Regina v Fitali [1993] SBHC 11; HCSI-CRC 39 of 1992 (19 October 1993)

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Hearing:
14, 15, 16, 19, 20, 21, 22, 23, 26, 29, 30 July
2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 16, 23, 24, 25, 26, 27, 31 August
1, 2, 3, 6, 7, 8, 9 September
Ruling: 19 October 1993

R. B. Talasasa for Prosecution
J. Remobatu for Peter Fitali
J. Wasiraro for Gegeo Maefasi
Maelyn B. Samuel for Fred Osifelo
Reginald Teutao for Jonh Itea –

MURIA CJ: During the course of the trial objections were taken to the tendering of the records of interviews which contain admissions by the accused on the basis that the admissions in those interviews were obtained involuntarily and therefore were not admissible. It is also contended by the defence that the admissions were obtained in breach of the Constitution, Criminal Procedure Code and the Judges Rules.

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 statements.

I should also feel it necessary at this stage to take heed of the warning of the danger of convicting the accused on the basis of the evidence contained in a confessional statement which was allegedly made by the accused while in police custody, and, particularly, where such confessional statement is disputed by the accused.

I should also bear in mind the danger presented by a disputed confessional statement, the making of which is not reliably corroborated.

With those considerations and warning now in my mind, I shall now turn to consider the case against accused on this voir dire.

This accused was the person who was said to have accompanied Basikona who was alleged to have been murdered at Ata’a sea on 19 December 1990. This accused was said to be the master-mind of the alleged murder.

Following information given to police, Fitali was arrested at the Point Cruz Wharf in Honiara at about 1.00 pm on 3 August 1992. He was taken to Naha Police Station and then to Central Police Station where he was kept over night.

The accused was taken to Rove in the morning at 8.00 am on 4 August 1992. The accused has been kept in Rove custody ever since.

According to the accused he was never taken before the Magistrate’s Court after his arrest until some four days later after being arrested. If that is correct, then it would be the 7th or 8th August 1992 when the accused was first brought before the Magistrate Court after his arrest on 3rd August.

Unfortunately, the accused’s story that he was at Rove custody for four days before being taken to the Magistrate’s Court for the first time after his arrest cannot be true. The Warrant for his remand was issued on 4th August 1992 by the Magistrate and not four days later after being remanded in Rove as he claimed.

The other argument raised by Mr. Remobatu also was that if the accused was taken before the Magistrate Court at 4.00 pm on 4 August 1992, it was done so after 24 hours of the accused’s arrest. Counsel argued that from 1.00 pm on 3 August 1992 to 4.00 pm on 4 August 1992 was more than 24 hours. As such counsel argued that the accused’s detention was unlawful and the caution statement extracted from the accused within that period should not be admitted.

In support of his argument Mr. Remobatu relied on section 5(3) of the Constitution and section 23 of the CPC. Counsel further sought to rely on the case of R -v- Baefaka (1983) SILR 26.

I set out the provisions of the law referred to by counsel. Section 5(3) of the Constitution is as follows:

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, 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;.......”

“23. When any person has been taken into custody without a warrant for an offence other than murder or treason,

This accused is charged for murder and the question of bringing him before the court “without undue delay” after being arrested or detained is just as applicable to him as it is to an accused who is charged for some other offences.

It is worth observing, however that the Constitution protects an accused person from “undue delay” in bringing him before the court. What is ‘undue delay’ depends on the circumstances of a particular case. There may be an occasion when a ‘delay’ cannot be said to be ‘undue’. Such a delay may occur where an accused is arrested at a very remote place and it takes more than one day to bring him to the nearest Magistrate (if there is any available). That cannot be said to be ‘undue delay’.

The ‘undue delay’ referred to under the constitution is a delay that cannot be justified on given facts.

In section 23 of CPC, the words used are “as soon as practicable”. The accused who is detained is to be brought before the Magistrate Court “as soon as practicable” is a question of facts, depending very much on a given set of circumstances in a particular case.

In this case, the accused was arrested in the afternoon of 3/8/92 at the Point Cruz Wharf, taken to Naha Police Station and then taken to Central Police Station where he was kept overnight.

It was not clear at what time in the afternoon of the 3/8/92 was the accused arrested. The accused was not sure of the time but he put it at 1.00 pm. Detective S/Sgt. Kola gave evidence that the accused was arrested at 5.00 pm on 318/92. For the sake of the argument put by Counsel for the accused, I will decide whether the court should accept the time as put by the accused or that put by D/S.Sgt. Kola.

The evidence has clearly demonstrated that the accused’s sense of time cannot be relied upon. He did not know what time on 3rd August when he was arrested. He said, it was sometime in the afternoon, might be about 1.00 pm. He did not even remember the month until he was reminded that it was 3rd August 1992 when he was arrested at the wharf. The accused did not know how long after his arrest before he was taken to the Magistrate Court. When asked further about that, the accused stated that he was taken before the Magistrate after 4 days being at Rove, although he stated in response to the court’s question that he was taken to the Magistrate’s Court after one week he was taken to Rove custody.

There are other evidence clearly showing the accused’s lack of charity and consistency with time. I do not need to recite them all.

I do not believe the accused when he said he said he was arrested about 1.00 pm. I accept the prosecution evidence that the accused was arrested in the afternoon of 3/8/92 and the likely time of that arrest was toward the latter part of the afternoon. The time put by D/S. Sgt. Kola was 5.00 pm which I am inclined to accept as correct.

Having said that, it cannot be said to be more than 24 hours before the accused was taken before the Magistrate because the accused was taken to the Magistrate Court immediately after the interview finished which was at 3.00 pm on 4/8/92.

I reject the submission by Counsel that because the accused was taken before the Magistrate for the first time at 4.00 pm on 4/8/92 that it was already 24 hours after the accused’s arrest at 1.00 pm on 3/8/92.

Further, it must be borne in mind that the accused had been arrested and detained for murder and the requirement of the law in that he be brought before a Magistrate’s Court “as soon as practicable” and not as counsel submitted as “within 24 hours”. Section 23 CPC clearly recognises the gravity of offences such as murder or treason as compared to other offences. A person who is detained for an offence other than murder or treason is the person who must be brought before the Magistrate’s Court within 24 hours of his being taken into custody and if that is not practicable, then he must be released on conditions as the court may imposed on him.

In this case, the accused was arrested for murder in the afternoon of 3/8/92 taken into custody over night and brought before the Magistrate’s court in the afternoon of the 4/8/92. I cannot see how a complaint of “undue delay” or that the accused was not brought before the Magistrate’s Court “as soon as practicable” can be sustained in such a situation.

The case of R -v- Baefaka (Supra) the court recognised the application of section 23 of the CPC on the question of bringing an accused charged with murder before the Magistrate’s Court “as soon as practicable”, not within 24 hours as Counsel suggests in this case. The facts in R -v- Baefaka’s case are quite distinguishable. In that case, the accused Baefaka was arrested and kept in custody for murder on Sunday 31 October 1982 and was not brought before the Magistrate Court until 9 November 1982. The court found that the detention of the accused that week was unlawful. It was observed by the court that the Police could have brought the accused before the Magistrate Court on the Monday 1 November 1982 or on any day of during that week since the Magistrate’s Court usually sat every working day. The confessional statement was excluded in that case.

On the complaint of delay based on section 5 of the Constitution and section 23 of CPC, the case of R -v- Baefaka (supra) clearly shows that counsel’s argument in this case cannot succeed.

The next attacks by Mr. Remobatu against the admission of his client’s confessional statements are that the accused was not cautioned before he was interviewed and that the statements were obtained from the accused by threats or force.

The accused’s version is that he was taken to the CID Office at Rove on the first occasion which he said it would be the 4th or 5th August 1992 to be interviewed. Present were D/S.Sgt. Sau, D/S.Sgt. Kola, D/Sgt. Rafita and the accused Fitali.

It was alleged by the accused that it was not explained to him of the nature of the interview nor did the Police caution him before they interviewed him. At the end of the interview, the police asked him to sign. As he could not write, an ink-pad was brought to the accused who then put his right thumb onto the pad with the help of D/S.Sgt. Kola and then onto the paper. The accused remembered that on that day (4/8/92) he put his thumb prints two times on two papers.

The accused agreed he gave his true story to Kola but that it was not until the sixth time he was taken to the CID Office that he gave his story to D/S.Sgt. Kola. When asked if he gave his statements to the police on 4th and 13 August 1992, the accused said that D/S.Sgt. Kola might have taken down his story on 4th and 13th August 1992 but he was not sure.

Later the accused, in re-examination, said that he gave his story to D/S.Sgt. Kola three times during which times, he said he was not cautioned. On those three occasions, the accused said he put his thumb(r) prints on the papers. However, the accused agreed he also put his thumb (r) print in D/S.Sgt. Kola’s Diary Book.

Having been shown the statements of 4th and 13th August 1992, and 8/9/92, the accused said he only put his thumb (r) prints two times.

The accused agreed he was shown the sketch of canoes but said that before the police asked him questions about the canoes, they did not caution him nor did the police explain to him why they were to ask him questions about the canoes.

The accuse agreed he put the “Xs” on the sketch of his canoe to make where he and Basikona sat after D/S.Sgt. Kola asked him to do so. The accused stated that it was D/S.Sgt. Sau put the “Xs” to mark the positions of the other accused in the other canoe and that D/S.Sgt. Sau forced the accused to do accept they were correct.

The accused’s story of threats and force was that D/S.Sgt. Sau was talking harshly at him and that if he was not telling the truth, that the law would “kill” him. According to the accused, D/S.Sgt. Kola and D/Sgt. Rafita were not doing anything to the accused apart from taking down his story.

The accused confirmed that he was given smoke, betel nuts, bread and taiyo because he wanted to smoke, and chew betel nut and eat.

The prosecution evidence in that the accused was interviewed on 4th and 13th August and 8th September 1992. On each of those occasions, the accused was explained to him the nature of the interviews and that the accused was properly cautioned before each of the interviews.

It is further stated by counsel for the prosecution that the accused understood the caution and that the accused gave his story willingly, without threats or force.

D/S.Sgt. Sau, D/S.Sgt. Kola, D/Sgt. Rafita and P.C Goulolo gave evidence that at no time did they or any of them threaten or force the accused to give his story.

The recording officer was D/S.Sgt. Kola who conducted the interview with the accused. Pidgin was used as that was the language clearly understood by the accused and the recording officer.

D/Sgt. Rafita is the accused’s son in custom as he is the son of the accused’s brother. D/Sgt. Rafita stated that he was present during the interviews on 4th and 13th August 1992 and that he nor the other officers ever used any force or threat against the accused. The accused willingly gave his story and willingly put his thumb prints on the records of interviews.

I bear in mind the all-too-often remarks that police witnesses are often practiced witnesses and that there is a need to closely scrutinise their evidence. In this case I bear this in mind, particularly in view of the fact that substantially the one evidence against the accused are contained in the confessional statements.

The test must therefore he, where the admissibility of police evidence of confessional statements is challenged, whether there is a reasonable possibility that the police evidence is not true with the possibility that the police witnesses have perjured themselves and conspired to that end. It need not be shown that the police have, in fact, perjured themselves and conspired to that end.

The 'reasonable possibility' test that I have mentioned is one which I think clearly applicable in this jurisdiction, particularly where there are difficulties in having access to legal advice to an accused person held in police custody.

On the other hand I bear in mind also the fact that persons who make confessions to police sometimes repudiate them. Accused persons who later repudiate their confessions do so for a variety of reasons. Some want to retract what they said because they later realise the consequences of their admissions.

I have given a great deal of thought on what had been submitted by Mr. Remobatu in this case, on behalf of the accused. However, on the test set out, I do not find that there is a reasonable possibility that the police evidence on the making of the statements by the accused is untruthful nor do I find that there is a possibility of the police witnesses perjuring themselves and conspiring to that end.

I am satisfied beyond reasonable doubt that the statements obtained under caution from the accused, Peter Fitali, on 4th and 13th August 1992 and 8th September 1992, Items “A”, “B” & “Bl”, were obtained voluntarily and I admit them as evidence in this trial against the accused. The statements contained in pages 035 and 036 of D/Sgt. Rafita’s Police Note Book and page 005 of D/S. Sgt. Sau's Police Note Book are also admitted as evidence against the accused as they are notes contemporaneously made of what happened during the interviews with the accused.

This accused was arrested on 4/8/92 at about 3.00 pm. It was on the 5/8/92 that police escort was sent from Auki to Atori to escort the accused to Auki. According to the accused, it was the 6/8/92 before he was taken before a Magistrate at Auki.

Mrs. Samuel submitted as the accused had not been brought before the Magistrate until the morning of 6/8/92, her client’s constitutional right under section 5 of the Constitution had been breached.
Any statement obtained from the accused as a consequence of that breach must be illegal and should not be admitted, Counsel argued.

I have already pointed out the effect of section 5 of the Constitution and section 23 of the CPC on a person arrested and detained for murder in relation to Fitali. What I have said there equally applies here.

I need only to add that at the particular period, no Magistrate was available at Auki. The only Magistrate who could be contacted was Rex Foukona who was at the time at his home village.

The police doing the best they could to bring the accused before a Magistrate, had to go and find the Magistrate at his home and bring him to Auki. This was what happened in this case. The accused was brought before the Magistrate on the morning of 6/8/92 which was when it was practically possible.

The accused was arrested and detained for murder and as no Magistrate was available in Auki at the time, it could not be said that the accused was not brought before a Magistrate as soon as practicable at 11:00 am on 6/8/92 which was only a day and a half after his arrest and detention. I reject that submission.

The next attack against the admission of the cautioned statement obtained from the accused on 10/8/92 and the contents of the sketch plan of the canoes on the basis that they were made by the accused by force, threat or unfair means.

It was alleged by the accused that on 10/8/92 he was interrogated from 7.00 pm to 4.36 am on 11/8/92, with no food, no rest, no betel nut or smoke and that he was handcuffed throughout the interrogation. It is further alleged that following that interrogation, the accused was then actually interviewed from 4.36 am to 11.20 am on 11/8/92, making it a total of about 16 hours of sitting down in front of police officers and being interrogated and interviewed.

Counsel further submitted that no caution had been administered to the accused and that he was forced to sign the statement without it being read to him.

It is further argued on behalf of the accused that the caution statement was a construction made by the police and forced on him to sign. Even on 1/9/92 when the accused was interviewed in Honiara about the sketch of the canoes, Counsel submitted that the force used against the accused at Auki on 10/8/92 still operated on the mind of the accused.

In those circumstances Counsel argued any statement of admission made by the accused should be excluded counsel cited McDermott -v- R (1948) 76 CLR 501 in support.

On the other hand the prosecution evidence is that the accused had never been forced nor threatened to give his story to the police. He willingly gave his story to the interviewing officer after the explanation of the nature of the interviews and the caution were administered to the accused.

According to D/C. Rifasia, the recording officer, from about 11.20 pm on 10/8/92 when he conducted a general interrogation with the accused. That continued until about 0436 hours on 11/8/92 when the actual interview took place. That was confirmed by D/S.Sgt. Angisia who was the witnessing officer.

The accused stated that he was assaulted and threatened by the officers. He added that there were 5 police officers present when he was interviewed. Later he said, there were eight officers present when he was interviewed and that all these officers were subjecting him to pressure to admit the offence. Among the officers, the accused mentioned D/S.Sgt. Angisia, D/Const. Madeo, D/Const. Rifasia, D/Sgt. Auga and D/Sgt. Tori.

Both D.C. Madeo and D/Sgt. Tori denied being present at the interview of the accused, Fred Osifelo. As far as D/Sgt. Auga is concerned, it was never put to him by Counsel for any of the accused that he was present at this accused's interview.

The other 3 officers also said by the accused to be present when he was interviewed were D/Sgt. Bulu, D/C Mane1egu and C/Insp. Filia. When D/Sgt. Bulu was called to give evidence, none of the defence counsel cross-examined him as to any allegation of assault on any of the accused. In fact none of the defence counsel ever asked D/Sgt. Bulu any question at all in cross-examination. D.C. Manelegu was also never cross-examined about the alleged assault or force or threat on the accused, Fred Osifelo.

Counsel were armed with instructions from their clients before the commencement of the trial. Part of those instructions form the basis of the allegations against the police of using force, threat and assault on the accused. It is therefore cannot be accepted that the allegations were simply forgotten to be put to the police officers in cross-examination by counsel for the accused.

Perhaps the more likely reason for not asking the police officers concerned questions on such allegations of assault, threat or force is because they did not take place and that the accused did not give any instructions of assault or force or threat. They thought that they would try their luck and raise the allegations in court.

Unfortunately the courts do not buy such a tactic in the system of our criminal process.
I accept the evidence of D.C. Rifasia and D.S. Sgt. Angisia as having the ring of truth in them. Although there was an interrogation before Fred Osifelo was interviewed, that interrogation was merely a general one and that the actual interview started at 0436 hours on 11/8/92. The accused was treated normally like any other accused who is to be subjected to interrogation or interview by the police.

Equally the complaint that the accused was forced to put the marks on the canoes in the sketch plain cannot be substantiated. I do not accept that it was D/Sgt. Kola who forced the accused to put the “Xs” on the canoes in the sketch plan.

Again the suggestion that it was D/S.Sgt. Angisia and D.C. Rifasia who constructed the whole story and that the accused only signed under force in one that I find it extremely difficult to accept. It is too detailed a story to be constructed by someone who was not at the scene.

I have observed the accused giving his testimony and I can clearly conclude that his allegation against the police cannot be believed. I reject the accused allegation of force, pressure, threat or unfair means used against him by the police. The accused has not shown that his confession was procured by police officers improperly.

I admit in evidence, the accused caution statement of 11/8/92, Item “C”, and the translation, Item “D” and the sketch plan of the canoes marked by the accused, Item “M”. I also admit the statement taken down in D/S.Sgt. Sau’s Police Note Book, at pages 005 and 006.

The accused, John Itea was arrested for the alleged murder of Basikona. There is a dispute as to when he was actually arrested.

There is no dispute that on 31/7/92 this accused was asked by police to accompany them to the Auki Police Station. The accused, having agreed to accompany the police, travelled to the Police Station by his own motor-bike.

At the police station the accused was taken to the Charge office where he was generally asked questions about the death of Basikona. There is a dispute as to whether the accused was placed in the cell on the night of 31 July 1992.

According to the accused, he was with the police in the charge office until 7.00 pm when he was put in the cell. Then about 8.00 pm. he was taken from the cell to the CID Office where he was questioned that night of 31 July 1992 by Angisia and Madeo while Rifasia, Bulu and Tori were just sitting there quietly.

It was also alleged by the accused that the statement made on 1 August 1992 was written down by Madeo at about 1.00 am that night. There was also the allegation by the accused that he was not allowed to leave the police station until about 6.30 pm on 1 August 1992 nor was he taken before the Magistrate on 31 July 1992 or 1 August 1992.

D/S.Sgt. Angisia gave evidence that the accused was invited to the police station on 31 July 1992 and the accused had agreed to go to the police station that day. At the police station, the accused was asked general questions about his suspected involvement in the death of Basikona.

The Officer further stated that as it was getting late in the afternoon. On 31 July 1992 the accused was asked if he could spent the night with the police at the police station and that he could return home the next day. This was agreed to by the accused. The accused left the police station 1 August 1992. S/S.Sgt. Angisia also stated that the accused was not under arrest on 31 July 1992. However, the accused was asked to return to the police station 3 August 1992. It was on 3 August 1992 that the accused was placed under arrest.

The accused was arrested when he returned to the police station on 3 August 1992. He was told of the reasons for his arrest. He was taken before the Magistrate on the same day. From that day onward, the accused was in police custody.

The version given by D.S.Sgt. Angisia was also confirmed by the other police officers mentioned earlier. There is nothing to suggest that the prosecutions version should not be believed. I accept the evidence of the police officers.

On the evidence before the court, I find that the accused was not arrested on 31 July 1992 but it was on 3 August 1992 and that he was taken before the Magistrate on the same day together with Taloikwai.

There is no evidence to support the suggestion by the accused that it was Robert Madeo who wrote out his statement on 1 August 1992. Only the accused knew about the existence of that statement which he, in fact, admitted that it was his true story willingly given by him as well. The more likely position is that the statement of 1 August 1992 was made by the accused himself while he was at the police station.

In any case, it really matters not who wrote out the statement of 1 August 1992. The same also applies to the statement of 5 August 1992. Both statements had already been admitted in evidence. There is no point in rumbling about how they came into existence.

The next challenged by the accused was against the admission of the caution statements of 6 August 1992 and 18 August 1992. The basis for that challenge is that those two statements were made by the accused under duress, intimidation or pressure and following assault, threats and force on the accuse.

The accused's story is that at about 8.00 pm in the evening of 6 August 1992, he was taken back to the CID Office where Angisia, Bulu, Rifasia, Madeo and Tori were present. He said that it was Bulu who was very aggressive toward him that night because he did not admit being the driver of the canoe.

The accused further stated that when he denied being the driver of the canoe, Angisia brought the other accused, Gegeo Maefasia, into the office and it was Gegeo Maefasia who pointed him out as the driver of the canoe. The accused however said that Gegeo Maefasia was telling lies.

As Angisia was leaving the office with Gegeo Maefasia the accused said that Angisia instructed Madeo to hit him (accused). It was then that the accused saw Madeo closed all the louvres and drew the curtains in the CID Office. Madeo, Bulu and Rifasia were in the room with the accused. Bulu then talked aggressively to the accused followed by a strike at the back of the accused’s neck by Madeo with the palm of his right hand which caused the accused to fall forward toward the table. This was followed by a right fist punch from Bulu which landed on the accused’s left eye. That caused the accused to give a loud shout. Again Bulu delivered another punch to the right eye of the accused who gave another shout. Then seven (7) punches were also delivered to the accused’s head by Madeo and Rifasia. The accused stated that he was again punched by Bulu and then stepped on his stomach. The three officers, according to the accused, then lifted the accused and threw him down causing his shoulders and head hitting against the floor.

The accused stated that after he was assaulted, the three officers left him in the CID Office and went out. They later returned to the office and saw the accused still sitting in the office. It was sometime after 11.00 pm that the accused was taken back to the cell.

While in the cell, the accused said he felt pain all over his head, his ears were “singing” and felt dizzy. His face, he said, was swollen and that he vomited blood in the cell and fainted.

It was after the assault on him that the accused asked to see the CID Officers after about 2.00 am that night (7 August 1992). However he was told that he would have to wait until the morning before he could see the CID Officers. It was about 7.00 pm on 7 August 1992 when the accused was taken to see the CID Officers. It was then that he gave the story which he said he heard from others.

The accused denied giving a statement on 6 August 1992. He said it was on 7 August 1992 when he gave his story. The statement dated 6 August 1992 was Angisia's own making and that it looked like a statement which the accused said he signed at the Prison Gate on or about 13 August 1992 under threat and force.

When taken through the statement dated 6 August 1992, the accused said that that was the story which Angisia forced him to make and which he helped to construct in order to match that of Gegeo Maefasia. The accused denied being cautioned before giving the story.

When the accused was taken to Auki Prison Gate on 8 august 1992, the warders saw his face swollen and that he had ‘black eye’. The accused told the warders that the CID Officers assaulted him.

The assault was strongly denied by the CID Officers who were called by the prosecution to give evidence. The CID Officers who were called by the prosecution to give evidence. The CID Officers were all consistent in their evidence that the accused was cautioned before the interview and that there was no assault on the accused at all. The accused gave his statement on 6th August 1992 voluntarily and that during that interview only Tori and Manelegu were present with the accused. Angisia, Madeo and Bulu were not present during the interview on 6 August 1992 voluntarily and that during that interview only Tori and Manelegu were present with the accused. Angisia, Madeo and Bulu were not present during the interview on 6 August 1992.

There are a number of striking features in the evidence as presented to the court. First, D/Sgt. Bulu was one of the alleged mean assailants of the accused. Yet, it was never put to the officer at all about any allegation of assault during cross-examination.

The complaint of assault is the main thrust of the accused’s challenge to the admissibility of his cautioned statements. Surely it could not have escaped the attention of defence counsel when the officer took the stand on the witness box. Counsel’s failure to put the allegation to the officer, deprives the court of the opportunity of ascertaining the response from the officer concerned.

Secondly, the accused never raised a complaint to the uniform officers at the police station about the alleged assault on him by the CID Officers. It was the uniform police officers who were giving him food while in police custody and that they had not taken part in the interrogation, the interview or the assault on him. At least one would expect the accused to raise a concern with those police officers. The accused is definitely a very well educated person with great intelligence. Why did he not complain to those uniform police officers? The suggestion by the accused that all police officers, CID and uniform officers, are one and so there was no point in complaining to the uniform officers, cannot justify the accused’s failure to complain in this case.

Thirdly, at no time was there any request by the accused for medical treatment. He never ask for medical attention while he was in police custody nor when he was taken to Auki Prison Gate. Why did he not ask the Warders for medical attention when he was taken to the Prison Gate on 8 August 1992 if he was indeed assaulted by the CID Officers.

Fourth, not one Warder ever raised a complaint or notify the police authorities in Auki about the accused’s complaint of assault by CID Officers if the accused had ever told them about the assault. When asked why the Warders did not raise any complaint about the assault or did not take the accused for medical treatment, all the warders who gave evidence said that it was none of their business because the alleged assault was done outside the prison. If it was done while in prison, then the warders would take action on it. I am afraid such an answer coming from a law enforcing agent cannot be accepted. It runs counter, not only to common sense, but also the duties and obligations expected of prison officers who had taken the oath to uphold the law and to help enforce it. The prison officers’ inaction in this case, leaves much to be desired of the truth of their evidence.

Fifth, Dr. Posala’s medical report only shows that the blackness on the accused's face was subsiding and almost disappeared, below the eyes. There was no other marks on the accused’s face. There was nothing that could be seen in the accused’s eyes. Dr. Posala said that although the fainting blackness below the accused’s eyes were consistent with the history given by the accused, other things could also have caused them. In the circumstances of this case it would be difficult to say that the doctor’s report confirms the accused’s allegation that he was assaulted by CID Officers. It is therefore of very little assistance to the defence.

There is another matter which can be noticed in the Doctor’s Report. As Doctor pointed out he was only examining the accused based on the history given by the accused who told Doctor Posala that police officers assaulted him at Auki Prison. I am not sure whether the accused deliberately told the doctor that the place where he was assaulted was in Auki Prison instead of at the CID Office in the police station as he had been telling the court. If it was a mistake, then on whose part Dr. Posala? or the accused? If it was a mistake (if at all), it could hardly have escaped the accused or his counsel’s attention from September 1992 to the trial of this case. That report has been part of the evidence for the defence and had been in the possession of the defence since it was made in September 1992. It only goes to show the inconsistency and the lack of veracity in the accused story.

Sixth, the accused is a person of good intellect. He had shown in court that he can think well and fluent in English as well as possessing a good knowledge of how a government administrative machinery works, particularly in his area of expertise which is in the field of Agriculture. He was very articulate in giving his answers to questions put to him. When giving his answers, he was prepared to go the extra length of offering explanations to suit his story of the alleged assault.

Seventh, I have found all the police officers to be consistent and straight forward in their answers to questions during the long and vigorous cross-examinations. Unfortunately the accused was not so straight forward when giving his account of what happened to him from 31 July 1992 to 18 August 1992. I bear in mind the usual view that police officers are very often said to be practised-witnesses. But this is not the case where I can say that the police officers’ evidence were of a practiced - typed version.

I also bear in mind the seriousness of the charge faced by the accused. At the same time I bear also in mind that where a challenge is mounted against police officers’ evidence of a confessional statement, there must be at least some evidence upon which the court can safely pointed to showing that the assault or threat or force had been exerted by the police upon the accused. Equally I also bear in mind that accused persons who made confessions to the police sometimes do change their minds and refutes what they confessed earlier. In this case the prosecution have satisfied me that there was no such assault as alleged by the accused.

I note the cased cited by Mr. Teutao on the question of “Voluntary Statement” see Ibrahim -v- R [1914] 4C 599; McDermott -v- R (1948) 76 CLR 501; Ping Ling [1975] 3 All ER 1175; R -v- Baefaka (1983) SILR 26; R-v- Lee [1950] HCA 25; (1950) 82 CLR 133 and Cornelius -v- R (1936) 55 CLR 235. Mr. Teutao urged the court that even if the statements were made voluntarily, they ought to be excluded as being improperly obtained by unfair means.

Adopting, as I do in this case, of a wide view of what constitutes “voluntary statement”, I nevertheless come to the inevitable conclusion that the statements obtained from the accused on 6th and 18th August together with the sketch plan of the canoes were not obtained by any improper, illegal, unconstitutional and unfair means. The prosecution had discharge the legal duty of establishing the voluntariness of the statements. Those statements, as Items I...are admitted as evidence in this case.

The accused Gegeo Maefasia, was arrested by the police on 2/8/92 and was taken to Auki on the same day. The accused, disputed the date of his arrest and said that he was arrested on the 26/7/92.

I can shortly dispose of this dispute. The evidence of the accused was that he saw John Itea for the first time on Monday 31/7/92 when he (Itea) came to the police station at about 10.00 a.m and that it was Rifasia who took Itea into the CID office that morning. When considering that piece of evidence against the evidence of Angisia, Madeo and Manelegu, it is clear that when the accused said he saw John Itea on Monday for the first time, that must be Monday 3/8/92. The 31/7/92 was not a Monday. It was a Friday and he (Gegeo Maefasia) was not yet arrested then.

John Itea never mentioned about seeing Gegeo in the police custody on 31/7/92. John Itea only mentioned about seeing Gegeo Maefasia on 3/8/92 and thereafter.

The evidence clearly shows that Gegeo Maefasia was arrested on 2/8/92 at Kwaiarakoko village by D/Sgt. Angisia. At the time of the arrest, D/Sgt Angisia explained to the accused the reason for his arrest.

The next attack is against the admissibility of the caution statements obtained from the accused.
Mr. Wasiraro argued that the Caution Statements should not be admitted in evidence against the accused because they were obtained by force. Counsel submitted that the statements were obtained from the accused in consequence of an assault on him. It was further argued by counsel that at the time of the interview the accused was never cautioned before he gave his statements. In those circumstances, counsel argued, the statements obtained from the accused should be excluded.

On the question of the allegation of assault on the accused by the police, the only evidence of that allegation came from the accused himself. He stated that it was Angisia who slapped his mouth, hit his back and punched his stomach and that the other CID Officers supported Angisia in assaulting the accused.

As a result of the harsh treatment and assault on him, the accused told Angisia to write down whatever he knew. The accused further stated that he was never cautioned and that he was forced to sign the statements on 3 August 1992 and 5 August 1992.

On 8 September 1992, the accused said that he was not cautioned before he was interviewed about the sitting positions in the canoes. In fact the accused denied giving any statement at all to D/S. Sgt. Kola as recorded in his (Kola’s) Diary. The accused stated that it was Kola who put the marks on the sketch of the canoes and not the accused.

D/S.Sgt. Kola, on the other hand gave evidence and said that at no time did he force the accused to show the sitting positions of the accused in the canoes. It was the accused himself who put the “X’s” on the sketch showing the positions of the accused in the canoes.

As to the statements of 3 August 1992 and 5 August 1992, those were recorded by D/S.Sgt. Angisia and witnessed by D/Sgt. Angisia and witnessed by D/Sgt. Tori and D.C. Madeo. The two witnessing officers confirmed officer Angisia’s evidence that the accused was never forced nor assaulted before during the interviews. I am satisfied to the required standard that there was no such assault or force used on the accused.

The accused also stated that during the time he was interviewed, he was suffering from Malaria. Evidence of that was contained in a medical card which he forgot at Auki. No attempt was made by the defence to produce supporting evidence on that by either calling the nurse or the person whom he said took the accused’s blood test. It was one of the complaints levelled at police officers of ill - treatment of the accused and it could hardly have escaped his mind that it was necessary to keep the medical card as evidence that he was really suffering from malaria and that the police were being unkind to him, unless of course it was his recent invention.

There is no evidence that the allegations against the police were raised earlier with other authorities by this accused. None of the Warders called on behalf of the other accused (John ltea), ever mentioned about this accused complaining to them of police assault on him when he was taken into Auki Prison Gate.

There are various other allegations raised by the accused against the police. When one puts all those allegations along side the evidence adduced by the police officers, one sees clearly on which side the ring of truth falls. It is obvious on the evidence that the accused’s allegations of ill-treatment by the police falls apart.

Counsel again referred to the case of McDermott -v- R (Supra) on the question of exercising the court’s discretion in admitting or rejecting a confession which is essentially a question of forming a view upon the propriety of the means by which the confession was obtained and that is to be done by looking at the circumstances of the case as shown by the evidence. Part of the consideration will be the fairness to the accused of the use made by the police of their position or authority.

The evidence in this case, not only in respect of this accused but also of the other accused, fails to disclose any impropriety on the part of the police in obtaining the confessions from the accused. I cannot find any evidence to establish that the police had unfairly used their position against the accused.

In so far as this accused is concerned, the evidence has clearly established that the statements obtained from him by D/S.Sgt. Angisia on 3 August 1992 and 5 August 1992 (Items No.1 and No.2) together with the statement recorded in D/S.Sgt. Kola's Diary Book and the sketch of the canoes with the markings thereon as indicated by the accused are all admitted as they were all voluntarily given by the accused.

I have considered the case against each of the accused on this voir dire. I have only limited my consideration of the issue of admissibility of the confessions made by each of the accused and as I have indicated in each case, the allegations made against the police do not stand up against the overwhelming and firm evidence given by those officers to this court.

Murder is a serious matter. As the only evidence or substantially, the only evidence against the accused are the confessional statements, the prosecution must make me completely sure that those confessions were procured voluntarily.

The evidence in this case shows that the caution statements containing admissions by each of the accused were made voluntarily and should be admitted in evidence. The positions marked by each of the accused on the sketch plans of the canoes were also made voluntarily and should also be admitted in evidence.

Fitali
Caution Statement of 4/8/92 & 13/8/92	Item A
Translation	Item B
Caution Statement in Kola's Diary	Item B1
Statement recorded in Rafita’s PNB pages 035 & 036	Item B2

Osifelo -
Caution Statement	Item C
Translation	Item D
Sketch Plan of canoes	Item M canoes
Statement made by accused and recorded in Sau's PNB pages 005 & 006	Item M1
Paper with acc'd name or signature	Item Q
Paper with accused name or signature as in Sau's PNB	Item Q1

Itea
Caution statement of 6/8/92	Item I
Caution Statement of 18/8/91	Item I1
Caution Statement of 5/8/91	Item I2
O/Statement of 1/8/92	Item I3
Sketch Plan of canoes with positions indicated by accused	Item L
Medical Report	Item R

Maefasia
Caution statement of 3/8/92 & 5/8/92	Item N
Translation of both	Item N1
Caution Statement of 8/9/92 in Kola's Diary	Item N2
Sketch Plan of canoes with positions marked	Item N3

High Court of Solomon Islands

Regina v Fitali [1993] SBHC 11; HCSI-CRC 39 of 1992 (19 October 1993)