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Court of Appeal of Solomon Islands |
IN THE SOLOMON ISLANDS COURT OF APPEAL
| NATURE OF JURISDICTION: | Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J) | |
| COURT FILE NUMBERS: | Criminal Appeal Case No's. 35 & 36 of 2013 (On Appeal from High Court Criminal Case No. 237 of 2012) | |
| DATE OF HEARING: | 10 OCTOBER 2014 | |
| DATE OF JUDGMENT: | 17 OCTOBER 2014 | |
| THE COURT: | GOLDSBROUGH P, HANSEN JA, WILSON JA | |
| PARTIES: | Martin Lele Rocky Kiopala | Norman Lele |
| Appellants | ||
| | - V - Reginam | - V - Reginam |
| | Respondent | |
| Advocates: Appellants: Respondent: | J. Sullivan QC and S Lepe, Sol - Law DPP & M. Suifa'asia, DPP's Office | |
| Key words | Evidence Act ss 136,167 – 162,171 caution statement voir dire. Unfairness. | |
| EX TEMPORE/RESERVED | | |
| ALLOWED/DISMISSED | ALLOWED | |
| PAGES |
| |
JUDGMENT OF THE COURT
35 of 2013
36 of 2013
[1] These are two appeals from a judgment of Mwanesalua J, delivered on 12 December 2013. Because both appeals raise essentially the same points of law, they have been heard together. There is an additional ground in 36 of 2013.
[2] In February 2012, all three appellants were charged with one count of arson of a bulldozer at the Sipo concession area at Vella Lavella, Western Province. Martin Lele and Kiopala were arrested on 9 February 2012 and remanded in custody at the Gizo Police Station. They were interviewed and caution statements were recorded from them. It is common ground that the only evidence against these two appellants was that contained in those caution statements.
[3] On 10 February 2012 Norman Lele reported to the Gizo Police Station. He was arrested and placed in custody. On 11 February 2012 he was interviewed and a statement recorded.
[4] All three appellants pleaded not guilty. Trial commenced on the 21 September in the Magistrates Court at Gizo Western Province.
[5] Following the ruling on a voir dire in 36 of 2013 (Norman Lele) on that date, the matter was adjourned to 13 November 2013. Trial of Norman Lele continued. On 3 December 2013 Norman Lele was acquitted.
[6] On 10 December the voir dire in 35 of 2013 (Martin Lele and Rocky Kiopala) commenced. On 12 December 2012 the magistrate ruled the statements of Martin Lele and Kiopala inadmissible, the Crown offered no evidence and they were acquitted.
The Magistrate's reasons
[7] Essentially the Magistrate found that although both the interviewing officer and the witnessing officer had considered advising all three appellants of their right to legal representation, ultimately they did not give such advice. He considered that such a failure rendered the interviews inadmissible as unfair and involuntary.
[8] In 35 of 2013 he also referred to additional concerns regarding the police evidence that strengthened his view of unfairness.
The appeal to the High Court
[9] In the case of 35 of 2013, the appeal was lodged after acquittal. In the case of 36 of 2013, an interlocutory appeal was lodged following the Magistrate's ruling. Before a decision was made on the interlocutory appeal the trial later proceeded in front of the Magistrate, additional evidence was heard and an acquittal entered.
[10] Both appeals to the High Court raised similar grounds.
[11] In 35 of 2013 it was said the Magistrate erred in law when he did not require the accused to testify on their own behalf as to the impropriety alleged against the police. Secondly, that in the absence of evidence to support the defence case in the voir dire, the learned Magistrate erred when he rejected the admissibility of the record of interview of Martin Lele and Rocky Kiopala. Thirdly, that the Magistrate erred when he ruled against the admissibility of the record of interview of Martin Lele and Rocky Kiopala, citing "a failure to accord the accused/suspect the opportunity to obtain legal advice prior to the interview" as a fundamental omission and a denial of the accused's' fundamental right.
[12] In the case of 36 of 2013, the interlocutory appeal was on the grounds that the Magistrate erred in procedural law in failing to ask for submission on the voir dire at the conclusion of the first Crown witness, and in not allowing the potential second Crown witness to give evidence. The learned Magistrate should have permitted the Crown to fully present its case on the voir dire before making any ruling. Secondly, that the learned Magistrate erred in law when he ruled inadmissible the record of interview of Norman Lele on the basis of a failure to give an opportunity to the respondent, Norman Lele, whether or not he would prefer to have legal representation during the interview.
The High Court ruling
[13] The Judge did not specifically address the issues of unfairness and involuntariness. He noted that there is no right in the Solomon Islands for legal representation until the person has been charged. Following charge, that right is guaranteed under s 10(2) (d) of the Constitution. He said that the learned Magistrate did not refer to ss 169 to 172 of the Evidence Act 2009 of his ruling. He concluded:
The manner in which the Learned Magistrate acted in selecting the prosecution witness to be called and which one was not to testify; prematurely terminate the prosecution case; and failing to publish detailed reasons for his ruling as he undertook to do in Court does not appear to advance justice.
[14] In the circumstances, he set aside the ruling on the voir dire; quashed the acquittal of the respondents and ordered that matter be heard again by a differently constituted Magistrate's Court.
This appeal
[15] The amended written notice of appeal in both cases is a lengthy document. Essentially, it is said the Judge erred in law in ruling there should not have been advice to the appellants that they were entitled to legal representation and that there were other grounds relating to the treatment of the appellants that supported a view of unfairness. Secondly, that there were adverse findings of credit against the two police witnesses and evidence to support the conclusion of the magistrate that the appellants had not consented to their respective interviews voluntarily. It was also stated that the Magistrate clearly had the provisions of ss 169 to 172 of the Evidence Act in mind when delivering his ruling, namely, whether it would be unfair to the appellant to admit the record of interview. Finally, in 36 of 2013 there was a further ground that the Notice of Appeal should not be treated as an appeal against the verdict of acquittal, and should be treated as an appeal on a question of law only, not affecting the verdict of acquittal.
Submissions
[16] We were advised by Mr Sullivan that the question of whether or not an accused person in the Solomon Islands should be told of their right to legal representation had not been determined in this Court.
[17] The appellant's submission was that the right to legal representation was inextricably linked to an accused person properly determining whether or not to exercise the right to silence. It was accepted that there is no express provision in any legislation or Solomon Islands authority as to the existence of such a right, but Mr Sullivan submitted the requirement should be elevated to a right under the provisions of fairness contained in the Evidence Act. He submitted it should apply in all cases, but did concede that in some minor cases, such as traffic offences, there would be no need to advise of the right to legal representation. He did not develop his submission as to where this Court should draw any such dividing line.
[18] Mr Sullivan referred to a number of authorities, but importantly the decision of Muria CJ in R v Kiaviri [1997] SBHC 103 where the Judge cited from R v Fitali CRC 39 of 1992 (HC) as follows:
I shall consider the case against each of the accused on this voir dire. But before I do that I think it is necessary that I point out that the police evidence of confessional statements allegedly made by the accused having been challenged, it is for the prosecution to make me sure that those confessions were made by the accused and that they were made voluntarily. The prosecution bears the burden of proving that beyond reasonable doubt. If at the end I have a slight doubt, slight though it may be, I should exercise my discretion to exclude the confessional statement.
[19] He further referred to the ruling on a voir dire of Goldsbrough J (as he then was) in R v Iro [2005] SBHC 8 (Admissibility Ruling of June 2005), referred to with approval by the Magistrate in his ruling. There the Judge said:
There is no particular right, it seems to me, to have a lawyer present during an interview. But to consult a lawyer at this stage in proceedings is a well-established rule. The right to consult a lawyer at this stage is inextricably connected with the right to silence that is reflected in the words of the caution. It is not helpful and may well be taken by some as mischievous to suggest that the interview take place first and the lawyer can give advice at a later stage... a suspect should know that he has a right to remain silent and is entitled to legal advice on that.
[20] Mr Sullivan emphasised the Judge's finding on the prosecution evidence on the voir dire, and submitted that the charge of arson carried a maximum sentence of life imprisonment, which was a circumstance that indicated the need to be scrupulous when it came to questions of fairness.
[21] As to the Crown's submission that the Magistrate should have required the accused to give evidence, he stressed the right to silence and said the Magistrate in the case of 35 of 2013 gave good reasons why there was little point in hearing from the second police officer.
[22] The Director submitted that there is no statutory right to have such advice until an accused person has been charged. He said that such a right is not in the Judges Rules, promulgated by the Chief Justice on 6 July 2007.
[23] While accepting the right of silence of an accused person extended to a voir dire, he submitted there are some circumstances where it would be appropriate for an accused person to be required to give evidence on a voir dire. He said it is normal practice in the Solomon Islands for an accused person to give such evidence, and went so far to submit at one stage that the Crown had an unfettered right to require an accused person to give such evidence. He retreated from that submission and said, while accepting it was a fine line, this was a case where the accused appellants should have been required to give evidence.
[24] In the written submissions in 36 of 2013, the Director stated:
[14] We share the view of his Lordship in the matter of R v Auga, as referred to in the appellant's submission (para 7, page 2 – submission by appellant). That is more so for a juvenile offender.
[15] However, it is a good guideline and important for investigators to take note of and remind themselves by it.
[25] Finally, he submitted that the evidence was insufficient to allow the learned Magistrate to conclude the statements were obtained in circumstances of unfairness and involuntariness as to render them inadmissible.
[26] He did accept that the appeal in 36 of 2013 was an interlocutory appeal only, and did not seek the setting aside of the verdict of acquittal, a decision not made when the appeal was lodged.
Decision
[27] We will deal with the approach to voir dires generally, and then turn to the specifics of these two appeals.
[28] However, before doing so it is necessary to make some general comments. The first relates to appeal 36 of 2013. The DPP advised that he determined to proceed with the trial in front of the magistrate even though a ruling had not been obtained on the Crown's interlocutory appeal. It may be that there was some pressure because an expatriate Magistrate was leaving the jurisdiction, although we have no evidence of that. However, we struggle to see the efficacy of proceeding with a trial in circumstances where an unsuccessful appeal may well have made the trial a complete waste of time. In our view, in circumstances similar to those applying here, it will almost inevitably be a better course to obtain the ruling on the appeal before proceeding with the trial.
[29] The second point we would make also applies to 36 of 2013. As the Director was bound to concede, the appeal lodged was an interlocutory appeal long before a verdict of acquittal was handed down. It cannot, therefore, be an appeal against acquittal, and the learned High Court Judge exceeded his jurisdiction in quashing the acquittal and ordering a retrial. On that ground alone, the appeal in 36 of 2013 must succeed.
[30] Finally, it is necessary on an appeal for a Judge to rule on the critical matters before that Judge. In this case it appears to us that the Judge has not addressed the evidence relating to unfairness and involuntariness and made a ruling on them. That was central to this case.
[31] The admissibility of confessions is governed by ss 167 to 169 of the Evidence Act 2009. For convenience we set them out:
Definition of confession
167. A confession is an admission made at any time by a person accused of an offence stating or suggesting that the person committed the offence.
Admission by accused in criminal proceedings
168. (1) This section applies only to a criminal proceeding and only to evidence of a confession made by an accused –
(a) to or in the presence of an investigating official who was at the time performing functions in connection with the investigation of the commission or possible commission of an offence; or
(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of an accused should be brought or should be continued.
(2) Evidence of the confession is not admissible unless the court is satisfied beyond reasonable doubt that the admission was voluntary.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account –
(a) any relevant condition or characteristic of the person who made the confession, including age, personality, language and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the confession was made in response to questioning –
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
Court may refuse to admit confession
169. In a criminal proceeding, the court may refuse to admit evidence of a confession, or refuse to admit the evidence to prove a particular fact, if –
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
[32] Also relevant to this appeal are ss 136 and 171(c), which read:
Court's discretion to exclude evidence
136. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Cautioning of persons under arrest
171. (1) For the purposes of this Part, evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if –
...
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
[33] We turn to consider whether the right contended for by Mr Sullivan exists in the Solomon Islands. Clearly, the only statutory right to be advised of the right to legal representation is that contained in s 10(2) (d) of the Constitution, which gives a right to legal representation following charge.
[34] In our view, the statement of Goldsbrough J (as he then was) in R v Iro cited at [19], does not go as far as Mr Sullivan submitted. The opening sentence of the citation makes that clear beyond peradventure.
[35] The fact that such a right does not exist is also supported by s 171(c) of the Evidence Act set out above. That piece of legislation is relatively new, and if it was intended to create a right to legal representation during an interview, we consider the legislation would have specifically stated it in that Act. All the section is requires is that a caution must be administered. Failure to do so means the statement would be improperly obtained.
[36] Nor are we attracted to Mr Sullivan's suggestion that in all cases, to make the right to silence meaningful, advice as to the need for legal representation to explain that right to silence, turns what may be described as a sensible rule into a right. The sliding scale he suggests, where it would apply only to more serious offending, is demonstrably flawed because of the difficulty of drawing any sensible or practical delineating line between where it would be a right and where it would not.
[37] As we have said we concur in the statement of Goldsbrough J, which in our view simply states that whether or not the right to legal advice should be given before the taking of a statement is circumstance dependent. (We note at [24] the Director also accepted the judge's statement). If the circumstances are such, after a careful evaluation of the facts, that the right to silence is compromised by the failure to give the additional advice regarding legal representation, then it may well follow that any confession contained in the statement will be tainted by unfairness and involuntariness. But that is an assessment to be made on a case by case basis, and not as a sweeping general rule in the absence of support from the legislation or the Judges Rules. However, from a practical point of view it would be sensible for police officers in every case to follow their training and advise suspects that they are entitled to obtain legal advice before, and during, interview.
[38] We wish to make it absolutely clear that the right to silence afforded an accused person extends to voir dires. Despite the Director's submissions, there will be no circumstances where an accused person could be compelled to give evidence in a voir dire. We accept his submission that it is the normal practice in a voir dire for an accused person to give evidence regarding the alleged impropriety that renders the statement unfair and involuntary. But there will be cases, such as this, where the foundation of a submission of unfairness and involuntariness can be established by cross-examination of the relevant police witness. However, judicial officers will need to be alert to the fact that the absence of evidence from an accused person may count against proof of the alleged impropriety. Again, that is a matter to be determined on a case by case basis.
[39] We accept the Director's submission that in the normal course of events the prosecution should be entitled to call all their witnesses on the voir dire. However, this is subject to s 136, set out above. In 36 of 2013, the Director complains that the witnessing officer was not allowed by the Magistrate to give evidence. At paragraph 4 of the written submissions, the Director points to a number of factors that the witnessing officer could have given relevant evidence on.
[40] The learned Magistrate noted that the view he formed was based on the unequivocal evidence of the interviewing officer that he did not advise the appellants of their entitlement to legal advice and further evidence could not change that. In other words, it would be evidence that fell under s 136 above. The evidence pointed to by the Director could not have taken that point any further. While it would be best for judicial officers to hear all of the evidence proffered by the prosecution on a voir dire, the Magistrate in this case was justified in not hearing that further evidence.
[41] To summarise:
- An accused person does not have a right to be advised of his right to legal advice before a caution statement is taken.
- There will be circumstances where it is appropriate for such a warning to be given to ensure that the right to silence is meaningful.
- It is best practice for police officers to advise suspects of their entitlement to legal advice before undertaking any caution statement.
- The right to silence accorded to accused persons extends to voir dires, and there are no exceptions.
- The discretion to exclude evidence on a voir dire is the same as at trial, and governed by s 136 of the Evidence Act.
These appeals
[42] In both appeals the Director complains of the adequacy of reasons given by the learned Magistrate. We consider the reasons adequate. We also note that in 35 of 2013 at page 41 of the record of appeal, the Magistrate stated, when dealing with additional matters in that case other than the failure to give advice with regard to legal representation: "I will publish reasons in full as required". We note no such request was made.
[43] We are satisfied both appeals should be dismissed. We have already indicated that the Judge exceeded his jurisdiction in 36 of 2013 to quash the acquittal and order a retrial. But leaving that matter aside, we are satisfied that in this case fairness required the police officers to advise all appellants of their entitlement to legal representation. It is clear that such advice was a matter that exercised the minds of the police officers (see for example page 14 of the Amended Record of Appeal in 36 of 2013). There was also evidence that police training was to tell an accused they had right to legal representation and that should be before interviewing the accused (again, see page 14 of the Amended Record of Appeal in 36 of 2013).
[44] We have said that whether or not advice as to legal representation should be given has to be determined on the circumstances of any individual case. One of the powerful circumstances for consideration will be the seriousness of the charge faced, and the possible sentencing consequences. In this case the three appellants faced the very serious charge of arson, which carries a maximum sentence of life. We are satisfied in the circumstances of this case, particularly given the police training that the officers turned their mind to giving such advice and the seriousness of the charge, that the advice should have been given.
[45] In the case of 35 of 2013, there were the additional factors referred to by the learned Magistrate. Taking all these matters into account, we are satisfied the Magistrate was right to conclude that he was not satisfied beyond reasonable doubt that the admission was voluntary, and it would be unfair to use that evidence.
[46] Accordingly, both appeals are allowed. The judgments in the High Court are set aside. The verdicts of acquittal are reinstated.
[47] We are satisfied we have jurisdiction to deal with costs in the High Court, and award costs to the appellants for the High Court hearing. There will be a certificate for Queen's Counsel. Section 32 of the Court of Appeal Act CAP.6 makes it plain we have no jurisdiction to award costs in this Court, and the applications for costs of the appeal are refused.
...........................
Goldsbrough P
President of the Court of Appeal
...........................
Hansen JA
Member of the Court of Appeal
...........................
Wilson JA
Member of the Court of Appeal
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