Regina v Nanango [1996] SBHC 65; HC-CRC 043 of 1996 (13 November 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 43 of 1996

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ter">REGINA

v

JOEL NANANGO

Before: Palmer lmer J

Hearing: 12th November, 1996 - Ruling (voir dire): 13th November, 1996

Director of Public Prosecutions for Prosecution - A. Radclyffe for the Dehe Defendant

PALMER J:

The Court is required to rule on the admissibility of the statement of the accused obtained by Police on 31st May, 1996. A number of grounds have been raised by the Defence challenging admissibility. These are:

(1) That the statement had been obtained in breach of the Judges' Rules in that no caution had been given to the accused, or that if one had been given, that it was defective. Also that the witnessing officer did not append his signature to the caution that had been given.

(2) That the statement had not been given voluntarily in that it had been obtained by oppression.

The facts relied on in support of the first ground can be found in the wording of the caution read out to the accused on the 31st May, 1996. This reads:

"Mi no forcem you for tellem any thing because any something you say by me writem down long paper. You save writem seleva or me writem for you hem side blong you. Sappose you givem story for writem long paper this one too save givem long court sappose you go long court."

Both the Recording Officer, Constable Tabo and Witnessing Officer, Constable Akosawa, confirmed in their evidence in court that the caution given to the accused had been put down in writing and read out to the accused. Both also confirmed that the caution read out was that which had been recorded above. They were of the view that the caution as stated above had been sufficient and complied with the Judges' Rules. I am satisfied that it is not in dispute that no other form of caution had been given to the accused, prior to that interview

The relevant Rule relied on for the above caution it seems was Rule 2 of the Judges' Rules. That rule states:

"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence."

It appears that the part which states: "You are not obliged to say anything...." had been translated by the Recording Officer in pidgin as "Mi no forcem you for tellem any thing...." Mr. Radclyffe for the accused argues that the above translation does not correctly convey the essential element sought to be given, which was that the accused had the right to remain silent if he so desired. On the other hand it could be argued that what was meant by the above translation was that the accused was not being forced in any way to give a statement but that if he did say anything, it was done in his own free will.

For present purposes, I am prepared to accept that the caution may not have been accurate and give the benefit of the doubt in favour of the accused. If that was the case, that the caution was not sufficient, and that accordingly, the accused had not been satisfactorily cautioned, what is the effect of this, if any, on the question of admissibility of the statement of the accused

First it is important to bear in mind that where it is alleged that the statement had been obtained in breach of the Judges' Rules, the court has a discretion to admit or reject such evidence (R v. Voisin (1918) 1 K.B. 531; R v. Wattam, 36 Cr.App.R. 72, 77; R. v. May, 36 Cr.App.R. 91, 93; R. v. Bass (1953) 1 Q.B. 680; R. v. Ovenell (1968) 1 All E.R. 933). In R v. Voisin, (supra), per judgment of Lawrence J., his Lordship made the following pertinent remarks-

"These Rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners contrary to the spirit of these Rules may be rejected as evidence by the judge presiding at the trial."

Also in an Article by C J Miller titled "Silence and Confessions - What are they worth?, in the Criminal Law Review, published in June 1973, page 343, at page 344, the learned Author also made the following pertinent comments:

"A failure to adhere to these Rules will not itself render an incriminating statement inadmissible, but it will render it liable to be excluded by the trial court judge in the exercise of his discretion."

The learned Author also pointed out in a note appended to his Article that cases such as Prager (1971) 56 Cr.App.R. 151, indicate that the Court of Appeal favours a general policy of admissibility, provided that the statement is voluntary.

From the above statements of law, the fact that a caution may have been defective as in this case, and not witnessed by the witnessing officer, does not automatically imply that it should be excluded. The trial judge still has a discretion to exclude it or not. In exercise of that discretion, the court must take into account the circumstances surrounding the making of that statement; in particular on the question of voluntariness of that statement. It is important also to note that the right of the accused to remain silent, is not dependent on the caution, and that a failure to give a caution is a fundamental breach of that right. The right to silence is separate and distinct to the rule of practice that a caution must be given. That right is a right which the Accused already possesses at common law and that all that a caution merely serves is to remind the Accused of that right (see the case of Hall (1971) 1 All E.R. 322, 324, per judgment of Lord Diplock). As a matter of practice he should be reminded of it, but where there is a failure to do so, the Court must look at the surrounding circumstances.

I am obliged therefore to consider next the second ground raised before ruling as to how the discretion should be exercised.

I note by contrast that as to the question of voluntariness, if prosecution fails to prove beyond reasonable doubt that the statement had been obtained voluntarily, there is no discretion involved; the court is obliged by law to reject the statement. This is the overriding principle referred to in the Preamble to the Judges' Rules which states:

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer, or of any statement made by that person that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression.

The specific matters relied on by the Defendant were that he was at the time of the interview still emotionally upset and therefore was not in a fit state to give a statement. Coupled with this, he had just been brought over from Mono Island, in a patrol boat together with the victim the previous night and that the whole incident was still fresh in his mind. He had also indicated under questions put in cross-examination to prosecution witnesses that he had asked for the assistance of a Solicitor before giving any statement but that this had been refused, and that he had been told by the police officers that it would be better for him to make a statement as he would be frightened when he went to court and would not be able to speak clearly. Also that there were promises of help held out to him.

As to the question whether the accused was in a fit state to give a statement on 31st May, 1996, the Recording Officer, Constable Tabo did acknowledge in his evidence that the accused did cry in the earlier part of the interview but that he was given time to recover before the interview was continued. Both officers denied when it was put to them that the accused had indicated to them that he wished to see a Solicitor before giving any statement and that he did not wish to give any statement as yet. It was also denied by both officers that they had held out any promises of help to the accused if he made any statement. The accused did not give any evidence in the void dire.

In their evidence, both officers stated that the accused had not raised any complaints or that he may have been unwell and not able to give his statement. Both stated very clearly that the accused understood the explanations given to him and that he gave his statement voluntarily. They denied that any force, threats, or promises had been held out to him and that the accused acknowledged the statement by signing.

Having heard the Police Officers giving evidence in court, I am satisfied that apart from the evidence pertaining to the accused being emotionally upset, they had shown to the required standard that no force, threat, or any promises had been held out to the accused. As to the display of emotion by the accused when being interviewed, I am also satisfied that this was not related in any way to any threats, force, or promises held out to the accused, but that it was more of a personal reaction by the accused when asked about what had happened. That would have been a normal reaction. There is no evidence to suggest that the accused was unwilling to answer any questions or to give any statement by that display of emotion. There is little evidence to suggest that by that display of emotion, that is shedding of tears, the accused was not in a fit state to give a statement. There is little evidence too to suggest that the will of the accused had been "sapped" or that it had been "crumbled" by anything that the Officers had said or done. If anything, the display of emotion had been made in the normal course of an interview, which would have been a normal reaction by a person in the shoes of the accused, and that it did not show or support the suggestion that the accused had been pressured to the point that his will had been overborne. The Recording Officer did state in his evidence that he gave time to the accused to recover before continuing with the interview. I am satisfied that prosecution had shown beyond reasonable doubt that the statement had been voluntarily made.

Having so found, and after carefully considering the effect of the defects in the form of the caution given, I am still not satisfied, that the discretion should be exercised against admissibility. The defect was not deliberate; more out of a lack of proper appreciation and understanding as to the correct translation of the relevant Rule into Pidgin. There is clear evidence nevertheless that the statement had been voluntarily obtained, and that the accused understood what was happening. If he had not wanted to say anything or refused to answer any questions, or even as suggested by him to see a Solicitor, there is no reason to suggest why that would not have been recorded in the statement of the accused. When all the above factors are taken into account, despite the fact that the form of the caution may have been defective, I am not satisfied that the discretion of the court should be exercised against the admissibility of that statement in this case.

I note the concerns raised by Mr. Redcliffe as to the admissions made by the Recording Officer in Court that a number of questions had been asked but that these appear not to have been recorded. As a matter of practice, all such questions and comments should be recorded in full in the statement, and not assumed to have been immaterial. I am satisfied nevertheless that in the circumstances of this case, the Recording Officer did accurately record all that the accused had said to him, whether it had been in response to a question asked or not. Questions of weight will be addressed at the end of the trial and after hearing relevant submissions from learned Counsels on that point.

For purposes of guidelines as to a possible translation of Rule 2 of the Judges' Rules, I make the following suggestion:

"You Garema right for stap quiet and for no Tallimba anything, but suppose you like for Tallimba something, then my save writem down and givem go long court olsem tok tok blong you sappose you go long court.

ORDER OF THE COURT

Order that the statement of the accused obtained under caution on the 31st day of May, 1996, be admitted in evidence.

ter">Albert R. Palmer,
Judge