected on the ground that a promise or threat or any other inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the Judge or other presiding officer is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.

[23] The application was also based on the Judges' Rules particularly Rule III.B which relevantly reads:-

It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted, Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.

Before any such questions are put to the accused should be cautioned in these terms:

"I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted. You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence."

[24] Counsel both directed attention to the decision of the Privy Council in Peart v. R (Jamaica) [2006] UKPC 5. There the opinion of the Privy Council was delivered by Lord Carswell and from para 18 onwards, his Lordship discusses the history of the Judges' Rules including the following passage from para 20.

20. Lord Devlin in The Criminal Prosecution in England (1960) p 26 pointed to the reason underlying the prohibition in rule III(b) of the Judges' Rules of questioning after a suspect has been charged:

"The inquiry that is conducted by the police divides itself naturally into two parts which are recognizably different, although it is difficult to say at just what point the first part ends and the second begins. In the earlier part of the inquiry is to ascertain the guilty party and in the latter part it is to prove the case against him. The distinction between the two periods is in effect the distinction between suspicion and accusation. The moment at which the suspect becomes the accused marks the change."

Once the suspect has been charged, the efforts of the police interviewers are directed to establishing his guilt. He is under a greater disadvantage at that stage, in that he may feel under greater compulsion to answer questions, notwithstanding a caution. These factors may tend to produce a feeling of pressure upon the accused to speak where he might otherwise have remained silent and to result in unreliable statements from him when seeking to tell exculpatory lies to get himself out of trouble.

[25] His Lordship then (at para 24) set out what he describes as four brief propositions arising from the historical review he had undertaken:-

1. The Judges' Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed.
   
2. The judicial power is not limited or circumscribed by the Judges' Rules. A court may allow a prisoner's statement to be admitted notwithstanding a breach of the Judges' Rules; conversely, the court may refuse to admit it even if the terms of the Judges' Rules have been followed.
   
3. If a prisoner has been charged, the Judges' Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner's position after being charged and the pressure to speak, with the risk of self-incrimination or causing prejudice to his case, militate against admitting such a statement.
   
4. The criterion for admission of a statement is fairness, The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong person in favour of admitting it, notwithstanding a breach of the Judges' Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.
   

[26] Those principles in effect flesh out the terms of s.19.

[27] Ms Henry for the Police referred to R v. Admore 1988 3 CRNZ 550. There (at 551) the learned President first observed that the law when confessions should be excluded was laid down in R v. Horsfall [1981] 1 NZLR 117. In the case before the President he noted (at 553) that the appellant was "resignedly cooperative with the Police rather than overborne."

[28] The main judgment was delivered by the McMullin, J who said (at 559) that questions of admissibility in such circumstances, that is confessions obtained in breach of the Judges' Rules will:-

"generally depend of questions of fact and degree. Where statements have been obtained by means of breaches which are serious and significant they are likely to fall so far short of the standards required by the Crown that they will be ruled inadmissible, both in the context of the case immediately before the Court and also because to admit them would be a failure by the Court to maintain an effective control over police procedure in the generality of cases."

[29] The comment by the learned President as to what amounts to a person charged being overborne by questioning, and the observation by him to that effect in Admore is accepted as authoritative in Adams 1 Criminal Law (Chapter 2.4.03(b) page 2-46).

[30] Applying those authorities to the facts of this case, even though the Police may not wish to call Detective Inspector Ingaua, consideration as to whether the Additional Statement should be ruled admissible must commence with the conversation between Mr Young and the Detective Inspector on 1 July before the Ngamata statement was made. In that regard, the statements in Mr Young's affidavit require analysis in the light of Detective Inspector Ingaua's then knowledge of the case.

[31] The first is that Mr Young knew why he was there. There is nothing remarkable in that and also nothing remarkable in the fact that Mr Young was advised that the Police wanted information from him even though this was the first occasion on which he had undergone a Police interview. Any person would know that the Police, interviewing persons and charging them with offences, wanted information from them.

[32] The third aspect is that he wanted information about the burglaries, the names of the people involved and other burglaries he knew about. It is in that context that the comments about helping and about being prepared to seek the remand in custody for one week instead of two need to be construed.

[33] Also in that context is the comment made that "if helped he and the Police would help him in court to get a lighter sentence but if I didn't he wouldn't look after me, he wouldn't help me in court."

[34] Mr Young may not have been through this process before and the distinction between what the Police are able to do for suspects as opposed to the Court's powers may not have immediately impacted on him, but it would be obvious to any person, whether in Police custody or not, that if a person charged is prepared to co-operate with the Police the likelihood of a lighter sentence at the end of the day must be manifest. So it cannot be said that that was an inducement.

[35] There are then the comments about the Inspector and Mr Young being neighbours - as they are - but in a small community like Rarotonga many Police must know many people in the community. That of itself would not be likely to increase the possibility of an untrue confession or any confession being made.

[36] Mr Young then apparently named his two associates to the Detective Inspector.

[37] The form in which the Detective Inspector made his remarks about helping or not helping, the length of the remand of custody and a possible sentence were probably more abbreviated than was wise. They should always have been prefaced by a remark such as "though it is a matter for the Court," the Police will do what they can but the conclusion cannot be that the naming of the associates was untrue especially since Mr Young's naming of his associates to the Detective Inspector would be inadmissible in evidence against them. So all that naming the associates effected was that the Police were able to go and interview the two men named and presumably limit or terminate the possibility to which the Detective Inspector referred of their committing further burglaries with the consequent damage to the public.

[38] There is then the question of sentence, but any person would know that sentencing for criminal offences is a matter for the Court so although he confession made to the Detective Inspector may have been futile, it is a circumstance which needs to be taken into account when looking at the admissibility of the Additional Statement.

[39] The first matter to be observed in that regard is that the fact that the Additional Statement is not signed by the applicant is irrelevant since it is merely a record of oral questions and answers and, if admissible, it would be open for the Police to call Constable Ngamata and give evidence of the questions and answers one by one. The unsigned Additional Statement is merely an aide memoire and an assurance that the oral evidence was accurate.

[40] It is correct that Rule III(b) of the Judges' Rules require "exceptional circumstances" for the Police to question a person already charged. The reasons for that are as set out in Peart. But it is to be noted that the exceptions include the preventing or minimising more loss to other persons or the public or for clearing up an ambiguity. It could not be said that the statements were ambiguous but obtaining evidence concerning the names and movements of the associates could well be seen as preventing or minimising more loss to other persons or the public. Indeed the Detective Inspector said that was the purpose of his interviewing Mr Young.

[41] While the police may have been precipitate in charging Mr Young, he had in fact been charged and was entitled to the protection of the Judges' Rules particularly Rule III(b). But Rule III(b) has to be set against the terms of s.19 and when one turns to that, it is clear that there is no exercise of violence or force which would vitiate either the statements to the Detective Inspector or to the oral statements to Constable Ngamata or the typescript, being the Additional Statement.

[42] As to compulsion, although Mr Young in his evidence did not speak of having to make the statements he had already made to Inspector Ingaua, the Court can accept Constable Ngamata's recitation of those statements and the question then becomes what is the effect of Mr Young saying that "he had to" give the information to the Detective Inspector.

[43] The first point must be that it is not sought, it seems, to admit the evidence of the Detective Inspector. So even if Mr Young felt some compulsion to name his associates and confess the the crimes to the Detective Inspector, that is not part of the evidence in the case against him.

[44] Secondly, there is nothing to suggest that the Detective Inspector said anything to Constable Ngamata other than that Mr Young had named his associates and confessed to the crime. So Constable Ngamata started at the beginning largely ignorant of what had proceeded in the interview between Mr Young and the Detective Inspector.

[45] The third and critical point is that there seems to be nothing in what Mr Young said the Detective Inspector told him which would amount to a compulsion to disclose all to the Detective Inspector and later to Constable Ngamata. The situation seems more to be as described by the President in Admore a question of Mr Young being resignedly cooperative with the Police rather than overborne.

[46] Mr Young is an adult person and although he was being interviewed by the Police for the first time he had gone through the execution of a search warrant the previous day, he had made a statement after being cautioned. After being advised of his right to a lawyer, he could not have been described as a complete tyro in the situation and there is nothing in what he says the Inspector told him to suggest that his reluctance to communicate with the Police was overborne by cross-examination or unfair questioning and he indication seems to be that he was resignedly co-operative.

[47] In any case, under s.19 the court is given an overriding discretion to allow a statement made in the circumstances of the Additional Statement to be adduced in evidence if the means by which the confession was obtained we are not likely to lead to an untrue admission of guilt. Here, as Mr Young acknowledged in questioning, he did not disavow or decline to sign the statement because its contents were untrue. His disinclination arose from the advice that the Police were intending to execute a further search warrant and that he might face further criminal charges.

[48] In all those circumstances the appropriate conclusion is that no case has been made out for ruling the Additional Statement or Constable Ngamata's oral recitation of the questions and answers which led to it inadmissible. The application to have it ruled inadmissible is accordingly declined.

Hugh Williams J