Osifelo v R [1995] SBCA 11; [1995] 3 LRC 602 (12 October 1995)

[1995] 3 LRC 602

COURT OF APPEAL OF SOLOMON ISLANDS

OSIFELO AND OTHERS

v

R

Court of Appeal
Kirby P, Savage and Palmer JJA
29 August, 12 October 1995

Constitutional law - Fundamental rights - Protection against inhuman or degrading treatment - Police interrogation - Whether confession statements obtained in breach of Constitution - Whether statements made voluntarily or obtained unfairly - Whether confession unfairly obtained if extracted after prolonged interrogation and sleep deprivation - Whether breach of Constitution necessarily resulting in evidentiary unfairness - Constitution of the Solomon Islands 1978, s 7.

The appellants were charged with murder. No forensic or other objective evidence was available to link any of the three appellants to the crime and they were convicted on the basis of caution statements which they made in the course of investigations to police officers. The appellants appealed on the ground inter alia that the caution statements were inadmissible having been given by them involuntarily. The first appellant submitted that the trial judge misdirected himself by considering and determining the question of guilt at the stage of the trial when he should have considered only the admissibility of the caution statement which the first appellant claimed ought to have been excluded because he gave it after a period of cautioned interrogation lasting from 4.36 am to 11.20 am, after more than six days in police custody and general interrogation from about 11.20 pm, having been deprived of rest, food, cigarettes and betel-nut which he submitted constituted 'inhuman treatment' in contravention of s 7 of the Constitution.

HELD: (Kirby P dissenting in part) Appeals dismissed.

Inhuman treatment ordinarily imported brutality, barbarity, cruelty or conduct of a kind not ordinarily found among civilised humans and the treatment of the first appellant by the police officers did not approach such a level. There was no reason to disagree with the decision of the trial judge who, having heard the appellants give evidence at some length, was satisfied as to the voluntariness of their confessions and found no unfairness to justify exclusion of the confessions. While evidence obtained as a result of a breach of the Constitution would ordinarily be excluded as having been unfairly obtained, it might not follow that every breach of the Constitution would necessarily result in evidentiary unfairness (see pp 613 - 614, post).

Per Kirby P (dissenting). It was unnecessary to determine the constitutional issue because, in the absence of objective confirmation that the first appellant's confession was voluntary, fairly obtained and accurate, it should have been excluded in the exercise of judicial discretion since, even if voluntary in the technical sense, it had been extracted in circumstances which were unfair. Sleep deprivation was a well - established technique to erode the will of the person under interrogation and although the investigating officers might not consciously have employed such a technique the result of such an extended period of questioning in official custody could not be a voluntary confession.

The evidence against the first appellant depended solely on his confession statement which should be excluded as inadmissible and it followed that his conviction should be set aside (see pp 604, 607-608, 609, post).

Per curiam. Per Kirby P. Police interrogation commencing at 4.36 am, in the case of a person already in police custody for many days, could amount to inhuman treatment contrary to the constitutional provision, as could lengthy interrogation in handcuffs with beating and deprivation of food and sleep. The constitutional provision required law enforcement officers to perform their difficult duties with due regard to the essential dignity of every human being (see p 608, post).

[Editors' note: Section 7 of the Constitution of the Solomon Islands 1978 is set out at p 608, post.]

Cases referred to in judgments

Amaiu v Comr of Corrective Services and State (N 417/1983, unreported)
PNG NC McDermott v R (1948) 76 CLR 501, Aus HC
McKinney v R [1991] HCA 6; [1991] LRC (Crim) 387, (1991) 171 CLR 468, Aus HC
R v Barn (SI Crim Case No 19 / 1991, unreported)
R v Tofola (SI Crim case No 20 / 1992, unreported)

Legislation referred to in judgments

Constitution of the Solomon Islands 1978, ss 5(3), 7
Court of Appeal Rules, r 29(2)
Criminal Procedure Code, s 23

Other sources referred to in judgments

Judges' Rules (Solomon Islands) 1982
Judges' Rules (United Kingdom)

Appeals

Fred Osifelo, Peter Fitali and Gegeo Maefasia appealed against the decision of Muria CJ in the High Court whereby he convicted the appellants for murder on the basis of their confession statements. The facts are set out in the judgment of Savage and Palmer JJA.

M Samuel for the first appellant, Osifelo.
J Remobatu for the second appellant, Fitali.
J Wasiraro for the third appellant, Maefasia.
R Talasasa for the Crown.

12 October 1995. The following judgments were delivered.

KIRBY P. I am in agreement with Savage JA in respect of the disposition of the appeals of Mr Peter Fitali (the second appellant) and Mr Gegeo Maefasia (the third appellant). I agree in the orders proposed in those appeals and with his Lordship's reasons.

However, in the appeal of Mr Fred Osifelo (the first appellant) I have reached a different conclusion from Savage JA which I understand to be agreed in by Palmer JA. Having regard to the fact that mine is a minority opinion, I have hesitated before expressing it. The trial was long and complex. It was conducted with great care and skill by the primary judge (Muria CJ). He was satisfied beyond reasonable doubt as to the voluntariness of Mr Osifelo's caution statement. Having admitted it into evidence, he was satisfied beyond doubt as to his guilt of the crime of murder charged. However, with hesitation and regret, as I adhere to that difference, it is my duty to express it and, in these reasons, to explain how it arises. In order to do this, I must retrace the facts as they concern Mr Osifelo.

Reasons for vigilance in cautioned statements

First, it is important to remember that, in this case, there were no eye witnesses to the murder of the deceased. No body has ever been found. No weapons were ever recovered to implicate the accused. No forensic or other objective evidence was available to link any of the accused to the crime. The case against the accused did not even establish a clear motive for the killing, although it was suggested that it arose out of revenge for some past wrong done or imagined on the part of the deceased. None of these considerations is determinative. Murder and like serious crimes are often committed in secret. Bodies and weapons are frequently disposed of. Motives are often obscure. But the absence of such evidence requires that courts of trial and, on appeal, courts such as this, should scrutinise the prosecution evidence with particular care. Secondly, in the case of Mr Osifelo, the evidence against him was substantially his caution statement. That is why the ruling at the conclusion of the voire dire challenge to the admissibility of his statement was crucial for the first appellant. Once the caution statement was admitted, there was ample evidence which, if believed, would sustain the conviction of the accused. The absence of objective, external evidence (save for the confessional out-of-court statements of the co-accused which were also contested - to the extent that they could be used against Mr Osifelo) made it particularly important in this case that the primary judge should scrutinise the caution statement with great care. It is clear from his ruling on the voire dire that Muria CJ understood this. This court must apply a similar rigour to the performance of its task in the appeal.

Thirdly, decisions in many courts of the Commonwealth, with growing insistence in recent years, have reinforced the long-stated anxiety of the common law about the reception into evidence of confessional statements to police. This anxiety arises, in part, from the preference of the common law for an ounce of real evidence to an abundance of confessional statements. This preference dates back to the days of the Star Chamber when confessions were extracted by torture. It also arises as an encouragement by the courts to the collection by law enforcement agencies of objective evidence, where it is available, rather than confessions. In part, the reservations expressed by judges of high authority arise from the belief of the common law that persons in police custody, especially for long periods, may be prone to have their will eroded and their appreciation of their basic right to remain silent diminished, simply because they are in the unfamiliar and potentially threatening or frightening environment of official custody.

In this jurisdiction, the common law has now been reinforced by constitutional requirements: see s 5(3) of the Constitution of the Solomon Islands 1978. But it is important to remember the fundamental reason which lies behind this constitutional provision and its common law predecessor. People in official custody, especially for long periods, are at risk that their will will be sapped and the exercise of their fundamental rights diminished by the impact upon them of the unfamiliar and potentially oppressive environment in which they are held.

Fourthly, as a number of still more recent decisions of high authority around the Commonwealth shows, cases do arise involving the actual misuse of police authority to extract confessions from suspects by violence, threats, tricks and promises. Accused persons before, at and after trial frequently make allegations of such tactics against police. It is the common experience of courts, as Muria CJ observed, that accused persons often repent their confessions and wish that they had not made them when they realise fully the punishment which acceptance of the confession, following conviction, will bring. Yet the fact remains that accused persons are often at a serious disadvantage in contesting their confessions to police. Until recently there has been a general reluctance on the part of the judiciary to accept the proposition that police would falsify confessions or use unfair or oppressive conduct to extract them. Notorious cases in many other Commonwealth jurisdictions have lately made the courts more vigilant to prevent, so far as they can, the risk of conviction on unreliable confessional statements to police. It has led to a re-enforcement of earlier judicial statements about the authority of judges to reject confessions which are unsafe or unfairly procured: see McDermott v R (1948) 76 CLR 501. Today, in many Commonwealth jurisdictions, as a result of unfortunate experiences and grave miscarriages of justice proved to have arisen from the use of confessions later found to have been unsafe, judicial authority typically requires independent corroboration of the voluntariness, fairness and accuracy of confessional statements to police.

Confirmation may be provided, in cases of contest, by sound and even video recording of such confessions, by the taking of such confessions before judicial officers or other independent persons or the corroboration of the confession by other independent evidence: see comments of Palmer J in R v Tofola (SI Crim case No 20/92, unreported) p 4. But in the absence of such affirmative assurance of the voluntariness, fairness and accuracy of the alleged confession it will ordinarily be rejected, however apparently probative it might otherwise appear to be. This is not so much out of distrust of police or their methods of Osifelo v R (Kirby P) their appreciation of their basic right to remain silent diminished, simply because they are in the unfamiliar and potentially threatening or frightening environment of official custody. It is the recognition of these realities which lies behind the insistence of the common law that accused persons should be transferred, without undue delay following their arrest, from the custody of the Executive branch of government (represented usually by police who are generally committed to securing a conviction if convinced of the accused's guilt) to the independent judicial branch of government (represented by magistrates and judges) who will ensure that the accused's rights are respected and a fair trial had securing confessions, as because of the high store which our system of justice places upon the avoidance of the risks of a miscarriage of justice based upon confessions above: see McKinney v R [1991] LRC (Grim) 387 at 393[1991] HCA 6; , (1991) 171 CLR 468 at 476. The more serious the crime, and hence the longer the potential deprivation of liberty following conviction, the more scrupulous will courts of trial, and of appeal, be to exclude confessional evidence which does not meet the high standards laid down by the judges. A beneficial consequence of the line of authority to which I have referred has been an improvement in police practice, a diminished reliance on confessions and the increased use of mechanical or electronic recording of such material to put the voluntariness, fairness and accuracy of caution statements beyond doubt. The court must consider these developments in other countries in the context of the realities and possibilities of policing in the Solomon Islands with their many remote outpost and limited resources. However, improvements in police resources will not be encouraged if this court is less rigorous than other Commonwealth courts have been. The risk of an unsafe conviction is no more tolerable in the Solomon Islands than in any other jurisdiction of the common law.

Prolonged interrogation produces a cautioned statement

From these remarks of a general character I turn to the facts of the case of Mr Osifelo. Having regard to the fact that Muria CJ rejected the allegations of force, pressure or threats on the part of police against Mr Osifelo, and taking into account the advantages which his Lordship had as the trial judge seeing the witnesses, I am content to approach the appeal accepting the foregoing findings of Muria CJ. The matter which concerns me can be dealt with, fully accepting the primary judge's preference for the police evidence, and examining Mr Osifelo's case within the four walls of the uncontested facts emerging from that evidence.

According to those facts, Mr Osifelo was arrested on 4 August 1992 at about 3 pm. It was not until 5 August 1992 that he was sent under escort from Auki (where no magistrate was available) to Atori. He was taken before a magistrate at Atori on 6 August 1992. I shall assume that this delay involved no breach of s 5 of the Constitution. Muria CJ so found. That finding has not been challenged in the appeal.

Mr Osifelo remained in custody after the magistrate so remanded him right up to 11 August 1992 when he made the caution statement which is challenged in this appeal. I set aside the complaints of deprivation of food, cigarettes and betel-nut made by the appellant, as these were also not accepted by the primary judge. I also set aside, for the purpose of my analysis, the complaint of Mr Osifelo that before the official interrogation began by police at 4.36 am on 11 August 1992, he had been interrogated by police from 7 pm on 10 August, being in handcuffs the whole time and denied rest. The evidence showed that for some hours before the cautioned statement was commenced, Mr Osifelo was being questioned in an informal way by police. But I shall assume that the formal cautioned interrogation began, as the police witnesses said, at 4.36 am on 11 August 1992 and continued until 11.20 am on that day. This is an interval of a little less than six hours. That is already a very long interview. But the features of the interrogation that are of concern to me are (1) that it followed more than six days in police custody; (2) that it followed the 'general interrogation' from about 11.20 pm on 10 August 1992; (3) that it occurred in the unfamiliar circumstances of a police station far from the accused's home without access to his family, friends, advisers, still less legal counsel and (4) that the actual cautioned interview began at 4.36 am, a most unusual hour to commence such an interview.

The police contended that Mr Osifelo, who had just been talking and joking with them, suddenly indicated that he wished to make a statement, and that, in effect, they had no option but to take it down as and when he volunteered it, a due caution having been given. Det Con Rifasia, the principal interrogator, stated that there had been a 'general interrogation' of the accused from about 11.20 pm on 10 August 1992. This statement was accepted by Muria CJ. It means that the entire interrogation, including the taking of the caution statement, took 12 hours, the caution statement itself taking up half that time.

Conclusion: the statement should be rejected.

The result is that, strictly within the prosecution case, there was continuous investigation for a very long time followed by a prolonged formal, cautioned interview commencing in the early hours of the morning. Viewed against the background of Mr Osifelo's prolonged retention in police custody before the questioning process began on 10 August 1992, and with respect to those of a different view, I have concluded that the resulting confession must be excluded as unsafe. The circumstances of its taking cast doubt upon its voluntariness. Even if it was voluntary in the technical sense, it was extracted in circumstances that were unfair and enliven the judicial discretion to exclude the statement on that ground.

Sleep deprivation is a well established technique of eroding the will of the interrogated. I do not say, of course, that such technique was consciously used by the investigating police officers in interrogating Mr Osifelo and taking his caution statement. But the result of such an extended period in official custody, a questioning process beginning near midnight and a formal interrogation starting at 4.36 am is not in my view satisfactory - at least in the absence of objective confirmation that the resulting confession was voluntary, fairly obtained and accurate.

The court inquired of the respondent whether the practice revealed in this case was common amongst police in the Solomon Islands. It was recorded that the interrogation of Mr Osifelo by Det Con Rifasia was, in fact, the latter's first major interrogation. I make allowance for his inexperience. Counsel for the respondent referred the court to the unreported decision in R v Barn (SI Crim Case No 19/1991, unreported). There, an interrogation commenced at 2.47 p.m. It continued with many breaks until ultimately concluding at 3.56 a.m. the following morning. However, there are important differences between Barn and this case. The commencing time was perfectly normal. There was clear proof of many breaks. The issue did not arise in a voire dire in Barn because the admissibility of the confession was not challenged. Here a. challenge is certainly made. It must be determined in accordance with the legal principles which are defensive of the assurance of the voluntariness of all confessions to police. In my opinion, against the background of facts which I have collected, entirely from the police evidence as accepted by the primary a judge, I could regretfully not be satisfied that the cautioned statement which was then taken was voluntary. Alternatively, I would reject it as the ground that it was taken from the accused in circumstances which, viewed as a whole, were unfair. Most people, including in the Solomon Islands, sleep during the early morning hours. Most are not used to engaging in serious and prolonged mental effort commencing before midnight and gathering pace at 4.36 am going on for a further six hours thereafter. In my respectful view, questioning, even of a general kind should not have commenced at 11.20 pm as found by Muria CJ. Cautioned questioning should not have begun at 4.36 am.

Once the cautioned statement signed by Mr Osifelo is excluded, there is no reliable evidence against him to sustain his conviction. That conviction must therefore be quashed.

Constitutional right to humane treatment

To the foregoing I would add only three final comments.

First, during the hearing of the appeal, counsel for Mr Osifelo sought leave of the court to add a fresh ground of appeal to raise a constitutional objection to the conduct of the interrogation: see r 29(2) of the Court of Appeal Rules. She relied upon s 7 of the Constitution which reads: 'No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.' Very properly counsel for the respondent raised no objection to leave for the amendment being granted. As the first appellant had at all times objected, at the trial, and on appeal, to the admission of the caution statement and as the Constitution simply provided an alternative legal basis for this objection which presented no fresh factual issues, it seems appropriate to grant the application to add this ground. I would permit the amendment.

In view of the conclusion to which I have come by the application of ordinary principles of the common law, I do not regard it as necessary to deal with the constitutional argument. The application of s 7 must be approached on the footing that the complaints of the first appellant of assaults, food and sleep deprivation are for this purpose rejected. There can be no doubt that if it were established that an accused person in police custody were not only interviewed by police over the extended hours and at the times stated but were beaten, deprived of food, denied sleep and interviewed in handcuffs by many police, such conduct would be inhuman treatment within the constitutional prohibition. But I would also be inclined to consider commencing a cautioned interrogation at 4.36 a m inhuman treatment in the case of an accused already in police custody for many days and unable to go anywhere because of the magistrate's order remanding him in police custody. The matter must be viewed cumulatively: see Amaiu v Comr of Corrective Services and State (N 417/1983, unreported) PNG NC. However, I can leave the meaning of s 7 of the Constitution to another case where it is necessary to decide it. The presence of the provision commits this country, and specifically its law enforcement officers, to performing their difficult duties with due regard to the essential dignity of every human being. That includes even an accused alleged to be guilty of a brutal murder. The constitutional instruction must be obeyed by all. It must be enforced, even in hard cases, by the court.

The general rule and the particular case

Secondly, it is inevitable that an appellate court, faced by a quandary such as the present case presents, will ask itself the question. What is the proper general rule? In a sense this involves judges doing what Emmanuel Kant enjoined in moral philosophy - testing conclusions by what would happen if the standard in the particular case were accepted as generally applicable. In my view, it is undesirable that this court should, in effect, sanction as an acceptable police practice the pattern and timing of the interview which occurred here. The police officers, and particularly those inexperienced in taking cautioned statements, should be left in no doubt that commencing formal statement recording at 4.36 am is not acceptable. There must be no belief that interrogation after sleep deprivation is acceptable in the Solomon Islands, whatever the special circumstances. That would be a wholly unacceptable general rule. It reinforces and confirms the conclusion to which I have arrived in disposing of this particular case.

Ensuring convictions according to law.

Thirdly, it is true that the result of my order would be that Mr Osifelo, a person convicted of what Muria CJ found to be `an act of savagery and barbarism committed with the greatest and worst of all malice that the law can imagine' would walk free. He would do so despite a recorded confession taken in a case of much difficulty by police officers who accepted his guilt and whose evidence convinced the trial judge who had the advantage of seeing and hearing all the evidence. To release into the community a person who might be guilty of such a brutal act would be a serious and grave step. However, if it is what the law requires this court must so order.

Muria CJ fully recognised this. By his order, he discharged one of the defendants at the trial, Mr John Itea. Despite Mr Itea's admission in his caution statement that he had provided the fast outboard motor boat without which the crime could never have been committed and despite evidence that he had also provided the stones to weigh down the body of the deceased so it would sink in the sea, Mr Itea was acquitted because the Chief Justice applied to him the strict legal tests that our law requires.

So, in my view, it must be in the case of Mr Osifelo. If his caution statement was not shown to have been truly voluntary - or if it was obtained in circumstances that were unfair - it had by law to be excluded. Apart from that statement there was no other reliable evidence admissible against Mr Osifelo, except for out-of-court allegations of co-accused not independently and reliably confirmed. Thus, the evidence against Mr Osifelo depended upon his caution statement. Exclude it and his conviction must be set aside.

Orders

The orders which I favour are:

(1) In the appeal of Fred Osifelo:

(i) appeal allowed;

(ii) conviction quashed; and

(iii) direct the entry of a verdict of acquittal.

(2) In the appeals of Peter Fitali and Gegeo Maefasia: appeals dismissed.

SAVAGE JA and PALMER JA. The three appellants, Fred Osifelo, Peter Fitali and Gegeo Maefasia, were convicted in the High Court at Honiara on 15 December 1993 on an information laid by the Director of Public Prosecutions that on 29 December 1990 they murdered a man named Toloaeno Basikona at Ata'a sea in Malaita Province. All three now appeal against conviction. It should be added at this point that the information laid by the Director of Public Prosecutions contained a fourth person. He was acquitted, as is noted later in this judgment, by the Chief justice in the judgment he delivered on 15 December 1993.

The appeal was first called before this court at its sittings in March 1995. Due to the sickness of one of the counsel the case was adjourned to the Saturday of that week. On the Saturday one of the counsel, Mr Wasiraro, counsel for the appellant Maefasia, failed to appear and the hearing was adjourned to the next sitting. On the day allocated at the present sittings Mr Wasiraro again failed to appear but it was indicated that he would arrive late in the afternoon. The court had a very full list for the sitting and in the light of the delays that had already occurred in the hearing of this appeal it resolved to proceed with the hearing in respect of the other two appellants and to make a special time to hear Mr Wasiraro for the appellant Maefasia at 5 pm that day. In fact the court did not sit until 5.30 pin as Mr Wasiraro did not arrive until then, but it then continued sitting until counsel had completed their submissions, which was about 7.30 pm. This history of the matter and of the course taken is recorded to show why the appeals were heard in two parts and to express the court's strong disapproval of what happened so far as the hearings are concerned. It is deplorable that this should have happened; the prisoners, whose liberty and future is at stake, are treated with scant regard; other counsel have their work programmes disrupted, and the court is unable to hear in good time the appeals before it. The court sits relatively infrequently and if cases have to be adjourned considerable delays ensue. It may also be noted that assembling the Court of Appeal involves considerable expense to the government and people of the Solomon Islands, so disruptions to its programme are extremely wasteful of limited resources. The court will not tolerate this in the future. We make it plain that in our view solicitors and counsel who are likely to be involved in a case on appeal should keep in regular contact with the registrar and take steps to ensure that they are available at the fixed times.

We now turn to the appeal itself. The hearing was spread over 36 days during the months of July, August, September and October 1993 and the record covers some 650 pages, but for the purposes of the appeal we can state the factual background very briefly. The prosecution case was that the appellant Fitali went to the village of the deceased man Basikona and asked him to go with him, Fitali, to Ata'a. He explained that they should take two dug - out canoes which they would sell and use the proceeds for Christmas and New Year celebrations and to purchase tobacco and other things. Basikona went with Fitali. Arrangements had earlier been made with a man named John Itea to pick up some other men, who included the other two accused Osifelo and Maefasia together with two others, and take them in a canoe to which he had access and which was powered with an outboard motor, to a point where they would meet Fitali and Basikona in their dug-outs, that is, paddled canoes. The canoes met as they approached an area of sea called the Fousiu Passage and Itea’s canoe towed the two dug out canoes, with Fitali and Basikona in them, out to sea. When some distance out Basikona was forced into the Itea canoe and killed in a most barbaric manner. A bush knife was used; his hands were hacked off, his neck was cut and his head chopped off. His body was later put into a bag containing stones which they had brought with them, and dropped into the sea. Fitali had later on the same day, having returned to land, told others that they had sunk at Fousiu and though he had looked for Basikona he had not found him and he was missing. The next day a police officer, having heard a man was missing, saw Fitali and asked how the incident happened. Fitali said that when he and Basikona got to the Fousiu entrance the canoe they were in, the bigger of the two, was struck by a huge wave. It capsized and, he said, Basikona tried to swim ashore; he, Fitali, was able to get back to the canoe and to get into it. He heard Basikona shout but was unable to help him. The police officer for a number of reasons including the facts that the canoe was a big canoe and, in his assessment, one old man would not have been able to right it on his own and that it still contained some of Fitali’s personal belongings, did not believe him.

Police investigation resulted in some six men being charged with murder. At the taking of the depositions two men discharged but the three appellants and John Itea were committed for trial. At the trial the three appellants were convicted but John Itea was found not guilty.

The evidence at the trial by independent witnesses covered the matters relating to Fitali meeting Basikona; his arranging to take two canoes to sell and paddling off together; his account, when he got back to land, of what had happened; the police officer's interview with Fitali and his story of the huge wave; and two witnesses, related to the appellant Maefasia, who recounted how he had told them of his taking part in the killing of the deceased. Thereafter there was no independent evidence as to what happened but the Crown relied upon the statements made by the three appellants to police officers during the course of their investigations. It is sufficient to say that once the statements made to the police were admitted there was sufficient evidence, if accepted by the court, to support the conviction of each of the three accused. It should be added that all three challenged the admissibility of their statements and the Chief Justice heard a considerable body of evidence on this issue in relation to each accused in a voire dire which together with counsel's submissions covered some 250 pages of record. He then considered the matter for some weeks and gave a lengthy, careful and detailed ruling in which he dealt with all the grounds raised by each appellant separately in respect of his caution statement. He ruled that the statements should all be admitted.

None of the appellants gave evidence in the trial itself though each had given evidence on the voire dire. After counsel had made their submissions the court reserved its decision. In his judgment delivered on the 15 December 1993 the Chief Justice considered and rehearsed the evidence applicable to each accused separately and a s already stated convicted the three appellants and acquitted the fourth accused. As the Chief Justice clearly recognised, for he remarked upon it more than once, or as they are generally called in this country, the caution statements each had made. It will thus be clear that the admissibility of the caution statement goes to the heart of each appellant’s appeal and, indeed, the main thrust of each appellant’s appeal was the issue of the caution statement and, more particular, the question of its voluntariness.

We turn now to consider the individual; appeals.

Osifelo

His original notice of appeal contained some 13 grounds which, in substance, can be reduced to three. They were expanded upon by counsel in her written and oral submissions. In addition at the hearing she added a further submission based upon s 7 of the Constitution.

The first matter raised, and it covered two or three of the appeal points, was in effect that the Chief Justice had misdirected himself by considering and in effect that the Chief Justice had misdirected himself by considering and determining the question of guilt at the stage of the trial when he should have considered only the question of admissibility of the caution statement. Mrs Samuel referred to a passage in the ruling on the voire dire which she submitted showed that the Chief Justice was clearly considering the matter of admissibility and this is made clear when at the end of his ruling he stated expressly that on the voire dire he had limited his consideration to the issue of admissibility.

The second matter, which is the principal ground of the appeal and which covers a number of the original points, is concerned with the admissibility of the caution statement made by the appellant. The matters urged by the appellant were, in effect, that the statement was not made voluntarily and therefore was not admissible in that it had been induced by force and threats and that he was interrogated over a long period without rest, food, the opportunity to smoke or use betel-nut. Further, though it was not expressly so enunciated, the appellant submitted the judge should have excluded the caution statement as a matter of discretion. The Chief Justice dealt with these points fully in his ruling on the voire dire and we see no reason to disagree with his conclusions. He rejected the appellant's allegation in respect of force and threats, the denial of food, cigarettes and so forth, and made it clear he believed the police witnesses and disbelieved the appellant, giving examples of things said by the appellant which satisfied him that he was not telling the truth. He said he considered the evidence of the two principal police officers involved had the ring of truth about it. He accepted that the appellant had been generally interrogated before the actual interview started which was at 4.36 am on 11 August 1992 but thereafter was treated normally like other accused. An examination of the record of the evidence given by the police officers shows that Osifelo was arrested at his village some distance from Atari on 4 August 1992. He was taken to Atari and then the next day to Auki, and on 6 August taken before a magistrate. He had been held in the pantry room outside the charge office at Auki police station thereafter. At about 4 pm on 10 August Det Con Rifasia told him that he would interview him later that day and at 11.20 pm he took him to the CID office. He had tea, biscuits and a tin of Taiyo. There was general talk and Osifelo also smoked and chewed betel-nut. Amongst other general stories Osifelo apparently talked about some transactions relating to shells he had with a man from PNG who worked for the Shell company at Honiara. Present at the interview was also Det Senior Serg Angisia and he said that at some stage Det Con Rifasia asked Osifelo about his involvement in the killing of Basikona though at that point the recording of the statement had not commenced. Osifelo was silent for some time and then spoke in 'language' to Angisia and said that the killing was his, Angisia's uncle, Fitali's idea. Angisia is apparently related to both the appellants Fitali and Osifelo. Angisia then told Osifelo to give his story to Det Const Rifasia as he, Angisia, was there only as the witnessing officer. The interview appears to have been conducted in pidgin. According to Rifasia before recording of the statement started, which was 4.36am, he asked if they should take a break and continue the interview the next day but Osifelo said they should continue with the interview and finish it. This was confirmed by Angisia. There were, however, a number of breaks for Osifelo to smoke and chew betel-nut and have some food. He said he was OK. The interview finished at 11.20 am.

We share, in general terms, the views expressed by the President in his dissenting judgment on this issue as to the undesirability of taking a statement over so long a time and starting at such an early hour of the morning as was the case here. However, each case must be considered in the light of its own circumstances and with regard to the setting in which it was obtained. We draw attention at this point to the Solomon Islands Judges' Rules which were promulgated by the then Chief Justice in 1982. These rules were expressly stated to replace the English High Court Judges' Rules which had been applied up till then in the Solomon Islands. They differ to some extent from the English Judges' Rules. The Chief justice saw and heard the witnesses, including the appellant, give evidence at some length and he was satisfied as to its voluntariness. He also was in a better position than we in this court to assess any element which could have amounted to such unfairness that it should be excluded on that ground. He found none. While we are of the view that looked at overall the Chief Justice was justified in admitting the statement we add that it is a case very near that borderline over which it would be excluded. For passing we express the view that it would be desirable that the Solomon Islands Judges' Rules be reviewed and the position made clear as to when persons in custody may properly be interrogated, and the nature of such interrogation.

The next matter raised was the further ground of appeal added at the hearing in relation to the caution statement based upon s 7 of the Constitution. This issue is discussed by the President in his dissenting judgment. In view of his rejection of the caution statement on other grounds he did not find it necessary to determine the matter. We, however, must consider it. We do so shortly. The formal ground submitted by the appellant's counsel in writing was in the following terms:

'That the First Appellant was subjected to inhuman treatment at the time of interrogation and the subsequent obtaining of the Caution Statement of the 4th August 1992 contrary to s 7 of the Constitution.'

Counsel did not develop this argument. She did not canvass just what treatment it was that the appellant had been subjected to that was inhuman. 'Inhuman' is a strong word and loses none of its strength from the context in which it is used. Section 7 of the Constitution is as follows: 'No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.' We are satisfied that what happened here could not be regarded as inhuman treatment within that section. The Chief Justice rejected the allegations of threats, violence and deprivation of food and rest. 'Inhuman' ordinarily imports brutality, barbarity, cruelty or conduct of a kind not ordinarily found among civilised humans; we do not think what happened here approaches that level of conduct. We add that in our view it would also be necessary for counsel to present argument to satisfy the court that a breach of a section in the Constitution leads to otherwise admissible evidence being excluded; the Constitution itself certainly does not say so. No doubt it would ordinarily be the case that evidence obtained as a result of a breach of the Constitution would also be excluded by the judge on the basis that it was unfairly obtained but it may not follow that every breach of the Constitution necessarily results in evidentiary unfairness.

The third broad ground of this appellant's appeal related to allegations of questionable practice in the course of the investigation, assertions of false and conflicting testimony by Crown witnesses and submissions in respect of there being no eye witnesses of the killing, no proved motive and no body having been found. We do not think there is any substance in these points. Similarly in respect of an attempt to base a ground on the appellant's failure to call witnesses.

Accordingly we are of the view that the appellant Osifelo's appeal must be dismissed.

Fitali

The first ground raised was the same as the first ground in Osifelo's appeal and nothing further need be said on that.

The next ground was also that the Chief justice wrongly admitted the appellant's caution statement. A number of matters were raised at the voire dire including allegations of there being undue delay in terms of s 5(3) of the Constitution in taking the appellant before a court and a failure to bring him before the magistrates' court as soon as practicable in accordance with s 23 of the Criminal Procedure Code. The Chief justice in his ruling canvassed the factual basis of these complaints and was satisfied there was no substance in them. Counsel failed to point to any error on the Chief Justice's part. There were allegations, too, that the appellant was not properly cautioned and that he was threatened and forced to make the confession but we do not think there is any substance to complaints as to how the Chief Justice determined them.

Mr Remobatu for the appellant then went on to submit, in relation to the ruling of the Chief Justice on the voire dire, that he made an error of law in his approach to the onus of proof. He submitted that the Chief justice had proceeded on the basis that the onus was on the defence. We think that this is clearly not so. At the very beginning of the ruling the Chief Justice reminded himself that the prosecution bore the burden of proving beyond reasonable doubt that the caution statements were made voluntarily. He later went on to say in relation to this appellant that if there was a reasonable possibility that the police evidence was not true then, in effect, the statements he had made would not be admissible. We see nothing wrong in that approach and do not consider it shows that the Chief Justice had in his mind put the onus of proving that there was such a reasonable possibility upon the defence.

The next matter urged in the appellant's written submission was that the admission of the caution statements did not mean that their contents were true. In our view the Chief justice was perfectly entitled to accept the contents as truthful and to draw further inferences from them and the other evidence, such as the meeting with Basikona in his village, the going off together in the two canoes, and his plainly false story of the capsized canoe. We think there was ample material upon which the Chief Justice could be satisfied of the appellant Fitali's guilt.

There were other submissions made by Mr Remobatu in relation to there being no eye witnesses, no weapons produced, no motive proved and no body produced. These are all factual issues but as the Chief justice said, the case against this appellant, as against the other two, depended substantially on the caution statements. He was satisfied as to the truth of them and was accordingly satisfied of this appellant's guilt.

Mr Remobatu made a last submission to the effect that the appellant said he had other witnesses but these had not been called at the trial. In answer to the President Mr Remobatu accepted that he had not been told by the appellant who these witnesses were nor what they might say. There is nothing on that point. It follows that Fitali's appeal must be dismissed.

Maefasia

This appellant's original notice of appeal contained a considerable number of points but at the hearing Mr Wasiraro, counsel for Maefasia, handed in a written submission, which he developed orally, which contained only one ground to the effect that the Chief Justice wrongly exercised his discretion in admitting Maefasia's caution statement. He first submitted there were three grounds for urging that the Chief justice should have excluded the statement as being unfairly obtained but during the course of his submission he reduced them to one ground, namely that the appellant had not been properly cautioned when he made the two statements he did, which were on 3 and 5 August. The statement on 3 August was a long statement and covered some 14 pages of handwriting in pidgin. The statement on 5 August was a short one and was added on to the 14th page of the first statement and carried on to a 15th page. The first statement on 3 August which was conducted by Det Senior Serg Angisia had an introduction in which the names of the three police officers involved was given and a statement to the effect that the police were conducting an inquiry into a case in which an old man named Basikona was said to have been in a canoe that sank and he was drowned at Fousiu. The introduction went on to set out the usual caution that if he wished to remain silent he might do so. There were then spaces for the appellant to sign and the police officers to do likewise. The appellant had not signed but the police officers had done so. The body of the statement then followed, in narrative form, in pidgin up to and including two-thirds of page 14. The appellant had signed page 14 as did the police officers; the appellant had also signed pages 3, 6, 8, 9, 11 and 13.

The second statement on 5 August contained no introduction but went straight to the additional material in narrative form. It was signed at the end by the appellant and the three officers.

At the voire dire the appellant raised the issue of force as a result of which he contended the statement was not given voluntarily. He also contended he had not been cautioned at either interview. The Chief Justice in his ruling dealt with the first issue at some length; he rejected the appellant's account, which was, in effect, that he had not said any of the things contained in the statement but that they had been made up by the police and he had been forced to sign. The Chief justice disbelieved his allegations of force being used against him and of his assertion that he was suffering from malaria. He did not, however, specifically deal with the allegation that the caution had not been given.

In his submissions to us Mr Wasiraro pointed out that the appellant had not signed in the allotted space on the first statement and submitted that it should thus be inferred that he was not cautioned. We are not prepared to draw that inference. There are a number of reasons for this. First, all three police officers say the caution was given and the first statement which recorded that the caution was given, though it was not signed by the appellant in the space provided immediately below the caution, was signed by him at the end and also on six other pages. Second, Det Senior Serg Angisia said in evidence that when he cautioned the appellant at the time of the first statement he said he wished to explain his side of the story and that his heart was troubled about it; that after they killed Basikona his mind never settled. This response of the appellant was noted in the Det Senior Serg's notebook and the court record shows that he read from pages 12 and 13 of his notebook. This has a ring of truth about it. Third, Det Senior Serg said that though he noted giving the caution in his notebook on the first interview statement the note was not signed by the appellant but in respect of the second statement though the caution was not included in the record signed by the appellant it was noted in his notebook and the appellant did sign that. It is unlikely that the officer would give the caution on the second occasion and not the first. We add that Mr Wasiraro in his reply to Crown counsel's submission said the appellant did not accept that he had signed the notebook but he, counsel, accepted it was signed. Accordingly, we think that the appellant's statements were properly admitted and we are reinforced in that view by the independent evidence referred to earlier in this judgment where two persons, relatives of the appellant, stated he had told them he had taken part in the killing.

It follows that this appellant's appeal also fails and must be dismissed.

Order

The appeals of all three appellants be dismissed.