Gatu v Reginam [1994] SBHC 41; HCSI-CC 93 of 1993 (4 January 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.93 of 1993

BILLY GATU

-v-

REGINAM

High Court of Solomon Islands
(Palmer J.)
Criminal Case No. 93 of 1993

Hearing: 2nd of November 1993
Judgment: 4th January 1994

R. Teutao for Appellant
J. Faga for Prosecution

PALMER J: The appellant was charged in the lower court for the offence of driving whilst unfit to drive through drinks contrary to section 42(1) of the Traffic Act (Cap.19). The offence was alleged to have occurred on the 9th of April 1992 at Honiara. The appellant pleaded not guilty. A trial was held, after which he was convicted and fined $200.00 payable by the 2nd of September 1993 at 4 p.m and in default of which he would be sent to prison for 100 days. He was also disqualified for 12 months from driving.

He now appeals to this court against that conviction. Six grounds have been raised by the Appellant in support of his appeal. Nearly all of these grounds however are inter-related.

The main thrust of the appeal is that the learned Magistrate had admitted inadmissible evidence which should have been excluded, as those evidences were obtained in breach of section 5(2) of the Constitution and/or the Judge's Rules as to the administering of a caution to an arrested person before questioning.

The first question to deal with is, whether there has been a breach of section 5(2) of the Constitution? The second question is, if there has been a breach, then is the learned magistrate required to reject the evidence adduced in respect of that breach? The same two questions can be asked inrespect of the Judge's Rules.

What is the breach alleged? Section 5(2) of the Constitution reads and I quote:

“Any person who 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 key words are “shall be informed as soon as reasonably practicable”. The reason why it is important to inform the accused why he has been arrested is because; the lawfulness of that arrest and subsequent detention is dependent on the reasons for the arrest. An arrest and subsequent detention of any person can only be effected in accordance to law. Section 5(1) (f) of the Constitution allows a police officer to arrest and detain an accused person “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands”.

Section 18(a) and (b) of the Criminal Procedure Code also empowers Police Officers to effect an arrest without a warrant where he suspects on reasonable grounds any person of having committed a cognisable offence, and where any person commits any offence in his presence.

The common denominator in all these is that, there must be in existence in the mind of the police officer, reasonable grounds to justify his suspicion that either an offence has been committed, or about to be committed. If no reasonable grounds exist and he effects an arrest and subsequent detention of an accused person, then he or she leaves himself open for a claim of damages for unlawful arrest and false imprisonment.

Usually, a person is told of the reasons for his arrest at the time of the arrest. At other times he is told formally when he is charged at the Police Station.

The evidence as produced by the police officers effecting the arrest was that the accused had voluntarily accompanied them to the police station. It was only at the police station, and after the accused had walked the line test and failed it, that the arrest was effected and the accused charged. Mr Faga, for the prosecution submits that it could not have been any earlier, because it was only after the accused had failed the line test, that they became satisfied that the accused was drunk and not in fit state to drive.

Mr Teutao on the other hand submits that the arrest was effectively made at the time the accused was accosted opposite the Anthony Saru Building, before being taken to the Police Station. He submits that at that point of time, the accused was a man in the custody of the police officers, and that effectively he had been deprived of his liberty, because even if he had wanted to leave, he could not or would not be permitted to leave.

The evidence of the police officers on this matter however is quite clear.

In PWl's evidence, Rodney T. Kera, he stated under cross-examination and I quote:

“We told him that he was under arrest for driving under influence of liquor.”

Both police officers stated quite clearly that after the accused had failed the line test, they then proceeded to have him detained in custody overnight. The accused was arrested and subsequently charged for the offence of driving whilst under the influence of liquor.

I am satisfied that there is evidence before which a competent court could find that the accused had indeed been informed of the reasons for his arrest. The learned magistrate however did not make any such findings. Instead, he stated that a breach of the Constitutional provisions would not necessarily mean that the evidence must be excluded. Rather, he says, that is a matter within the discretion of the presiding magistrate.

A Papua New Guinean case, Reference No. 1 of 1977 [1977] PNGLR 362 had been referred to by Mr Faga in support of the contention that the court does have a discretion to admit or not to admit statements that had been obtained in breach of the Constitution.

One of the cases cited with approval in that case and followed, was The Queen–v-Ireland (1970) 126 C.L.R.321. The relevant portion reads:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.” (Per Barwick C.J. at pp. 334-335).

The Supreme Court of Papua New Guinea accepted that there is a discretion within which the presiding judge can admit or not to admit statements obtained in breach of the Constitution. I am satisfied the same can be said of section 5(2) of the Constitution, that the fact that the accused was not informed as soon as reasonably practicable of the reasons for his arrest, does not necessarily mean that therefore any statements obtained should be rendered inadmissible. Usually such breaches would not have any material effect on the veracity of the prosecution's case. Where there is a reasonable likelihood that that would be so, then the judicial discretion may be exercised in favour of excluding such statements.

This brings me to consider in detail the second submission on this point relating to a breach of the Judge's Rule as to administering a caution to an arrested person before questioning. It is important to point out right from the beginning that the same discretion applicable to a breach of a Constitutional provision is also applicable here. I note with approval the reference by Mr Faga to an English case, Beese -v- Governor of Ashford Remand Centre [1975] 1 WLR 1426 per Lord Diplook at page 1430, in which he said:

“The Judge's Rules are not rules of law. They are rules laid down by the Judges of the Queen's Bench Division for the guidance of English Police Officers when taking and recording statements made by persons who are suspected of having committed criminal offences. Non-observance of the Rule by a police officer to whom a confession is made does not render it inadmissible at common law if it was voluntary. The only sanction for the observance of the Judge's Rules is that if the Judge before who the case is tried may, if he thinks fit, refuse to admit in evidence a confession obtained in contravention of them. It lies within his own discretion which he must exercise judicially whether to admit the confession or reject it.”

I am satisfied the above statement is also applicable in this case.

The submission of Mr Faga on this point is that as the accused had not yet been formally arrested at that point of time, that therefore he was not a person under custody. Accordingly, it was not necessary to caution him before asking him to walk the line. He pointed out that at that point of time the police officers had not yet made up their mind about whether to charge the accused or not. It was therefore not necessary to caution him.

Mr Teutao on the other hand submits that the accused should have been cautioned before he was made to walk the line test as a means of ascertaining his state of drunkenness. By walking the line test, the accused had incriminated himself, without being made aware of his right to silence. Had he been made aware of his rights, he would not have undergone the line test. The results from that test were then used as admissible evidence against him in court.

Mr Teutao also submitted that because no caution was issued, accordingly the evidence obtained could not be said to have been voluntarily given and therefore it should be excluded. In the alternative, he submits that the discretion should be exercised in favour of the accused, and the results of the test excluded.

Mr Teutao made reference to the two views as adopted by English Courts on one hand, and the American Courts on the other.

The general rule which forms the basis of the English approach is that all relevant evidence is admissible, and the fact that it was obtained illegally is immaterial so far as the case before the court is concerned. On the other hand, the American courts refer to what has been termed as the ‘doctrine of the exclusion of the “fruits of the poisoned tree”.’ If evidence has been obtained illegally, then even though it was relevant it should not be admitted. It argues that police officers should comply with the requirements of the law even in the pursuit of crime and in the course of their investigation.

In the English Courts however, there has also developed the recognition of the judicial discretion that the presiding judge has over the admissibility of such illegally obtained evidence.

The approach of the courts in Solomon Islands has not deviated from the duly recognised principles of law applicable in the English Courts and the recognition of the judicial discretion to exclude or not to exclude evidence obtained in such a fashion. Accordingly, the submission by Mr Teutao about the exclusion of the evidence because there had been a breach of the Judge's Rules fails. However, the alternative argument about the exercise of the judicial discretion will now be considered in detail.

In the exercise of that discretion, the key consideration I accept as recognised in the English courts, is “generally limited to ensuring that the accused is protected from the admission of prejudicial evidence, i.e. evidence which may be accorded more weight than is warranted.”

So, although I accept that the police may have acted in breach of the Judge’s Rules by not cautioning the accused and making him aware of his rights before carrying out the test, the learned magistrate does have a discretion whether to admit or not to admit the results or evidence concerning that test. The learned magistrate, in his judgment did admit the evidence on the test. Mr Teutao submits he should not have exercised his discretion in that way.

The question before me is whether that discretion was correctly exercised.

The evidence adduced in the Magistrates’ Court indicated quite clearly that the line walking test was used to determine whether the accused was in a fit state to drive or not.

I note that there is no legal basis for the application of such a test. I do however observe that such a test had been used it seems as a standard practice by police for sometime.

I accept that the police do not have a police surgeon, or a medical doctor, that is attached on a permanent basis to the Police Department, and who can be called upon in such instances to carry out a medical examination on the suspect, when required. I also do note that previously, such persons would normally have been taken to the Central Hospital, for examination by a doctor or nurse, but that this practice seems to have been discontinued for some reason or other. Perhaps, it was the doctors and nurses who have refused such requests for fear of being physically assaulted by such drunken suspects.

I accept that the police are therefore in a very difficult position inrespect of carrying out any recognised tests or examination on such suspects. I do not know how the test applied in this case emerged as a practice generally adopted by the police, but it would seem to have its origins from the usual medical examinations that are normally performed by medical doctors.

One such good example of this is contained in the book titled ‘Road Traffic Offences’ by G.S. Wilkins, 4th Edition 1963 at page 394-399, and marked Appendix II. This is a model scheme of Medical Examination I drawn up by the British Medical Association and published in 1958, as a guide for an examining doctor to use. The requirements imposed are very clear and precise, and when contrasted with the test applied by the police officers, that test I must say, fell well below any minimum standard of acceptability. One of the sub-headings in this model scheme is headed 'gait', and it is interesting to note that the line walking test applied by the police officers came under this sub-heading. I quote:

“The examinee should be asked to walk across the room and the examiner should note;

(a) Manner of walking: is it straight, irregular, over-precise, staggering, reeling or with feet wide apart?

(b) Reaction time to a direction to turn: does the examinee turn at once or continue for one or two paces before obeying?

(c) Manner of turning: does the examinee keep his balance, lurch forward, or reel to one side? Does he correct any mistake in a normal or an exaggerated way?

It is undesirable to ask the examinee to walk along a straight line drawn on the floor or along a carpet edge.”

The first obvious point that can be noted from the above quotation is that, the test applied by the police officers was described as ‘undesirable’.

Secondly, such a medical examination is carried out only with the consent of the examinee. Thirdly, the walking test stood out as a very crude test; so crude in fact to be virtually unreliable, and accordingly should have been excluded outright. But even if it is to be admitted, its evidential value with respect would be so negligible to be of any significance. I note that the learned magistrate it seems was not aware of this model scheme. Had he been aware of it, then his ruling perhaps may have been different.

Unfortunately, a lot of emphasis and reliance seems to have been placed on the result of the test than actually warranted. I will now therefore turn to consider the prejudicial effect if any, that that evidence has had on the case as a whole.

In his judgment, the learned magistrate stated and I quote:

“Turning to this case, the fact that the defendant having walked the line unsteadily cannot be said to have proved his guilt. In other words it does not constitute an evidential value. This is merely a device as in the ‘breath test’ method to ascertain whether it is sufficient to arrest the defendant. It is then that the arrest is effected and followed with the laying of charges.”

Unfortunately, what seems to have been overlooked by the learned magistrate in what he had just said above is that, if the test did not have any evidential value, then it could not have been used as a device to ascertain whether it is sufficient to effect an arrest on the defendant or not. It must have had some evidential value, and that is why after it was conducted, it was then deemed sufficient by the police officers to effect an arrest. Otherwise, the police officers should have released the accused, if they considered that there was insufficient grounds at that point of time to satisfy them that an offence had been committed. The effect of what the learned magistrate said was that if the ‘walking test’ was not carried out, then the police officers would not have been able to say whether there was reasonable grounds to effect an arrest. With due respect, that can only mean that the ‘walking test’ did carry significant weight in the minds of the two police officers, as to the sobriety or state of drunkenness of the accused, and subsequently, his fitness to drive whilst under the influence of liquor.

It was therefore not correct to say that the result of the test was of little evidential value, when in actual fact it did carry sufficient weight in the minds of the police officers.

Secondly, in the evidence of PWl, Rodney Terrence Kera, he states, as contained in the record of proceedings:

“At Central Police Station we told him to walk along a line on the floor to see if he wasn't drunk. He did walk the line, however from A to Z he staggered and from Z to A he was quite far out from the line. This really proved that the defendant was drunk so we had to place him in the cell.”

This piece of evidence is quite significant. What it showed quite clearly is that the test was conducted to see if the accused was drunk or not. It showed that up to that point of time, one of the key witnesses (and it would seem that both police officers), were not even sure that the accused was drunk and not fit to drive. It was only after the test had been carried out, that both police officers became convinced that the accused was not fit to drive. It was only then that they were satisfied it seems, that there was reasonable grounds to effect an arrest. Otherwise, why did they not effect an arrest at the point of time where the accused was accosted? And why did they have to wait until the test was conducted?

If the evidence regarding the test is excluded, or if the test had not been carried out, would the police officers have been still satisfied that an offence had been committed, relating to the use of liquor? The evidence of the police officers does not clearly show that they were convinced about the unfitness of the accused even before the test was conducted. I wonder whether the accused would have been released if he had passed the test. One of the questions that come to mind is, if the two police officers were uncertain about the sobriety and fitness of the accused prior to the test, then how could the learned magistrate be expected to be satisfied to be sure about the guilt of the accused?

The prejudice against the accused with respect, is in having evidence pertaining to a most unsatisfactory and unreliable test as to the state of intoxication of the accused, admitted as evidence. That prejudice has been heightened by the fact, that in the evidence of the police officers, they placed a great deal of emphasis and reliance on it to the point that an arrest was only effected after the test had been carried out and the accused failed the test. If the test had not been carried out, or its results ruled inadmissible, then it is possible that a reasonable doubt may have existed in the mind of the presiding magistrate.

I am satisfied that for the reasons above, the judicial discretion should have been exercised against the admission of the result of that test.

This brings me to another ground in the appeal raised by Mr Teutao.

This other matter related to an out of court observation made by the learned magistrate. The actual statement reads:

“I am not surprised because before the trial continued on 19th August 1993 in the morning I have seen this witness sitting together on the bench outside the court and that there is a possibility that they would corroborate evidence overnight.”

The witness referred to is the accused's witness, Andrew Pambo, a police officer, and also the son-in-law of the accused.

There is no legal basis for such comment by the learned magistrate, even if it is to be regarded as a passing comment, as suggested by Mr Faga. No evidence whatsoever was introduced by the prosecution to call the learned magistrate's attention to that incident. It is quite correct for Mr Teutao to suggest that a reasonable ordinary person could possible see this as the learned magistrate having an interest, or taking sides with the prosecution. Perhaps the learned magistrate made the comment inadvertently, and that it did not play any significant part in his overall assessment of the evidence, and subsequent conviction of the accused.

I do note that the learned magistrate did consider in detail other relevant factors called in evidence by the prosecution; such as the manner of driving of the accused at the bend, opposite the Honimed clinic; the amount of beer taken by the accused and the strong smell of liquor from the accused's breath; he also noted that the accused was argumentative, but pointed out that the reason in his view was because the accused was upset or trying to be protective over his son who had also been present in the car with him at that time. He also considered the demeanour of the witnesses and ruled that the prosecution witnesses were more reliable and their evidence accordingly preferred.

A conviction could have been sustained on the evidence as assessed by the learned magistrate. Unfortunately, the comment made by him, cannot be ignored completely as it can be interpreted to say that the learned magistrate has a certain amount of biasedness against the accused. I am not saying that he has; but there is a real possibility that he has. And in that respect it is possible that in discounting and disbelieving the evidence of Andrew Pambo, he may have indeed been biased against that witness. The taint caused by the comment may be rightly regarded by Mr Faga as insignificant and did not materially affect the way the learned magistrate eventually held that that witness was unreliable. Unfortunately, justice must not only be done but must be seen to be done, and where there is a possibility that it may not have been done then it is the court's duty to ensure that it is so. His comment could be seen by an ordinary, reasonable person as amounting to a real likelihood of bias.

When this factor is considered together with the admission of the evidence pertaining to the walking test, I am satisfied that the conviction against this accused should not be sustained.

The proper course of action to take is to order that a new trial be held before a different magistrate. However, when all the circumstances surrounding this case is considered, it is my humble opinion that it would not be in the interest of justice for a new trial to be ordered. There is a real possibility that a new trial would be unfair to the accused. Accordingly, I will direct that the file be marked ‘Not to be proceeded with.’

The conviction is accordingly set aside. The disqualification is also set aside, and the fine of $200.00 to be refunded to the accused. No order for costs.

(A.R. Palmer)
JUDGE