R v Baefaka [1983] SBHC 9; [1983] SILR 26 (9 February 1983)

[1983] SILR 26

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 15 of 1982

R.

-v-

BAEFAKA

High Court of Solomon Islands
(Daly C.J.)
Criminal Case No. 15 of 1982

9th February 1983

Confession - admissibility - unlawful detention - whether confession "voluntary" - discretion to exclude - section 5 Constitution - section 23 Criminal Procedure Code.

Facts:

The accused a boy of 15 years appeared at an identification parade on 31st October 1982. Subsequently he was detained in a cell by himself until at least 6th November, 1982. He was first taken to court on 9th November 1982. On 6th November 1982 he made a confession statement. The admissibility of this statement was challenged.

Held:

As there was no evidence of "reasonable suspicion" by the detaining officer that the accused had committed an offence, the detention was unlawful under section 5(1) of the Constitution. It was also unlawful under section 5(2) of the Constitution as the accused was not informed of the reason for his detention. Further the continued detention of the accused was unlawful for the purposes of section 5(3) of the Constitution as he was not "brought without undue delay before a court" as he could have been taken before a court in the week preceding his confession. The unlawful detention, on the facts of the case, was such that it was likely to sap the free will of a 15 year old boy. There was a doubt as to whether the statement was voluntary and it must be excluded. Further as the detention was unlawful a statement obtained by means of it was unfair and of a category of unfairness which should lead the court to exclude the statement in the exercise of its discretion.

Ruling accordingly.

Cases considered:

Ibrahim -v- R (1914) A.C. 599
R. -v- Priestley (1965) 51 Cr. App. R. 1
Houghton -v- R (1978) 68 Cr. App. R. 197
R. -v- Hudson (1981) Cr. Law Review 107
R. -v- Reid (1982) Cr. Law Review 514
R. -v- Sale (1979) Cr. Case No.2 of 1979
R. -v- Sang (1979) 2 All E.R. 122

For Crown: L. Holt
For Accused: F. Mwanesalua

Daly CJ: At this point in the trial objection has been taken to what is said to be a confession statement made by the accused to police officers and written down by them on 6th Nov. 1982. The statement has been made Item K in this trial.

The objection is put in two ways. First it is said that the confession statement was not voluntary and therefore must be excluded.

Second, it is said that this Court should in its discretion exclude the statement on the ground that it was unfairly obtained.

I bear in mind that, the question as to the voluntariness of the statement having been raised, it is for the prosecution to make me sure that the statement was a voluntary one before I can admit it. On the issue of the exercise of the discretion I must consider all the factors, bearing in mind further that if I am left in a reasonable doubt, I should exercise my discretion to exclude in favour of the accused.

There are considerable differences in the evidence on the circumstances in which Item K came into existence but there are some facts which are not in dispute. These are that the accused who is aged 15 years was present at in identification parade at TASIFARONGO plantation with other labourers of the plantation. Subsequent to this parade, at which no one was identified, the accused was brought to Honiara on 31st October 1982, a Sunday, in a police truck with three other labourers. On arrival at Central Police Station the accused was placed in a cell. The accused was put in a separate cell to the other labourers and remained there until at least 6^th November 1982, a Saturday, when he was interviewed by Sgt TALU and at least one other officer and the statement Item K came into existence. The accused said that whilst in the cell he was given four pieces of biscuit and some Taiyo fish twice a day. This latter evidence has not been challenged by the prosecution. It is now agreed that the accused was first taken before a court on the 9th November 1982. No warrant existed for the detention of the accused until that date. It is further not disputed that at no stage was the accused informed why he was detained.

The first issue which arises from those admitted facts is, was the accused arrested unlawfully or perhaps, better expressed, was the initial detention of the accused on 31st October unlawful? Section 5 (1) of the Constitution provides: -

"No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases, that is to say -

(f) upon reasonable suspicion of his having committed..... a criminal offence under the law in force in Solomon Islands;"

Section 5(2) of the Constitution provides: -

"(2)Any person is arrested or detained shall be informed as soon as reasonably practicable, and in a language that he understands, of the reasons for his arrest or detention."

The authorization by law for the purposes of section 5(1) of the Constitution is contained in the Criminal Procedure Code ("the CPC"). Section 18(a) of the CPC empowers a police officer to arrest without a warrant "any person whom he suspects upon reasonable grounds of having committed a cognisable offence Murder is such an offence." Section 10 of the CPC requires the police officer making the arrest to "touch or confine the body of the person to be arrested."

Applying those provisions of law to the facts of this case, there is no evidence that on the 31st October, 1982 the police officer detaining the accused suspected upon reasonable grounds that the accused had committed the offence of murder. That officer, whoever he was, was therefore not empowered by section 18(a) of the CPC to arrest the accused. Even if he were so empowered, as the accused was not informed of the reason for his arrest or detention, then there was a breach of Section 5(2) of the Constitution. Nothing turns on section 10 of the CPC as it is clear that the body of the accused was confined. Thus it follows that by virtue of the foregoing matters the initial detention of the accused was unlawful.

Did the detention continue to be unlawful? Section 5(3) of the Constitution provides: -

"Any person who is arrested or detained .....

(b) upon reasonable suspicion of his having committed, ... a criminal offence under the law in force in Solomon Islands,

and who is not released, shall be brought without undue delay before a court...."

Section 23 of the CPC provides: -

"23.when any person has been taken into custody without a warrant for an offence other than murder or treason, the officer in charge of a police. station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate Magistrate's Court within twenty four ,hours after he had been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognisance with or without sureties, for a reasonable amount to appear before a Magistrate's Court at a time and place to be named in the recognisance, but where any person is retained in custody he shall be brought before a Magistrate's Court as soon as practicable:

Provided that an officer of or above the rank of sergeant may release a person arrested on suspicion on a charge of committing any offence, when, after due inquiry, insufficient evidence, is in his opinion, disclosed on which to proceed with the charge."

In relation to this accused who is under eighteen years of age there are also provisions which relate to his detention in the Juvenile Offenders Act 1972 sections 5, 6 and 7.

It has been argued by the learned Director of Public Prosecutions that the terms of section 23 of the CPC are such that it would not apply to offences of murder and treason the requirement that a person be brought before a Magistrates' Court. On close analysis of the terms of that section I do not find myself in agreement with that argument. The early part of the section deals with the powers of a police officer in charge of a station when a person is brought before him in custody but not on warrant. I do not consider it necessary to analyze in detail those powers from which persons against whom murder and treason are alleged are accepted. It is sufficient to refer to the words "but where any person is retained in custody he shall be brought before a Magistrate's Court as soon as shall be practicable" at the end of the body of the section. As persons who are taken into custody without warrant for an offence of murder or treason cannot be released on bail by the officer in charge of the police station, if follows that they are retained in custody and must be brought before a Magistrate's Court as soon as shall be practicable.

Even were this not so, I should be obliged to construe this section to conform with section 5(3) (b) of the Constitution (see Section 5(2) of the Solomon Islands Independence Order 1978) and to hold that it embodied a requirement to bring any person detained "without undue delay" before a court. In view of my earlier conclusion, however, I find that there is no conflict between the provisions I do not intend to deal further with the provisions of the Juvenile Offenders Act, 1972 except to observe that the clear intention of those provisions is to impose more stringent conditions on the detention of young persons than in the case of adults.

To turn again to the facts of this case, the accused was detained on a Sunday and first appeared before a court nine days later. He was detained at Central Police Station which is a short distance away from the Central Magistrates' Court where at least one court and usually two courts are sitting every working day. No evidence has been adduced that it was not practicable to bring the accused before that court on Monday the 1st November or any day in the week before Saturday 6th November, 1982. I find therefore, in the absence of such evidence, that the detention of the accused that week was also unlawful.

What is the effect then, on the submissions as to the admissibility of the statement Item K of these findings? The first issue is, have the prosecution made me sure that the statement Item K was one made voluntarily? If I answer that question no, I must exclude it in law (Ibrahim v. R (1914) A.C. 599). No question of discretion arises. In this case it is submitted that on the undisputed facts I cannot be sure that the statement was not obtained by oppression. This word "oppression" was considered by Sachs J. in R. v. Priestley (1965 51 Cr. App. R. 1 where he said: -

"this word... imports something which tends to sap and has sapped the free will which must exist before a confession is voluntary. Whether or not there is oppression in the individual case depends upon many elements .... they include such things as the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or old man, or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused person is a tough character and an experienced man of the world."

It follows that each case must be decided on its own facts. This is illustrated by the case of Houghton (1978) 68 Cr. App. Rep. 197. In that case the appellant had been detained in police custody beyond the time when he should have been taken before a magistrate's court. However the trial judge had allowed evidence of confessions made after that date to be given. Lawton L.J. of the English Court of Appeal said at page 206:

"It follows, so it seems to us, that when considering whether to exercise his discretion to disallow alleged confessions on the grounds of unfairness, a judge has to ask himself what led the accused to say what he did. If, for example, on the evidence, there were any reason to think that an accused who had been improperly kept in isolation had made admissions because he could not bear to be alone any longer, then there would be good grounds for disallowing the evidence. There would be even stronger grounds for the exercise of discretion if there was any evidence going to show that the police had improperly kept the accused in isolation with the object to getting him to crack under the strain of being alone."

and further: -

"now was there any evidence that he had acted as he did on the Wednesday because of the strain of his isolation. Mr Blom-Cooper asked us to infer that what he did that day was brought about by his isolation. We do not do so. Had Houghton been unfamiliar with police methods or of limited intelligence or there had been evidence that, he had asked for, and had been denied the advice of a solicitor, we might have done so, Houghton, however, knew a good deal about police procedures and because of his education and social background he was not likely to have been overawed by a police officer as senior as Commander Howard. He acted as he did because he thought that the police had agreed to grant him and s6me of the co-accused immunity from prosecution."

Perhaps it is appropriate to stress the passages in which it is said "Had Houghton been unfamiliar with police methods or of limited intelligence" the court might nave been prepared to infer that Houghton made his confession because of his isolation, although with respect it seems to me that a finding of oppression due to wrongful detention in isolation would go to the voluntariness of the statement rather than the discretion to exclude on the grounds of unfairness and the established law is that a failure to show that a statement is voluntary must lead to its exclusion.

Other courts have taken a rather more stringent line where there has been manifest illegality in the dealings between the police and the accused. In R. v. Hudson 1981 Cr. Law Rev. 107 the appellant had been detained for five days at a police station and intensively questioned. He made oral admissions and finally a written statement. The trial judge allowed the admissions and confessions to go in evidence. The English Court of Appeal held that the detention was unlawful, inter alia, on the basis of failure to bring the appellant before a court of law and that the very serious factor of unlawfulness and the circumstances in which the confessions were given led the court to conclude that they were obtained by oppression.

According to para. 1377a Archbold 40th Edition the court went on to say that even if the confession had been voluntary would have nonetheless it would have nonetheless concluded that they were due in a large part to the detention. As that detention was unlawful and continued to be so for a considerable time the detention was unfair.

In R. v. Reid (1982) Cr. L.R. 514, a case at first instance, again the accused was detained after the time he should have been brought before a court. As to a statement given aft that time the Crown Court held that as the accused had been detained beyond "the practicality point" it was not admissible. The ground for so holding is not clear from the report.

Last but by no means least is the case of R.v. George SALE heard as Criminal Case No.2 of 1979 by this court. In that case the accused was not properly arrested but was detained in custody on 12th December 1978. He remained in a cell until the evening of 14th December 1978 when he made a cautioned statement containing admissions having earlier denied guilt. Renn Davis C.J. held that retention of the accused in custody after making the earlier statement containing denials was "clearly an inducement to him to confess. All the more so was this continued unlawful confinement...." The learned Chief Justice also held that "the accused's confessions were made because of his continued confinement in custody from 4 p.m. of the 12th December 1978" and hence the confession was not made voluntarily and was therefore inadmissible.

I stress that each of these cases was clearly decided upon its own facts. I must consider the facts of this case. The accused is a young person aged 15 years. Although he is physically developed, having heard and seen him in the witness box, I formed the view that he is not particularly mentally well developed even for 15 years of age and not of robust temperament. He was brought from his place of work, separated from his friends and, so far as I am aware, kept in solitary confinement for six days. If his account of his food is correct, he was far from well fed. Again on the prosecution case, he was never made aware of why he was detained or what was expected of him. There is no suggestion that he has the experience, education or intelligence to understand police procedures. Indeed he cannot write or read but can merely sign his name. Accepting the prosecution case that at the end of six days the particular accused was brought from his cell and invited to make a statement, can I be sure that that statement was voluntary? Can I be sure that it was not a fact looming large in the mind of a young man of 15 that for the last six days he had been detained in a cell without access to friends, relatives or a court that led him to decide to make a statement? Can I be sure that this detention in this case had not in fact sapped the free will of this accused? It is clear to this court, as it has been to other courts that continued detention of this kind, tends to sap the free will even of adults. Considering all the circumstances I am left with a doubt as to whether that statement was in fact voluntary even on the prosecution evidence. It is therefore my duty to exclude Item K.

I should add, as did the English Court of Appeal in Hudson (ab. cit) that even were this not the case, I would have found that the detention over a considerable period of time must have been a large factor in making the accused decide to confess. As this detention was unlawful as against the express terms of three subsections of the Constitution, our supreme law, it was also unfair and of a category of unfairness which should lead me to exercise my discretion to exclude the confession obtained by means of it. The exclusion of a confession obtained by improper or unfair means remains within the discretion of the trial judge (see R. v. Sang [1979] UKHL 3; (1979) 2 All E.R. 1222) and this, in my judgment, would be a proper case for exercise of that discretion.

I therefore rule that Item K is not admissible in evidence.