Republic v Awerika [2012] KIHC 37; Criminal Case 43 of 2011 (21 August 2012)

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

HIGH COURT CRIM CASE 43 OF 2011

BETWEEN:

THE REPUBLIC
PROSECUTOR

AND:

IAARETA AWERIKA
1ST ACCUSED

AND:

KABURE BEIA
2ND ACCUSED

AND:

TIMAIO PENITEKOSO
3RD ACCUSED

FOR PROSECUTOR: TABURUEA RUBETAAKE
FOR 1ST ACCUSED: TAOING TAOABA
FOR 3RD ACCUSED: ABUNABA TAKABWEBWE
Date of Hearing: 20 August 2012

JUDGMENT ON VOIR DIRE

The Prosecutor has applied to tender the caution statement of the first named accused, Iaareta Awerika. His counsel, Ms Taoaba, has opposed the tender as she submitted that it was not taken in accordance with the rules.

Ms Taoaba complained that her client was arrested and kept in custody for drunk and driving yet was interrogated for another offence. The police stated that they did this because it was very difficult to find the accused. I accepted this explanation but as long as the accused knew of the offence he was being interrogated on is different from the one he was being arrested for.

The above leads us to the third point raised by Ms Taoaba, that is, that the accused was never informed that the charges he is being interrogated on are different from what he was arrested for. The authority raised by Ms Taoaba, R v Delaney, 88 Cr, App. R. 338, stated only an observation of Lord Land CJ that the omissions may well make it impossible for a judge to say that he is satisfied beyond reasonable doubt and so require him to reject the evidence.

Evidence of the second prosecution witness showed that the accused was in fact informed of it by the Investigation Officer but it was not recorded. From this evidence I take it that the accused knew that the offence that he was about to be interrogated on is different from the offence he was arrested for. The accused did not give evidence on his understanding therefore I put no weight on this complaint.

Counsel also complained that her client was not informed in clear terms of his right to a lawyer and had led to the taking of his statement without legal advice. The argument was based on the statement by the accused as follows; 'I a tia n tuangaki bwa I kona n reitaki ma au rooia'. Ms Taoaba submitted that this was not enough to mean that the accused knew that he has the right to call and speak to a lawyer before the interrogation begins. Their position was that the accused just called his lawyer after the interrogation as this right was not clear to him. The prosecution argued strongly that this right was properly conveyed to the accused before the interrogation. They argued that the word 'reitaki' also means communicate in any way such as by telephone. It was also submitted by Counsel for the Republic and was also came out of the evidence of the prosecution witness that the accused chose not to exercise this right. The accused did not give evidence at all about this. I therefore put no weight in this trial on this complaint.

Ms Taoaba also complained that her client's caution statement was taken whilst still under the influence of alcohol. Prosecution submitted that the accused was not under the influence of alcohol when his statement was taken. He was put in the cell when he was arrested for drunk and driving from 9am and the statement was taken around 7pm, a period of about 10 hours later. This also came out of the evidence of Prosecution Witness Two. Section 121 of the Police Powers and Duties Act, 2008 deals with this issue and it states as follows;

"This section applies if –

(a) a police officer wants to question a suspect; and

(b) the suspect appears to be under the influence of alcohol or a drug.

(2) The police officer must delay the questioning until the police officer is reasonably satisfied that the influence of the alcohol or drug no longer affects

(a) the suspect's ability to understand his or her rights; and

(b) the suspect's ability to decide whether to answer questions."

The police officers delayed the interrogation to 10 hours after he was arrested and submitted that they found him normal during the interrogation. I accepted this evidence therefore I rejected this complaint.

Despite Counsel for the accused's persuasiveness I cannot accept any of her submissions. The prosecution has satisfied the burden of proof beyond reasonable doubt that the statement was made voluntarily.

In the exercise of my discretion the caution statement will be admitted.

Dated 21st August 2012.

...........................................
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT