Regina v Tau [1996] SBHC 1; HC-CRC 058 of 1993 (23 January 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 58 of 1993

ter">REGINA

v

JOHN MARK TAU

AND 16 OTHERS

Beforemer lmer J

Hearing: 1-3, 6,7,9,13-15, November, 1995 - Ruling: 23 January, 1996

Counsel: Mrs. M. Samuels for Stanley Baohn Teobu and Dick Okea; Mr. Billy Titiulu for Jamr James Kofana and John Biliki; Timothy Feru and Jackson Paoki - self represented

PALMER J:

There are 17 accused who have been arraigned before this Court on several charges under the Penal Code. Two accused, Joe Kenikaesia and Magara Belama have gone underground and not been able to be located at the time of the trial. One has pleaded guilty and awaits sentence, whilst the rest have entered not guilty pleas.

During the trial it was made known that a number of accuseds would be challenging the admissibility of their caution statements obtained by police. These were:

1. John Mark Tau represented by the Public Solicitor.

2. Stanley Bade and

3. John Teohu and

4. Dick Okea represented by Mrs. Samuels.

5. James Kofana and

6. John Biliki represented by Mr. Billy Titiulu.

7. Timothy Feru and

8. Jackson Paoki self represented

A voire dire hearing was accordingly conducted to determine the issues of admissibility of those caution statements. The grounds of challenge are the non-voluntariness of those statements, or that in the discretion of the Court it should refuse to admit those statements as having been unfairly obtained or that its use would in some way be unfair to the accuseds.

At the out-set I remind myself of the burden of proof on the prosecution to discharge; which is no less than proof beyond reasonable doubt.

1. JOHN MARK TAU

There are two sets of caution statements. The first one was obtained on the 14th of January, 1993 in the presence of Detective Sergeant Martin Karani and Detective Constable John Rove. An additional interview was conducted on 20 January, 1993 and another one on 29 January 1993.

The second one was obtained on the 16th January, 1993 in the presence of Det. Sgt. Manelusi and Detective Constable Manelugu. An additional statement was obtained on 3rd February, 1993.

There are two grounds of challenge to the admissibility of these caution statements. First, is the ground on non-voluntariness. This is based on what is now a recognised head and an extension to the principle formulated in Lord Sumner's speech in Ibrahim v. R [1914] A.C. 599; that of "oppression ".

Under this head, of "oppression", a number of factors were referred to by defence counsel. First, is the presence of police officers at the time of the interview. The submission of learned Counsel is that any interview can be an intimidating affair. This however, can be accentuated by the presence of more police officers. In other words, more police officers raises the level of intimidation.

Under cross-examination, the police witness Martin Karani, explained that the room in which the interview was conducted contained about five desks. He says that he could not recall how many police officers were present in the room during the interview, but that it could not have been full. He further explained that that room is accessible only to police officers who worked there. These could come in and out but would be busy with their other jobs. He stated that he couldn't recall if there were police officers interfering with the interview or standing around during the interview.

The other police officer who was also present at that time, John Rove, however, was not cross-examined on this point.

The evidence of the accused on this was that prior to that interview on 14 January 1993, he had been earlier arrested on the 10th January, 1993 at Nuatabu Village, Choiseul Island and then brought to Taro. He was never informed of the reason for his arrest however. On the 13th January, 1993 he flew by plane to Honiara. He arrived at Henderson Airport at about 4.00 p.m., and was taken straight to Rove. He was then asked to give a statement in the presence of Sisimia, Rove, Martin Karani and others, but refused.

In his examination in chief, he states that he was frightened when they wanted to get his statement. They told him that if he did not tell his story about the other accuseds, then he would be kept in the cells. He was also told that other accuseds had given their statements and so were released. When he heard this, he made up his mind that he wanted to get out. He did not want to stay in the cells.

He was kept in the cells on the night of the 13 January, 1993 at Central Police Station.

On the 14th January, 1993, he was taken to Rove CID/HQ for an interview. Under cross-examination, he reiterated that he was frightened when he was made to sit in front of the police officers conducting the interview as it was his first time. The police officers who were present at that interview he identified as Rove, Karani, Sisimia and a police officer from Kwaio. He states that they came and stood around him and so he thought to himself that if he did not say anything that they would "kill" him; i.e. assault or attack him.

The submission of defence Counsel here is that taking the following factors together:

1. that at the time of arrest he was never informed of the reason for his arrest on the 10th January, 1993;
2. that he had been kept in custody from the 10th to the 14th of January, 1993 (a total of 4 days) before being taken before a Magistrate;
3. that he had left his family at Choiseul, and therefore was worried about them;
4. that he had refused to give a statement on the 13th January, 1993;
5. that when he was being interviewed, the presence of the police officers identified by the accused in the interview room intimidated and frightened him into giving his statement which was false;
6. that he was told by the police officers that if he did not give a statement implicating the other accused, then he would be kept in the cells, and telling him too that other accused who had given statements had been released;

that those taken together would raise a reasonable doubt in the Court's mind as to the voluntariness of his statement. In other words, that as a result of the above factors, his "will to remain silent and not confess" was overborne.

Burden of proof - that the accused's will was not overborne.

I will address the above six points separately bearing in mind what the prosecution has to discharge.

1. It is most unusual for any arrest to be effected without notifying the arrested person the reason for such an arrest. It is a standard requirement and all police officers should be familiar with this.
2. I must rule against the accused's claim in that there is clear evidence to show that prior to that arrest he had already been made aware of the fact that the police were investigating his involvement in the payment of certain money processed by him on the 10th of April 1992 to a certain customer on the presentation of a cheque. On or about the 15th of December, 1992. he had made a voluntary statement to police denying any involvement. This was only some 25 days prior to his arrest. I doubt if he would still have forgotten about those enquiries that the police were making. So even if it was true that he was never informed of the reason for the arrest (which I certainly doubt), I am not totally satisfied that he was completely in the dark. That point raised therefore in my respectful view is not as serious or significant as may have been suggested.
3. The period spent in custody (4 days), before being brought before a magistrate is also not as serious as has been suggested, when the circumstances surrounding it are considered in their perspective. Taking into account the geographical isolation of Choiseul Island from Honiara or Gizo where the nearest magistrate may be available, it is only understandable that the accused was brought before a magistrate on the 14th January, 1993, the very next day of his arrival in Honiara on the 13th January, 1993. Bearing in mind that Court business usually close at around 4.30 p.m., it is only reasonable that the accused was brought before a magistrate the next day. Note, he arrived in Honiara at about 4.00 p.m. on 13 January, 1993.
4. It is inevitable that he had to leave his family behind, but that was through the due process of law and not by anything else. Most certainly, he would have been troubled, worried and concerned about leaving his family, but I do not think that can be used to justify the claim that his statement was involuntary. A truly innocent person would maintain his innocence in the face of such separation and would not in my respectful view be so hasty to give a false statement incriminating himself. I do not think this point can be stretched any further than to say that it would be the normal reactions of any person. It has not been shown that this accused was not a normal person, or that this affected him more than what a normal person would experience. At least he knew, or would be aware of what was going on.
5. The claim by the accused that he was asked to give a statement on the 13th of January, 1993, has been denied by the prosecution witnesses. However, Mr. Lavery has pointed out that the statement which was dated 14th January 1993, at the first page, contained two deletions. One was where the number "4" of the "14th" had been written over a number "3" so that the original date would have read the 13th. The second deletion was a reference to the day on which the interview was supposedly conducted. The original day written was "Wednesday the 13th", but that this was crossed out and the day "Thursday" was written and the number "4" again written over the number "3" of the "13th".

No satisfactory explanation apart from denials have been made, and Mr. Lavery argues forcefully that this corroborates the evidence of the accused that an interview was attempted on the 13th, but that it was refused by the accused. Having heard the evidence, I must defer in favour of the accused here. It is my view that an interview was indeed attempted but on his refusal it was deferred to the next day. This brings me to consider next, point, "(vi)" instead of point (v) first, in that point (vi) is closely connected to point (iv). In his evidence in chief, the accused explained that it was on the 13th of January that the police officers told him that if he did not give his statement implicating the other accused, then he would be kept in the cells etc. However, on that date, he declined to give his statement. I think this is of some significance. One would expect then if what was alleged had been true that he would then have responded positively, immediately, if what had been said had indeed had any effects on him. However, it seems that despite what had been said, it did not have any effect on him. The statement obtained from him was made the next day. The question to consider in respect of this is whether there was a continuing influence or effect on the mind and will of the accused to the next day? There is no evidence to show that what had been said the previous day continued to affect his mind over night and the next day to the extent that he decided then to give a statement, which was false.

The evidence of prosecution witnesses on the use of the above words however was denied by them. In my assessment of the evidence, I accept what the police officers had to say concerning that claim. I do not believe the accused that any such statements or promises were made to him by any police officer.

On point (v), I am not satisfied and I do not believe the accused when he said that he was so very frightened of all the police officers in front of him and others present in the room that they would assault him if he did not give a statement. He certainly was not afraid, according to his own evidence on the 13th January, 1993, when he refused to give a statement. There were as he alleged about the same number of Police officers present that evening.

There would also appear to be a significant inconsistency in the defence raised by the accused that the answer to question 15 in that statement, was not given or made by the accused; it was written rather by the interviewing officer himself. This is inconsistent with the defence of the accused in which he also maintained that he had made that statement involuntarily. The fact that there appears to be two inconsistent defence points raised at the same time, goes to affect the credibility of the accused. He cannot have it both ways.

On the other hand, Mr. Lavery has correctly pointed to blatant omissions in the caution statement concerning references to the accounts and cheques that were shown to the accused during the interview, but not recorded. Mr. Lavery argues that if that was the case with that statement, then it is equally possible to argue that the police officers may have deliberately omitted to record any adverse references to themselves and their actions. He therefore asks the Court to believe what the accused says as against what the police have stated in evidence.

With respect to the references to the accounts and the cheques, shown to the accused, it is my respectful view that this omission is not fatal to the question of involuntariness. It would only be natural for the interviewing officer to show to the accused the account numbers and cheques to the accused to verify as correct and true or not, though I do accept that when that is done, as a matter of practice it should also be noted in the record of interview

All in all, I am not satisfied that the accused had shown so that there is a reasonable doubt in my mind that his will had been sapped by those factors raised and circumstances surrounding the interview on the 14th January 1993, to the point that he had been overborne to give a statement, and that accordingly it must be rendered involuntary. I am satisfied that regarding that statement, prosecution have shown beyond reasonable doubt that the accused gave the statement of his own free will and choice. I rule that that caution statement be admitted.

Caution Statement dated 20th January, 1993.

There doesn't appear to be any challenge to this statement.

Caution Statement dated 29 January, 1993.

The crucial matter in evidence raised here relates to the omission of a witnessing officer. However, with respect it has not been shown that the absence of such an officer, whether deliberate or not is material to the question whether the will of the accused was overborne. There is no evidence to that effect. The omission in the circumstances of this case amounts to nothing more than a mere technical error and committed by inadvertence than deliberate. I am satisfied this additional statement should also be admitted.

Caution Statement dated 16 January, 1993.

This statement was obtained from the accused in the presence of Detective Sergeant Manelusi and Detective Constable Manelugu. The main ground raised in objection to the admissibility of this statement was again on the around of involuntariness.

Again it was alleged by the defence that there were a lot of police officers present in the interview room and which caused a lot of fear and intimidation on the accused. In his evidence however, Detective Sergeant Manelusi explained that he was not aware as to who may have been present as well because he was concentrating on the interview with the accused. He did point out however, that their office was restricted to only police officers who work and use that office and that accordingly, only police officers who had business there would be present in the room. On the evidence before me, I am not satisfied that a reasonable doubt had been raised as to the suggestion that the presence of other police officers in the room interfered with or had an adverse effect on the accused so as to intimidate or frighten him.

Another suggestion raised by the defence related to the claim of the accused that when he was asked question 18, he simply told the police officers to write down what they thought and that he would sign. This allegation however was denied by both police officers, who pointed out that had it been said, then it would have been recorded. Both officers also denied issuing any promises to the accused. They also denied suggesting any answers to the accused so that the answers written could not effectively have been from the accused. I have listened carefully and observed both police witness on their evidence but have not reached the conclusion that a reasonable doubt had been raised by the defence as to the voluntariness of that statement. I accept the evidence of prosecution witnesses that a caution was given to the accused before the interview was commenced. I also accept their evidence that the statement was duly read back to the accused and that after indicating that he agreed with what was said he attested his signature at page 10 of the statement. This was duly witnessed by both police officers. I am satisfied in all the circumstances that the caution statement was given voluntarily and therefore admissible.

This brings me to consider briefly the additional statement of the 3rd February, 1993. The submission of defence Counsel here was that no caution had been given and so the statement could not have been obtained voluntarily.

However, the police officers stated that a verbal caution was given. Mr. Lavery seeks to submit that no verbal caution had been given because otherwise, it would have been recorded. Both police officers remembered clearly that a verbal caution was given. This is confirmed or evidenced at least on the records of interview at page 1, with a note to that effect. The mere fact that a verbatim record of the caution given was not made is not fatal to this case. What is important to note is that a caution was given and that it was understood by the accused. I do note though the submission of Mr. Lavery that it is open to conclude that because of the difficulty in recall after such a length of time had elapsed, that in the absence of proper and accurate records this Court should give the benefit of the risk or doubt to the accused. In this case, I am satisfied beyond reasonable doubt that a verbal caution when he had already admitted that a caution had been administered to the accused. However, I must stress the importance of keeping accurate records in the future. I am satisfied too that that additional statement had been given voluntarily.

2. STANLEY BADE

The crucial challenge in the voir dire is that again of oppression, on the ground that he had been overborne to give a statement by threats made to him by Martin Karani to place him in the segregation unit. Secondly, by assault and the use of physical force on his body.

On the use of threats levelled against this accused, he (M. Karani) states that he did not say such things at all. He remained firm under cross-examination. In re-examination it was made clear by Martin Karani that the recording officer was Constable Rove and not him. In other words the person doing the actual interview, asking the questions etc., was Constable Rove and not him. He denied using any force or threats to the accused that he would be placed in the segregation unit in Rove Prison. pointed out that he is not involved in and had no right to dictate to anyone which prison cell the accused should be placed in.

One of the accusations also raised by the defence was that throughout the interview, Constable Rove would leave the room and return. This witness however pointed out that if that had been the case then there would have been no interview.

He also denied assaulting the accused, or kicking him. He denied re-constructing the statement for the accused

Constable Rove also denied any allegations that he was neither the recording officer on the 2nd January, 1993 or that he was not present throughout the whole period of the interview. He also denied threatening to place the accused in the segregation unit, or that Karani assaulted the accused by slapping his face and kicking his back.

The evidence of the accused on the other hand was that only himself and Karani were present on the 2nd January 1993, when the interview was conducted. Karani was both asking the questions and recording them. He also said that it was during that time when they were alone that he was assaulted by Karani by slapping his face and kicking his backside when he refused to cooperate in answering his questions. It was also during that time too that he was threatened to be placed in the segregation unit and promised that he can be taken to the Naha Police cells if he cooperated and agreed with what police wanted him to say. At Naha he was told that he would have the privilege of seeing his family and relatives. As a result of all these and of the fact that he had been in custody for a long time and wanted to get out, he just followed what Karani wanted. He stated that all the information were provided by Karani and he simply agreed with it.

Under cross-examination it was significant to note that when he was asked whether what he had said about being placed in the segregation unit was true or not, he took some time before saying that it can't be true. On the question as to whether there had been a threat to place him in the segregation unit if he refused to cooperate with the police, I am satisfied beyond reasonable doubt that prosecution witnesses have shown that such a threat was never made against this accused. I accept and believe the evidence of prosecution witnesses as against that of the accused. I also accept and believe the prosecution witnesses that no assaults, whether by slapping or kicking were committed against this accused by Karani.

On the question as to whether an inducement was provided, again I am not satisfied so that there is a reasonable doubt in my mind that the prosecution witnesses promised the accused that he would be placed in the Naha cells if he cooperated with police. The fact that he was placed at Naha cells is not denied. When Karani was asked under cross-examination on this point, he could not re-call what reason was given for placing the accused at Naha. Constable Rove was not cross-examined on this point.

In contrast, under cross-examination, it was put to this accused by Mr. Mwanesalua that he was frightened to stay at Tetere or Rove Central Prison and so asked specifically to be placed there for his own safety. He was also reminded of an earlier case which occurred whilst he was at the Naha cells, of an assault on him by a Prison Officer, and as a result of which charges of assault were laid against that prison officer by the police. It was put to him that he had stated in open Court that he feared for his safety because of the prison warders that had been implicated in his statements and that that was the very thing which occurred to him when that prison officer gained access to their cells and assaulted him.

With respect, I find his explanations unsatisfactory, vague and evasive. A prison officer would not assault him for nothing. He could not explain why in an earlier Court hearing he had indicated that he had feared for his safety because of what he had said in his statement implicating some prison warders and that his fear proved correct when he was actually assaulted by a senior prison officer for what he had said in his statement. I do not believe his explanation that he had been placed at the Naha cells because he had been promised by the police officers to be placed there if he cooperated, and that that was what happened after he had given his statement.

Additional Statement of 26 January, 1993.

In this statement, Constable Rove was the interviewing officer whilst Jack Goulolo was the witnessing officer. The main thrust of the objection here was again that the accused was threatened that he would be placed in the segregation unit if he did not cooperate, and that he was forced. To the first allegation, Jack Goulolo's response was that he did not know. The second allegation was denied. Another suggestion put to that witness was that what was recorded was a reconstruction. This was also denied by that witness.

Caution Statement of 10 and 11 January, 1993.

The interviewing officer for this statement was Detective Sergeant Manelusi, while Detective Constable Rove was the recording or witnessing officer. Under cross-examination Detective Sergeant Manelusi explained that the accused was placed at Naha Police cell at his own request. He also denied threatening to place the accused in the segregation unit or instructing the prison authorities to place him in the segregation unit if he did not co-operate. He also denied the suggestion that Constable Rove was not present right through the interview; that he went in and out of the interview room. He denied emphatically when it was put to him that the accused gave the statement because he was frightened of being placed in the segregation unit. He also denied the suggestion that the statement was his reconstruction of what happened.

In contrast, the evidence of the accused was that he was alone with Manelusi when he was threatened with being placed in the segregation unit, and promised that if he co-operated he would be kept at the Naha Police cells. He also said that if he co-operated, he was told by Manelusi that the charges against him would be withdrawn and that he would be used as a police witness. He said, he believed all these, and so gave his statement on the 10th January, 1993. He also said that Constable Rove left the room several times during the interview. He also alleged that Constable Rove threatened him with being placed at the segregation unit.

Having heard the evidence and observed the witnesses carefully, I am not satisfied that it had been shown by the defence so that there is a reasonable doubt in my mind that the alleged threats, inducements and promises were committed by the police officers against the accused. I believe the evidence provided by the prosecution witnesses, and reject the explanations provided by the accused concerning those threats and promises. I am satisfied that prosecution have discharged the burden placed on them that those statements were given voluntarily. No evidence or submission has been adduced on the question of the exercise of the courts discretion to exclude such statements, though voluntarily given. on grounds of unfairness. I rule accordingly that these caution statements be admitted.

Caution Statement of 19 January, 1993.

This was made in the presence of Detective Constable Rove and Detective Sergeant Maneforu. Both police officers stated clearly that no threats, promises or force were used. I accept their evidence. I do not believe the accused that he did not give his story of his own free will or that his will had been overborne by the fact that those police officers had threatened to place him in the segregation unit. As correctly pointed out too by those officers, they do not have the power to determine where to place those prisoners or remandees or even to dictate to Prison Authorities where those accused should be placed simply because they refused to answer questions. The important point to note here is that I am not satisfied that such threats were even made or a doubt raised whether they had not been made. I am satisfied this statement should also be admitted.

3. JOHN TEOHU

There are a total of five statements obtained from this accused. The first one was made on 3rd January, 1993 in the presence of Detective Constable Goulolo, and Detective Sergeant Karani. The ground of challenge as raised by the defence is again that there were threats, or force applied and promises given, such that the statement was involuntarily given.

Under cross-examination, it was put to Martin Karani that he spoke roughly to this accused and threatened to slap him if he did not co-operate. It was also put to him that he threatened to place the accused in the segregation unit. These however, were all denied by that witness. Under reexamination he re-affirmed his denials of the allegations made against him.

On the 4th January, 1993, another interview was conducted this time by Constable Rove and Manelugu. In cross-examination, Constable Rove denied any knowledge as to whether the accused had been remanded at the segregation unit prior to the interview. He also denied any suggestions that he threatened to tell the prison officers to place him in the segregation unit if he refused to cooperate. He denied slapping the accused, or saying that he should admit his involvement because it was not his dad's money, or that 'Malaita people can steal'. He also denied threatening to slap the accused.

A number of matters were then put to him, but which he replied that he could not re-call or remember. He was then asked about the statements made on the 11th of January 1993 and subsequently. His response was that on the 11th, the accused refused to give any answers to his questions. On the 13th January, 1993, the accused was prepared to give answers to questions put to him. The suggestions put to Constable Rove by defence Counsel was that the statement of the 13th was given as a result of the threat of being placed in the segregation unit. Constable Rove however emphatically denied applying any threat to the accused.

Detective Constable Manelugu also denied applying any threats or force or any promises to the accused. One of the suggestion put to him was that he had told the accused that if he admitted his involvement in the case, that his sentence would be made to run concurrent. This was denied by this witness. Other matters were also put to this witness, but many he could not re-call.

In contrast, the accused stated on oath that he was first assaulted in the face in the vehicle whilst being transferred from Tetere Prison to Rove CID/HQ, because he refused to answer the questions being put to him by Karani. He said that he told Karani that he wished to give his evidence in Court but that this was refused. He claimed that he was threatened by Karani that if he did not give his statement he would be placed in the segregation unit. This witness stated that he gave his statement only because of the fear, threat and force applied to him. He says that he had stayed in the segregation unit for some 9 months and described it as "hell on earth". He says that when the segregation was referred to, he became very frightened. He says that he did not want to go there again.

On the 4th January, 1993, before the interview was commenced, he was asked by Manelugu and Rove where he had spent the night, and when told that it was at the segregation unit, he was promised that he would be moved to the main unit if he co-operated. As a result of that promise he gave his statement. On the 11th of January, however, he refused to give any statement. On the 13th of January, he alleged that Constable Rove slapped him before the interview commenced and told him that he must give his statement. That same officer then told him that he would assist him so that his sentence will run concurrent with the current sentence of 6 years that he was serving if he spoke the truth. He says that the statement on the 19th January was also obtained by force, fear and threat After the 19th he was moved to the main unit.

Under cross-examination however, a number of inconsistencies were brought out by Mr. Mwanesalua. First, this related to the point about where and when he was first informed on the 4th of January 1993 about what was going on. In chief, he pointed out that he was informed whilst waiting outside the police van at Tetere. Under cross-examination by Mr. Mwanesalua however, he stated that he was informed only in the van whilst on their way to Rove. When this inconsistency was pointed out, he replied that they started to inform him at Tetere.

The second inconsistency or somewhat unclear explanation given by the accused related to the questions asked concerning the caution that had been given. He not only acknowledged that a caution had been given but stated that he understood it. He then alleged that he had been forced to sign and acknowledge that a caution had been given. With respect, there doesn't appear to be any logical explanation as to why he should want to be defensive about attesting his signature to the caution when he had already admitted that a caution had been given to him before the interview was conducted.

The third inconsistency related to questions being asked in that statement about a cheque and an account number. His response to a question whether he was asked if he wanted to say anything about that cheque and the account number, was, "Yes they asked me questions". He repeated his answer using the word "they". At this, it was put to him if there were actually two persons present during the interview, namely, Karani and Goulolo, and not merely Goulolo as alleged by him. His answer that it was only Goulolo, was unconvincing.

On the issue of having been remanded in the segregation unit for 9 months, it became clear under cross-examination that he was not the only one remanded there, and that the reason was because there was no remand cells. In other words, the segregation unit was being used as a remand cell. The remand cells had been dismantled at that time. I do not think anything of significance can be raised on this point, and that what the accused had stated in examination in chief, that it was "hell on earth" and that he was all alone, were mere distortions calculated to give an impression favourable to the accused.

As to the statement given on the 4th January, he stated that he was threatened and induced and forced to give the statement. However, he later conceded under persistent cross-examination from Mr. Mwanesalua that no threats or force were used. When he was asked why he didn't remain silent after he had been cautioned, he simply stated that he was told that he must give his statement.

Another inconsistency in the evidence of this accused occurred when he was asked about the statement of the 13th January, 1993. His allegation was that he had been forced to give that statement. When asked at what time that force was applied, he stated that it was during the interview. However, he then later said that it occurred before and during the interview.

As to the statement obtained on the 19th January, 1993, he again stated that he was forced to give his statement. He also added that Constable Rove told him to admit his involvement in that additional statement but couldn't specify what it was. He also couldn't re-call what force was applied.

Despite what has been alleged by this accused, I am not able to accept his accounts as truthful. His credibility had been so attacked and discredited by the prosecution that despite the fact that the police witnesses on a number of occasions could not re-call certain matters, it has not been shown to my satisfaction so that there is a reasonable doubt in my mind that those statements had been given involuntarily; that is that this accused's mind and will had been overborne so that he was no longer exercising his free will. The various threats, force and inducements alleged to have been committed, I do not find on the evidence before me to have been committed by the prosecution witnesses. The evidence of the accused is so fraught with inconsistencies that I find it difficult to rely on it.

I am satisfied that those statements obtained from this accused had been given voluntarily and I rule accordingly that they should also be admitted.

4. DICK OKEA

There are four caution statements in respect of this accused given on the 5th, 13th, 16th and 19th January, 1993. Again the main objection raised was on the grounds of involuntariness. It was alleged that he was threatened to be placed in the segregation unit and that he would be slapped and not given food.

In cross-examination, Martin Karani, who was the interviewing officer in the statement of the 5th January, 1993 denied all the above allegations. One of the claims put against Martin Karani too was that he was alone with the accused and that the witnessing officer, Detective Sergeant Maneforu only came in to sign the statement at the end. However, this was also denied by that witness.

Detective Sergeant Maneforu also denied leaving the interview room several times and or that he came in only to sign the statement at the end. He also denied that any threats were made by Sgt. Karani to the effect that the prison officers would be informed to place him in the segregation unit. He also denied threatening not to feed the accused if he did not co-operate.

Caution Statement of 13th January, 1993.

The interviewing officer for this statement was Karani, whilst woman Detective Constable Taro, was the witnessing officer. Under cross-examination, WDC Taro denied the allegations of any threats against the accused.

In contrast the evidence of the accused was that he had been threatened and not fed for one day and night. He also claimed that he was alone with Karani in the interview of the 5th January, 1993. However, the evidence of the prosecution witnesses on this is quite clear; that there was a witnessing officer present. Also on the 13th he denied that anyone else was present apart from Karani. However, the evidence is again very clear that WDC Taro was the witnessing officer who was present at that interview. I find her to be a truthful and reliable witness

The accused also alleges that he was told that he should co-operate with the police because he had only been charged with receiving and that therefore his sentence would not be severe. He also claims that the statement of the 19th January was involuntary. I have observed this witness giving evidence, and must note that I have not been impressed. I find him evasive and unsure of himself. On the other hand, I am satisfied about the evidence of the police witnesses that no such threats, inducements or force were applied to this accused. I am satisfied that his statement had been given voluntarily and must accordingly be admitted as well. These include the additional statement of the 19th January, 1993.

5. JAMES KOFANA

A total of three statements had been obtained from this accused, dated 4 January, 1993, 18th January, and 29th January, 1993. The grounds of challenge raised here is on the oppressive conduct of the police officers, such that it would not be fair to allow these statements to be admitted. First, it was alleged that an attempt to get a statement from the accused was made on the 3rd of January, 1993, but that he refused. It was alleged that this was corroborated by Sgt. Kola's evidence. It was alleged that in that period the accused was coaxed and subjected to persistent questionings by Detective Constable Goulolo. Also he had not been fed since the 3rd of January, 1993 and so was very hungry. He was then told that he would be given food after he had made a statement. The accused accordingly gave a statement as a result of that inducement to ease the gnawing pangs of hunger.

First, was there evidence of coaxing and persistent questioning from Detective Constable Goulolo? Under cross-examination, Detective Constable Goulolo conceded that he did take the accused to a room where there was a fridge (which would be the pantry room) and stayed with him alone until he was taken to the Rove Prison for remand that night. He denied talking to the accused, coaxing him and applying pressure on him to give a statement. Under re-examination he explained that he stayed with the accused to prevent him from escaping as he had already been arrested.

In contrast, the evidence of Sergeant Kola is slightly different. He stated that after he had effected an arrest on the accused, the accused asked if he could speak with his wife to let her know of his whereabouts. Sgt. Kola stated that he gave permission and told Goulolo to provide assistance to the accused. He however, denied any suggestion that Goulolo may have been alone with the accused in the pantry room for any length of time.

Later on under cross-examination he did concede that he had given instructions for the accused to be interviewed on the 3rd January, 1993, but that the accused had been "stubborn". This concession after persistent questioning, supports the evidence of the accused that an attempt to take a statement from him on that date had been made butt that he had refused.

On the evidence before me, l accept the version of the accused that prior to the purported interview of the 3rd January, he was with Goulolo, and that after he had refused, he was left alone with Goulolo in the pantry room for sometime before being taken to the cells for remand overnight. This brings me to consider whether during that period that he was alone with Detective Constable Goulolo, that he was being coaxed, questioned and pressed to incriminate himself. With respect to the submissions of Mr. Mwanesalua on this point, it is my view that the accused's version has the ring of truth as compared to the flat denial and or lack of re-call on the part of Goulolo. There is a reasonable doubt in my mind and that must go in favour of the accused. I am not satisfied that on this point it had been shown beyond reasonable doubt that there was no coaxing and questioning applied to the accused by Goulolo.

The next allegation raised was that he had not been fed since the 3rd of January 1993, and that therefore he was hungry at the time the interview was conducted and so induced to give a statement. There is no direct evidence on the point whether the accused was fed at the cells in the morning of the 4th January, 1993, or not. The accused said that he had not been fed and so was very hungry. However, when he told Goulolo about this, he was told that if he co-operated with them, that he would be assisted. The interview commenced at about 0945 hrs and ended at 1300 hrs. Both prosecution witnesses, Maneforu and Goulolo could not remember whether the accused was given a packet of noodles.

Under cross-examination from Mr. Mwanesalua, the accused conceded that those statements were his own stories. The question before me however is whether on that date of the 4th January, 1993, his will had been overborne. Bearing in mind his refusal to give a statement on the 3rd of January, 1993 and my finding that there is a doubt as to the question whether he was fed coupled with the possibility that he may have been induced with the promise that he would be fed, if he co-operated, and the persistent questionings on the previous day, I am not satisfied that that statement of the 4th January had been voluntarily given, and accordingly I must rule in favour of the accused, that it be excluded.

The next interview was conducted on the 18 January 1993 in the presence of Goulolo and Sisimia. The crucial challenge raised here relates to the "answer 3" of that statement, in which the accused was recorded as saying: "mi no garem anything nao for talem nao. " Defence Counsel argues that despite the above statement, the police officers continued to ask questions. He argues that the accused's right to remain silent had not been respected and that accordingly the Court should exclude that statement.

On one hand, the above quotation could be interpreted to read as "I wish to exercise my right to remain silent". On the other hand, it is arguable whether that was what was meant. With respect, I do not think that what the accused meant was that he intended to exercise his right to remain silent. If that was so then he could have expressed it clearly. I do not accept that the fact that further questions were asked meant that force had necessarily been applied or that no further questions should be asked. There is no evidence to support the allegation that force had been used. Accordingly, I must reject the claim that force had been applied on the accused to give his statement.

Another point raised by Kofana was that he was forced to give an additional statement because of the living conditions in the long term unit cell where he was remanded. However, as correctly, submitted by Mr. Mwanesalua, there was a valid, and satisfactory explanation for that. The remand cells had been destroyed and so remandees were usually kept at the long term unit or the segregation cells. He had not been singled out therefore for such treatment.

It was also argued that after question 3, the accused was forced to give his statement and despite being told that he had nothing to say, he was continuously pressured to give an answer and so he simply told them to write the answers and he would sign. Both prosecution witnesses however denied these allegations. Having heard and observed the witnesses, I am satisfied a caution was issued and that it was understood by the accused. I also note that he signed at the end of the statement and that there is no evidence to show that this was not voluntarily done. I accept prosecution's evidence on this point and must rule in its favour.

The final statement was taken by WDC Taro on the 29th January 1993. A caution was given and recorded and the statement signed by both the accused and the recording officer. There is no dispute that the record of statement was not witnessed. However, in my respectful view, this was not fatal. There has been very clear evidence given by WDC Taro that no force, threats and inducements of any sort were made against the accused. I accept her evidence. On the other hand, I reject the evidence of the accused that he may have been forced to give that additional statement.

I note that a further ground on public policy and unfairness had been raised by defence Counsel in that the accused throughout that period whilst on remand had been kept at the long term unit together with other prisoners and that therefore this would have had an adverse effect on his will. Although the sentiments expressed therein have been noted, it does not seem that this accused had been singled out. The explanations given and agreed on were that there were no remand cells and that accordingly these accuseds were remanded in either the long term unit or the segregation units. I am not satisfied taking all relevant matters into account that these grounds raised are sufficient in the circumstances of this statement obtained on the 18th and 29th January to enable me to rule that they should be excluded. I am satisfied those two statements had been voluntarily made and accordingly should be admitted.

6. JOHN BILIKI

The crucial challenge in this voire dire relates to the allegation of this accused that he had been induced to give his statement by the promise made to him that he would be transferred to the Naha Police cells and made to serve the rest of his term there if he co-operated with the police investigators.

The first statement of this accused was made in the presence of Detective Sergeant Karani and Manelusi. Karani's evidence on this crucial point was that it was the accused himself who had requested that he be placed at Naha because he feared for his safety at Tetere. He stated that they respected his wish and after assessing and considering his request, they agreed to place him at Naha. He denied in cross-examination having made any promises to the accused that he would be placed in Naha if he co-operated, or that it would be more convenient for them to have easy access to him to extract information from. This witness (Karani) also explained that the accused could not be taken to Rove Prison because of the involvement of some prison officers stationed there as well. I note that this witness remained firm throughout persistent cross-examination by defence Counsel. In re-examination this witness reiterated that the accused feared for his safety from prison inmates and officers and so was kept at Naha. Arrangements were then made with Central Prison for purposes of feeding him.

The other police witness was Manelusi, but was not cross-examined about any promises made to John Biliki.

In contrast, the accused states that a promise was made to him that he would be placed at Naha with many privileges, if he gave a statement. He alleges that it was that promise which induced him into giving that statement. When it was put to him that the reason for placing him at Naha was because he feared for his safety, he denied this. He also denied that he had any enemies at Tetere Prison. He stated that he had nothing to fear because he had a very good relationship with all prison officers and inmates. The only time he says he received a threat was when a senior prison officer entered his cell when at Naha one night and assaulted him. His explanation for this assault was that there had been many complaints made to the Prison Authorities that he was being given many privileges as compared to those who were kept at Tetere or Rove Prisons and that as a result, that Prison Officer got angry with him and assaulted him. With respect, I find his explanation unconvincing, and especially when he could not even recall in cross-examination, that he had earlier admitted to the Police about his fear, in the trial against that Prison Officer. In other words, the very reason for transferring him to Naha was because of his fear for his safety, and that he had made that request himself.

I am not satisfied that the accused was speaking the truth about the reason for the assault. If what he said was true, then it is more likely than not that the Prison Authorities would have sent a senior prison officer at night to assault him. They would rather have gone through the proper channels and require that his privileges be curtailed. I simply do not believe his explanation. I accept instead the evidence of prosecution witnesses that no such promises or offers were ever held out to him, and that the transferral to the Naha Police cell was done at his request and in the discretion of the appropriate authorities for his own safety. It is to be noted that he was not the only one placed there. There was another prison inmate who was kept there as well.

I am satisfied he was cautioned in respect of both statements, that he clearly understood the nature of the caution and that he voluntarily signed at the end of the statements to signify his approval and acceptance of the statements as correct. I rule that those statements be admitted.

7. TIMOTHY FERU

The challenge raised in this voir dire by this accused related to offers of help and quick release from custody if he co-operated. Also it related to threats of being placed in the segregation unit. Under cross-examination however, this accused stated that he was willing to talk and gave his story voluntarily after he had been cautioned.

The prosecution evidence in contrast is fairly clear. Sgt. Sau made it quite clear that no force, threats or promises were made to the accused. Having heard and observed the witnesses I am satisfied with the evidence of Sgt. Sau and I accept it as correct and true. I am not satisfied that a reasonable doubt had been raised in my mind as to the involuntariness of this accused's statement of the 2nd January, 1993.

The same can also be said of the additional statement of the 23rd February, 1993. I accept the evidence of both Sgt. Manelusi and D/C Forau that no force, threats or promises were made to this accused. I am satisfied that the accused was cautioned on both occasions, that he understood it, and that he signed both statements as correct and accurate at the end. I rule that those statements are admissible.

8. JACKSON PAOKI

The main challenge in respect of this accused is the threat of being placed in custody if he did not give his statement. He stated that this was made against him by Sgt. Maneforu. The statements obtained from this accused however were made in the presence of other police officers. There is no allegations of threats, promises or force made against those other police officers. In other words he was a willing participant in the interviews. As regarding the additional statement obtained on the 19th January, his submission was that he gave it so that he could be released. However, this accused was not released until sometime in February of 1993. If what he had said was correct then he would have been released by Sgt. Maneforu from custody straight after his interviews, either on the 3rd January, 1993 or 19th January 1993. With respect, it has not been shown to my satisfaction so that there is a reasonable doubt in my mind that his will was overborne, when he gave his statements. He understood the nature of the cautions and gave his story willingly and of his own free choice, and signed those documents voluntarily. I rule that his statements be admitted.

A.R. PALMER,
JUDGE