Republic v Kaintoka - voir dire [2002] KIHC 77; Criminal Case 02 of 2002 (18 July 2002)

ANNEXURE

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 2/02

THE REPUBLIC

vs

TEKAURIRI KAINTOKA

For the Republic: Ms Ereta Bruce
For the Accused: Ms Batitea Tekanito

Date of Hearing: 3, 4, 5 & 6 June 2002

JUDGMENT ON VOIRE DIRE

The trial proper in this case was just about to start at 9.30 am on 3 June after the prosecution had opened its case when Ms Tekanito counsel for the defence advised the court that the accused was going to challenge the voluntariness of his caution statement which he had given on 26^th June 2001.

In response Ms Bruce advised the Court that despite the accused’s challenge to the voluntariness of the caution statement the prosecution will insist that the caution statement was made voluntarily. Consequently I suggested to both counsels that as the prosecution was just about to call its first witness to examine perhaps that was a convenient time for the prosecution to suspend for the time being the calling of its witnesses and that instead a voir dire be held there and then. Both counsel agreed and thus the voir dire began.

The first prosecution witness was called. He was Detective Constable Tabanea Kaurea. He was the investigating officer in charge of the case. He testified that he took the statement in his office at Bonriki Police Station on 26^th June 2001 on or about 1944 hours and after about 24 hours after the accused was arrested. Apart from the accused signing his own caution statement the witness and Constable Tikanteata Bauro also witnessed and signed the caution statement of the accused. Detective Constable Kaurea told the Court he had cautioned many accused before this case without having them been charged first of all.

The witness didn’t take the accused’s caution statement immediately after the accused was arrested at 2145 hours on 25/6/01 as he wanted to gather more information about the suspect and the alleged offence.

Before he took the statement of the accused the witness cautioned the accused by reminding him that he is suspected of having attempted to rape Nei Kaotiara Tearo, the victim and told the accused that he was not obliged to give his statement and if he did then it would be recorded in writing and may be given in evidence in court. The witness also asked the accused whether he wished to write his own statement himself or he wished him to write it down for him. The accused in reply asked the witness to write down his statement for him and he told the witness that he had nothing to say about the alleged offence.

The witness wrote down what the accused said about the alleged offence namely that he had nothing to say about it. Then before the accused signed it he was given the caution statement to read it and he was advised he could alter it or add anything to it and then he certified that he did voluntarily give the statement and signed it.

After the accused signed his caution statement as described above by the witness, the witness told the accused he wanted to ask him about the offence he was alleged to have committed. He also told the accused he was not obliged to answer the questions. However should he decide to answer any questions then the questions and answers would be recorded in writing and may be used as evidence in court. The accused then signed his statement and countersigned by the witness and Constable Bauro.

Then there followed a series of 12 questions being put to the accused by the witness which again were all signed by the accused and countersigned by the witness and Constable Bauro after the witness read them back to the accused to correct and certify the caution statement.

Constable Kanteaba Bauro was the next witness for the prosecution. He testified that he has been with the Police Force for more than a year and presently he is stationed at Bonriki Police Station.

He said he knew the investigating officer in this case namely Detective Constable Tabouea Kaurea, both of whom countersigned the accused’s caution statement.

He confirmed that the accused was cautioned on 26^th June 2001 and the accused was cautioned in the normal way by telling him he was not obliged to say anything and if he did it will be put down into writing etc. etc. He confirmed also that he was at the office throughout the period when and where the accused was interviewed and cautioned.

That concluded the case for the prosecution.

Then the accused himself Tekauriri Kaintoka gave evidence and testified he is 18 years of age, comes from Tabiteuea village North Tarawa and remembered on 25 June 2001 he was in custody at Bonriki Police Station and didn’t know why he was put in custody. On 26 June 2001 the day after he was arrested his cautioned statement was taken by Detective Constable Tabouea Kaurea in the Detective’s room at Bonriki Police Station. When he was in the room with the Detective he was apprehensive, that is afraid, because of the alleged offence he has been blamed to have committed; he was not used to having being put in custody with a police officer in a police station, let alone to have his statement taken by a police officer. He remembered having given his statement to the Detective in which he said: “I have no information that I know”. The Detective however didn’t ask what his statement meant but instead asked him questions. The Police Officer further told him that he has been suspected of having committed an offence, but didn’t explain that properly to him. The accused also said the Detective didn’t read his statement back to him nor was he given his statement to read it himself. He was not told to also change or alter his caution statement should he wish to do so.

The accused under cross examination admitted that he saw another police officer who was with Detective Kaurea, during the interview.

The accused admitted also that despite his apprehension of the fact that he has been put in custody by the police for only a few hours or so ago which he never told the Police Officer about, he confirmed that he has never been threatened or oppressed in any way or other by the Police at the time when he was in custody.

In fact the accused confirmed also that he answered each and every question that were put to him by the investigating officer and also signed his own caution statement voluntarily after the interview was finished.

The accused also confirmed he was 17 years of age when he was put in custody, and interviewed by the police.

That concluded the case for the defence.

I then heard addresses by counsel for the prosecution and counsel for the defence.

Counsel for prosecution submitted that the prosecution had proved beyond reasonable doubt that the accused had made a statement voluntarily for the following reasons:

(a) There was no evidence of the investigating officer having used force or threat to compel the accused to make a statement;

(b) The accused never told the investigation officer that he didn’t want to give a statement;

(c) Both statements were read back to the accused;

(d) As regards the second statement the accused was not cautioned as he had just been momentarily cautioned shortly before the second statement was made; and

(e) The fact that the accused signed the caution statement proved that he had made the statement voluntarily.

Counsel for the defence on the other hand submitted that the prosecution has failed to prove beyond reasonable doubt that the accused had made the statement voluntarily because once the accused said to the interviewing police officer that “I have no statement that I know” meaning he does not wish to make a statement then any questions or answers that were put to and given by the accused after the accused refused to make or give a statement are not voluntary.

Counsel further submitted that the questions which were put to the accused and thus formed part of the caution statement were put to the accused before he was formally charged and therefore were not voluntary.

In deciding the issues in this case I applied the test that Lord Summer had applied in Ibrahim v. the King (1914) AC 599, 609 that “no statement by the accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority”.

And that the above test should be applied in a common sense way to all the facts in the case in their context, and I must ask myself whether the prosecution have proved beyond reasonable doubt that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority (DPP v Ping Lin (1976) AC 574).

For the prosecution one experienced police officer, Detective Constable Tabanea Kauria, aged 30, and has been in the police force for about 10 years, was the investigating officer, and assisted by a junior police constable of one year standing: they both gave evidence of the circumstances of the taking of the accused’s statement. The accused also gave evidence.

I am impressed by the two police officers as truthful and reliable witnesses. They were cross examined and both of them were not shaken in the least. When the Detective Constable Kauria was cross examined by counsel for the defence why he didn’t formally charge the accused first before he cautioned him and took his statement. The Detective Constable replied and said that he had cautioned many accused before and that is what they usually did. Under the Judges Rules when a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it (see 11 Halsbury’s Laws of England (4^th ed) 420).

In the present case the accused has not yet been charged or informed he may be prosecuted for that offence and thus the investigating police officer was entitled to question the accused as he did.

Counsel for the defence argued that the investigating officer DC Tabane Kauria should have ceased to question the accused when the accused told him that he did not want to give a statement. However and as stated earlier a police officer when investigating a crime and so long as he still hasn’t had enough information to enable him to lay the charge, he is entitled to question any person he thinks can provide useful information. And whether that person has been taken into custody or not it doesn’t matter so long as that person has not been formally charged or informed he was going to be prosecuted.

The accused by this time has not yet been charged. He was finally charged on 24 June 2001.

I therefore reject the argument of counsel for the defence and I accept the argument of counsel for the prosecution that there was no evidence that the police officer had used force or threatened the accused to make a statement and the fact the accused signed the statement proved beyond reasonable doubt that the accused made the statement voluntarily.

I also do not believe the accused when he said his caution statement was not read back to him, nor given to read it himself or change or alter it. The investigating officer said that he had done everything that he is supposed to do under the Judges Rules.

The accused in his evidence has not disputed or denied in any way what the investigating police officer gave in his evidence that the accused had been properly cautioned before he gave his statement. However the accused had said in his evidence that he was afraid when he was put in custody, when he was with a police officer in a police station, and when his caution statement was taken by the police officer.

I accept the apprehension and inconvenience of the accused under such circumstances but it is inevitable when one is suspected of having committed an offence and the police are investigating it. However there is no evidence to suggest here that the police authority is directly responsible for such apprehension and inconvenience of the accused in terms of what the police authority did or said to the accused.

Upon consideration of all the evidence before me I am satisfied beyond reasonable doubt the caution statement was made voluntarily and I rule that the said statement is admissible.

Dated the 18^th day of July 2002

THE HON MR JUSTICE M N TAKABWEBWE
JUDGE