Attorney General v Tebana [1988] KICA 8; Criminal Appeal No 8 of 1987 (19 April 1988)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 8 of 1987

BETWEEN:

ATTORNEY GENERAL
Appellant

AND

KARAINGING TEBANA
Respondent

T. Tabane for the Appellant
No appearance for the Respondent

Date of Hearing: 18th April 1988
Delivery of Judgement: 19th April 1988

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

This reference is made by the Attorneys-General under s. 20 of the Court of Appeal Act. The accused (with others) was charged with murder and other offences. In the course of the trial, the learned prosecutor sought to prove a statement made by the accused in an interview conducted at the house of a police officer. The interview was conducted in the Kiribati language by a detective constable. He cautioned the accused that he need not say anything unless he wished to do so and that whatever he said might be put down in writing and given in evidence. The accused then signed a statement the substance of which read: "I have nothing to say." The detective constable then told the accused that he intended to ask him a few questions concerning the death of the person who had been killed, and repeated the caution. When questioned, the accused gave answers to the questions, which were taken down in writing, and the document was signed by the accused and the officer.

When the prosecutor sought to tender that document in evidence, counsel for the accused took objection to it on the grounds that it was not obtained voluntarily and that the interview was oppressive "in that it was taken from the accused immediately after he said he had nothing to say".

After hearing argument, the learned Chief Justice, who conducted the trial, ruled that the statement was inadmissible.

When the trial resumed after an adjournment, the prosecutor asked that the accused be acquitted since he apparently considered that the available evidence against him was inadequate. The learned Chief Justice acceded to this request and acquitted the accused. The prosecutor then sought an adjournment (apparently of the trial of the co-accused) to enable a reference to be made to the Court of Appeal under s. 20 of the Court of Appeal Act. When an adjournment was refused, the prosecutor presented a nolle prosequi in respect of the accused and the co-accused signed by the Attorney-General. Since the prosecutor already had the nolle prosequi, it is indeed difficult to understand why he did not present it to the court instead of asking for an acquittal. The Chief Justice said to the accused and the co-accused: "The prosecution no longer wishes to prosecute the cage against you. You are all therefore acquitted and discharged."

The first question asked on the reference is as follows:

"Where an accused person applies to the court to hold a trial within a trial to determine the admissibility or non-admissibility of a statement given or answers to questions given under caution, does the court have any discretion to refuse the accused person's application?"

It is to be observed that this question did not strictly arise in the case, since the accused did not apply for a trial within a trial. However, the answer to the question is plainly Yes - the judge does have a discretion.

In general it is true to say that when an objection is taken to the admissibility of a confessional statement on the ground that it was not voluntarily made, the judge must be satisfied that the confession was voluntary before he admits it, and if the accused wishes to give or adduce evidence on that issue the judge is bound to hear it. In those circumstances there will normally be held a trial within a trial to determine the circumstances in which the confession was made, see Ajodha v the State (1981) 2 All E.R. 193, at pp. 202-203. In Kiribati the trial is of course conducted by a judge alone, and there in not the same necessity to ensure that an inadmissible confession is not put before the jury, but where there is a conflict as to the circumstances in which the confession was made it may be convenient to hold a trial within a trial to resolve the issue. However where there is nothing to suggest that any real question of involuntariness, unfairness or impropriety arises there would be no point in holding a trial within a trial. Similarly, if the facts as asserted by the prosecution lead to the conclusion that the confession should be rejected, a trial within a trial would be a mere waste of time. The trial judge has a discretion to exercise, as he does in so many other matters arising in the conduct of a trial. This is not to say that in the present case it was right to reject the confession without holding a trial within a trial - that is not a question to be decided upon a reference under s. 20.

The second question referred is the following:

"Does the conduct of a question interview under caution, immediately after the accused person has said in his statement that he has nothing to say about the alleged offence, of itself render that question interview inadmissible on the ground that it is oppressive?"

It is clear law that no statement made by an accused person is admissible in evidence unless it is shown by the prosecution to have been voluntary, in the sense that it has not been obtained from the accused either by fear of prejudice or hope of advantage exercised or hold out by a person in authority, or by oppression: see Phipson on Evidence, 13th Edition (1982) paras. 12-03, 12-05 and 12-06. A statement is voluntary if it is made by the accused in the exercise of his free choice. As was said in McDermott v The King (1948) 76 C.L.R. 501, at p. 511:

"If he speaks because he is overborne, his confessional statement cannot be received in evidence, and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."

Whether there is oppression or other conduct which renders a statement involuntary must depend on all the circumstances of the case.

The critical words in the second question referred to the court are the words "of itself". They mean that what is asked is whether the fact that an accused is questioned further after he has said that he has nothing more to say renders his answer inadmissible. The answer to that question is clearly No. Although there is no power to compel an accused to answer, and although it would be wrong to put any pressure on him to do so, the fact that further questions are put after a refusal to answer does not without more render the conduct of the questioner oppressive or the answers involuntary; whether further questioning would have that effect depends on all the circumstances. That does not necessarily mean that the confessional evidence in the present case would be admissible if a new trial of the co-accused were hold, because if it appeared to the trial judge that the further answers resulted from pressure or other oppressive conduct the evidence would have to be rejected.

Question 3 is as follows:

"Where the Attorney-General enters a "nolle prosequi" under Section 68 of the Criminal Procedure Code (Cap 17), does the court have the power to acquit rather than discharge an accused person?"

This question must be answered No. Section 68(1) of the Criminal Procedure Code provides:

"In any criminal case and at any stage thereof before verdict or judgement, as the case may be, the Attorney-General may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released or if on bail his recognisance shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts."

Clearly a nolle prosequi may be entered at any stage before verdict or judgement, and if it is so entered the court then has no power to acquit. In the case of the present accused, Karainging Tebana, however, the nolle prosequi was entered after verdict or judgement.

The questions are answered:

(1) Yes, he has a discretion.

(2) No, not of itself.

(3) No, not if entered before verdict or judgement.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal