Regina v Foster [1994] SBHC 18; HC-CRC 040 of 1992 (13 July 1994)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 40 of 1992

REGINA

-v-

R. FOSTER, A. ARUAFU and SAEFAFIA DUSU

High Court of Solomon Islands
(Muria CJ.)

Hearing: 5, 6, 7, 8 April; 24, 25, 26, 27 May; 27, 28, 30 June
Ruling: 13 July 1994

J. Faga for Crown
C. Taga for R. Foster
B. Titiulu for A. Aruafu
M.B. Samuel for S. Dusu

RULING

MURIA CJ: In the course of the trial of the accused, objections were taken to the admissibility of the records of interviews conducted with each of the accused. The objections were based on the allegations that the statements made by each of the accused were obtained from them by the police by force, threat or promise and/or that the statements were obtained through unfair means.

It is also part of the defence case that the interviews were conducted in breach of the Constitution and the Judges' Rules. As such it was suggested by the defence that the records of interviews should be excluded.

The case against each of the accused must be considered separately. I will, however, say this at the outset that the accused's statements obtained from the accused now being challenged, it is for the prosecution to make me sure beyond reasonable doubt that those statements which contained incriminating evidence were made voluntarily and that they were obtained without any improper means. If I have any doubt, I must resolve that doubt in favour of the accused.

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

Robert Foster (Accused)

This accused was the person who was said by the prosecution to be the person who stabbed the deceased on 1 August 1992 at Vura III.

Following information given to the police, the accused was arrested by police and charged for the murder of the deceased. It was not disputed by the defence that the accused had been properly arrested and charged for the crime of murder. The bone of the contention by the defence in respect of this accused is against the admissibility of the statements made by the accused during the interviews on 3rd, 4th and 5th August 1992.

Mr. Tagaraniana submitted on behalf of the accused that the police forced the accused to make his statements; that the accused was not properly cautioned before he was asked questions; that his rights under the Constitution to remain silent was not accorded to him and that the statements were extracted from the accused by unfair and improper means. As such, counsel says, the Court ought to exercise its discretion to exclude the statements made by the accused during those interviews.

Evidence on the conduct of the interviews with the accused were given by S/Sgt Masae, Sgt. Manelusi and Sgt. Maneforu. All the police officers denied using force, threat or inducement against the accused. They said that the interviews were conducted in accordance with the Judges' Rules and that the accused gave his answers to questions put to him voluntarily. They further gave evidence that the accused was cautioned of his rights before the interviews. Further, the statements were read back to the accused who was asked if he wished to make any changes to his story. The accused agreed to his statements and signed them.

It is also part of the defence case that the accused was threatened not to be given food if he did not admit his involvement in the incident. It was claimed that the accused had to admit his part in the crime because he was hungry and did not want to go without food.

The accused also stated that the condition of the Segregation Unit at the Prison where he was kept in custody made him gave his statement on 5 August 1992. The Segregation Unit was said to be not the place for unconvicted person.

The accused alleged that he was firstly interviewed at 9.00 am on 3 August 1992 during which he said he was willing to give his story and did give his story to the police at Naha. He further said that it was Sgt. Maneforu who took down the accused's story during that interview at 9.00 am.

Asked by his counsel as to what became of the record of that 9.00 am interview, the accused said that he did not know what the police did with it. In cross-examination he changed his answer to the same question and said that he saw he police squeezed and threw away the paper on which his statement was recorded.

Another feature of the evidence relating to the story about this 9.00 am interview is that the three officers (Masae, Manelusi and Maneforu) who were said to be present were not asked about the 9.00 am interview. It was never put to the officers in cross-examination the allegation that they "squeezed and threw away" the record of interview conducted at 9.00 am on 3 August 1992. The cross-examination of the three officers centred on the interviews conducted with the accused at 19.27hrs on 3 August 1992 which was continued at 0820 hrs on 4 August 1992 and that of 5 August 1992.

On the evidence before the Court, I am satisfied so that I am sure that the only interview with the accused were the one on 3 August 1992 commencing at 19.27 hrs and continued on 4 August 1992 and the other, on 5 August 1992. I do not accept the accused's story about this 9.00 am interview on 3 August 1992. The accused might well be at Naha Police Station in the early morning of 3 August 1992 but so were the officers mentioned who were busy interviewing witnesses, followed by the interview with the other accused (Ambrose Aruafu) at 10.00 am.

The main thrust of Counsel's attack against the officers who interviewed the accused is that they subjected his client to threat, intimidation and mental pressure in the course of the two interviews. As such statements of admissions made in consequent of such threat, intimidation or pressure must be excluded. In support of his contention, Mr. Tagaraniana cited the cases of McDermott -v- R (1948) 76 CLR 501 and Comm. of Customs & Excise -v- Harz & Powell [1967] 51 Cr. App. R 123.

It has been a settled principle that a confession made by the accused will not be admitted as evidence unless it was made voluntarily, that is to say, that it was made in the exercise of a free choice to speak or be silent. In McDermott, the Court said at p.511:

"If the accused speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If the statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."

The prosecution must therefore prove the voluntariness of the admission made by the accused in his statements to the police during the interview. If however, the admissions were found to be voluntary and as such admissible, the Court will move on to consider the second limb of the attack that the admissions were obtained in the circumstances which render the admissions unfair to be used against the accused.

I have read the statements obtained from the accused in this case. I have also heard the evidence given by both sides in this case. I have also watched the accused and the police officers gave their evidence in Court. Having done so, I find that the evidence given by the police officers were consistent and convincing. Quite to the contrary of the alleged threat and intimidation, the accused was, on the evidence, willing to give his story to the police during the interview both on the 3rd/4th August 1992 and 5 August 1992 and to put forward his version exculpating himself. He agreed to indicate to the police that although he used the knife on the deceased it was an accident. In his second interview on 5 August 1992, he made a statement inculpatory of his co-accused (Saefafia) that it was his co-accused who told him to wait with the knife under the tree. I do not see how the accused can say that he was forced, threatened, intimidated or subjected to any physical or mental oppression in giving his statements to the police when he was given and he took the opportunity to give his version exculpating himself. I accept the version given by the three police officers that at 21.10 hrs on 3 August 1992 the accused requested a break in the interview and the officers complied to his request suspending the interview until the next day. Those are not indications that his will was overborne but rather, the contrary.

Then there is the complaint that the police had unfairly treated the accused. This complaint is based on the allegations that the accused was not given food and that he was put in the segregation unit which is said to be unfit for habitation by an unconvicted person. The evidence shows that these allegations lack merit and I regret them.

As far as this accused is concerned, having read the whole of the two statements and listening to the evidence and observing both the accused and police officers, I am satisfied so that I am sure that the statements, the making of which had been adequately corroborated, from the accused on 3rd/4th August and 5th August 1992 were made voluntarily.

It has been urged by counsel that I should exercise the Court's discretion and exclude the statements even if they were made voluntarily on the basis that they were obtained from the accused in breach of the Judges Rules and as such it would be unfair on the accused to use the statements against him. In Cleland [1982] HCA 67; (1982) 151 CLR 1, at 5, Gibbs CJ, commenting about confession, said:

"But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused."

As a yardstick against impropriety and unfairness, the Judges' Rules were devised rather than as rules of law. They are not part of the law of this country, although a trial judge may consider a breach of the Rules as a matter to be taken into account in exercising his discretion whether or not to admit a confession made the accused.

The question therefore whether or not to exclude a confessional statement obtained in breach of the Judge's Rules turns on the unfairness to the accused of the use of the statement which may affect his right to a fair trial. The need for fairness to a suspect or an accused will, of course, depend on the circumstances of a particular case. See Van de Meer [1988] HCA 56; (1988) 35 A Crim. R. 232.

I venture to note the remarks made in Lee [1950] HCA 25; (1950) 82 CLR 133 at 154 where the Court said of the Chief Commissioner's Standing Orders which in Victoria corresponded to the Judges' Rules:

"The rules may be regarded in a general way as prescribing a standard o propriety, and it is in this sense that what may be called the spirit of the rules should be regarded."

This standard of propriety or standard of fairness is the objective that must be observe by police in interrogation of suspects. That is "the spirit" of the Rules.

Having made those observations, I return to the evidence in this case. As I have already stated, I have read the two statements made by the accused in this case and I heard the evidence and observed the witnesses and the accused giving his evidence. Having done so, I come to the firm conclusion that no unfairness will result in the use of the two statements against the accused. I reject any allegation of impropriety and unfairness on the part of the police in the course of the interviews with the accused on 3rd/4th August and 5 August 1992.

I rule that both statements are therefore admitted in evidence in the trial of the accused.

Ambrose Aruafu (Accused)

This accused objected to the admissibility of the statements obtained from him by the police during the interviews on 3 and 5 August 1992. The basis of the objection is that the statements were obtained by threat, inducement and breaches of the Judges' Rules.

The evidence produced by the prosecution comes from D/Sgt. Maneforu, D/Sgt Manelusi and D/C Falasi. The accused himself also gave evidence on his own behalf.

D/Sgt. Maneforu was the interviewing officer as well as recording the interview. The other two officers were witnesses to the interviews.

In his evidence in court the accused stated that he was arrested on 2 August 1992 and was placed in the cell at Naha Police Station. He said he was interviewed on the morning of 3 August 1992 at which time he admitted his part in the killing because he was then already very hungry.

According to the accused, he was also threatened by S/Sgt Sau and the other officers before the interview that he must admit his involvement in the killing. He said as he did not admit his part in the killing, the police placed him in the cell until he made admissions on the morning of 3 August 1992.

During the interview on 3 August 1992, the accused agreed he was cautioned and did sign the caution. He agreed the statement was read back to him and he signed it. However he said that he was not told that his story might be used in court.

As to his statement of 5 August 1992, the accused denied being cautioned before the interview. He said he knew he had the right to remain silent if he wished even though that was not explained to him. He denied that the story recorded by the police on 5 August 1992 was his. He agreed he gave his story but said that what was presented in court was not his story.

It is also part of the accused's case that he was induced to give his story because, he said, he was told that he would be a good crown witness.

D/Sgt Masae gave evidence that the accused was in the cell before he was brought to the Charge Office in the morning of 3 August 1992. The officer could not remember exactly when the accused was first brought to the Naha Police Station. It was officer Masae who formally charged the accused at 3.00 pm on 3 August 1992 for murder after cautioning the accused first. The accused's response was recorded in Officer Masae's Police Note Book (PNB) which the accused signed.

Sgt Manelusi and Sgt. Maneforu both gave evidence that before the accused was interviewed on both occasions, the accused was told of the nature of the interview and then cautioned him. The accused understood the caution and he signed by placing his thumb print on the paper. The officers denied exerting on the accused any threats and further denied making any promise to the accused to be a crown witness.

Before I deal with the other matters raised by Mr. Titiulu on behalf of the accused, I will mention briefly one aspect of the case that has not been touched upon by the accused when he went to the witness box on this voir dire. This was the fact of the accused signing Officer Masae's PNB where the accused's response was recorded when officer Masae formally put the charge to him. The accused signed officer Masae's PNB by placing his thumb print (R) on the page in the PNB. Officer Masae was examined and cross-examined on this aspect of the case but not the accused.

Standing un-rebutted, the Officer's evidence must be accepted. I therefore find that Officer Masae recorded in his PNB the accused's reply to the charge put to him. The accused did sign by putting his thumb print (r) in Officer Masae's PNB.

On the allegation of threats being exerted on the accused, one need only to look at the two statements to see that the allegation cannot be sustained. The evidence given by the police officers together with the contents of the statements shows that the accused was present at the scene. However in the course of the interviews, the accused demonstrated that he was willing to throw some of the blame on the other accused while explaining his own part in the incident in some details.

When asked about being told that he would be a crown witness, the accused said in his evidence in chief:

"when Masae and Sau said that I would be a crown witness, I felt that since I did not see the killing I would not be good crown witness"

That statement from the accused clearly demonstrates that he was not unwilling to take the opportunity to explain himself to the police. There is no tone of threat or aggressiveness in that response.

Likewise, the accused's response clearly do not support the suggestion that he was induced to give his story by being promised to be a crown witness.

When one turns to the complaint of breach of Judges' Rules, the accused's evidence lacks coherence. In chief, the accused said he signed his statement of 3 August 1992 by putting his thumb print on the paper. He agreed the police cautioned him and that he and the police signed the caution. He, however, said that he was not told that his story might be used in Court nor did the police ask him if he wished to write his own story. Part of his evidence to this effect is as follows:

"I remember the officers who interviewed me told me that they investigated the killing of the deceased at Vura III.

I signed by placing my thumb print.

The policemen cautioned me. But not that part where it says that my story might be used in court.

I signed after the caution.

The officers also signed.

After that the officer just said that I give my story.

He did not ask me if I myself wished to write my story.

They asked me some questions and part of it was my story I gave.

After that they read back to me my story. I signed and the officers signed.

This was 3 August 1992"

As to the second interview on 5/8/92, the accused said that he gave his second story at Rove. But he denied being cautioned. He did say, however, that on both interviews on 3 August 1992 he knew he had the right to remain quiet if he wanted to, although they did not explain it to him.

When one puts together his evidence in Court and the records of interviews, the undoubted conclusion is that the interviews were conducted, not only in the "spirit of the Judges' Rules but also to the letter of the Rules."

I have already mentioned about the court's power to exercise its discretion to exclude the accused's statements even if they are voluntarily obtained. I do not need to repeat it here.

Counsel also cited a number of cases including that of McDermott -v- R (Supra) to support his contentions in this case. I do not need to go into those cases as I am of the firm view that the prosecution have made me sure that the statements obtained from the accused on 3rd and th August 1992 were voluntarily made by the accused. No impropriety or unfairness has been shown on the part of the police officers in the conduct of the interviews.

The statements are therefore admissible as evidence against the accused and must be admitted in evidence.

Saefafia Dusu (accused)

This accused also gave two statements to the police. The first was on 4 August 1992 and the second was on 6 August 1992.

Mrs Samuel submits that her client was forced to admit his part in the crime and that he was never cautioned before giving his statements. Also Counsel joins with the Counsel for the other accused in urging the Court to exclude the statements obtained from her client on the basis of the breach of the Judges' Rules.

The accused was arrested on 3 August 1992. He was taken to Naha Police Station and later taken to Central Police Station where he was placed in the cell. On 4 August 1992, he was taken to Naha Police Station again where he was interviewed.

It was said by the accused that when asked about the incident of 1 August 1992, he denied involving in the incident although he clearly knew about it. This is clearly demonstrated by his answer to a question put to him in-chief when he said:

"I wanted to tell my story about what I know about the incident. But police did not listen to me."

The accused denied being cautioned by Officer Filia before the interview on 4 August 1992. He however, said that he signed the Record of Interview using the name "Saefafia" and that the Record of Interview was read back to him.

As to Record of Interview of 6 August 1992, the accused said that Officers Manelusi and Maneforu cautioned him before the interview. He, however, said the interview was on 7 August 1992 and not on 6 august 1992. He also said that he understood that whatever he said, would be used in Court. He also said he signed that Record of Interview using the name "John Gulumi Saefafia" Later on he said he only used 'Saefafia' and it was the police who put down 'John Gulumi'.

In cross examination, the accused further modified his story and said that even the word 'Saefafia' was spelled for him by the police before he wrote it down. He added that the story which he gave to police at the second interview was similar to the one he gave to police at Naha except some words were forced on him to add to his story. There are other features of his evidence but I do not think it is that necessary for me to go through them.

I have seen the two Record of Interviews with the accused and as far as the question of administering the caution is concerned, I have no doubt whatsoever that the accused was cautioned before the interviews. The police officers have complied with the Judges' Rules both in 'the spirit' as well as the letters, of the Rules.

Again when one looks at the statements, they clearly demonstrate not only the accused's involvement in the incident, but also show that the accused was prepared to make use of the opportunity to explain himself and throw some blame onto the other accused. The police officers gave evidence and they demonstrated clearly that no force or threat or inducement was used on the accused.

Reading the whole of the two statements together with evidence adduced in court by the prosecution as well as that of the accused, the picture becomes so obvious. That is the picture of the interview conducted by the police officers without any impropriety or unfairness; the picture of the accused voluntarily giving his account of what had happened on 1 August 1992 and the picture that accused is really now attempting to detach himself from what he and the co-accused had done on 1 August 1992.

I simply do not believe his story of being forced to give his story to the police. He has shown to be very inconsistent and unconvincing on the witness box.

Further his story about giving an earlier statement which was torn and thrown away by Sgt. Manelusi and Sgt Maneforu before the interview at 1540 hrs on 6 August 1992 does not have the ring of truth in it.

Like his two co-accused, he complained about not being fed by police. The evidence to the contrary is unmatched by what the accused alleged. I do not find any merit in that allegation.

The accused complained about being placed in the Segregation Unit. I sympathised with accused of having to be put in such a place at the time. But that can hardly be said to be a matter that the police officers concerned should be blamed for. There is no merit in that allegation as well.

I have observed the accused and consider the evidence together with the statements recorded from the accused and I come to the firm conclusion that the prosecution has discharged the duty placed on them of proving the voluntariness of the statements in this case beyond reasonable doubt. The statements obtained from the accused on 4 August 1992 and 6 August 1992 were made by the accused in the exercise of his free choice to speak or remain silent. There is no ground established warranting those statements being excluded.

I therefore admit the statements recorded from the accused as evidence against him at the trial.

Conclusion:

I have considered the case against each of the accused in this voir dire bearing in mind the seriousness of the charge faced by each of them. At the same time I also bear in mind that where a challenge is mounted against police officers' evidence on caution statement obtained from the accused containing admissions, there must be at least some evidence upon which the court can safely point to showing that the alleged assault or threat or force or promise had been exerted on the accused by the police.

Equally, I bear in mind also that accused persons who made admissions to police sometimes change their mind and refutes their earlier admissions see R -v- Fitali & Ors Crim. Case No. 39/92.

In this case, having considered all the evidence I come to the firm conclusion that the allegations made against the police officers, including the allegation that police had unfairly used their position or authority against the accused, do not stand up against the evidence given by the officers to the court. The evidence has established beyond reasonable doubt that the Caution Statements obtained from each of the accused were made by each of them voluntarily and as such should be admitted in evidence.

For the same reason I also rule that the statements recorded in Sgt Masae's PNB were voluntarily made by the accused and should be admitted also in evidence.

I rule accordingly.

(G.J.B. Muria)
CHIEF JUSTICE