Regina v Abusae [1996] SBHC 9; HC-CRC 028 of 1995 (22 February 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Caal Case No. 28 of 1995

REGINA

v

WILLIE ABUSAE

e: Palmer lmer J

Hearing: 13th February 1996, 15th & 16th February 1996

Ruling: 22nd February 199y 1996

Counsel: F. Mwanesalua for Prosecution - P. Lavery for Accused

PALMER J:

A statement under caution was obtained from the accused by the Police on the 20th august, 1995. That statement was the subject of the voir dire hearing in which its admissibility was challenged.

At the outset, it is important to make clear that the prosecution must prove beyond reasonable doubt that a voluntary statement had been made in the sense that "it had not been obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority" (see Ibrahim v. R (1914) A.C. 599). The above classic principle had been extended and accepted in subsequent court decisions to include the requirement that prosecution must also prove that the statement had not been obtained in an oppressive manner by force or by oppression; where such grounds are raised in evidence, (see Callis v. Gunn (1964) 1 Q.B. 495; R. v. Prager (1972) 56 Cr.App.R. 151.).

THE DEFENCE CASE

Two main issues have been raised challenging the voluntariness of the caution statement. Both come under the head of 'oppression'. First, it is alleged that the statement had been obtained by force. Secondly, it is alleged that the manner in which the statement had been obtained amounted to oppressive conduct or behaviour, such that the court should in the exercise of its discretion exclude the admissibility of that statement.

THE EVIDENCE

First, the evidence on the alleged assault. The accused stated on oath that he was assaulted by three different police officers. The first slapped him on his eyes with his open palm. In his evidence in chief, he identified that person as Jack Balaga, the witnessing officer. The second person kicked him in his belly. The third, he alleged elbowed his face. He did not identify however, who the second and third persons were in chief. Under cross-examination, he described the person who had slapped his eyes as using his right open palm. He also explained that that person was sitting on the edge of

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However, if whaf what was meant was that Balaga was that same officer sitti the edge of the table, the, then it is significant that this was not put to Balaga under cross examination. It was never put to Balaga that he got up and sat on the table before slapping the accused.

Secondly, the accused's description about being elbowed on the face by Angisia was never put to Angisia in cross examination to give him opportunity to explain or refute that allegation. In his evidence under cross examination, the accused expressly stated that Angisia stood up, walked over to his side and gave him the elbow. This should have been put to Angisia. If it had been a mere omission then this allegation should also have been put to Balaga under cross examination. This was never done and it would appear that this allegation was a new invention of the accused thought UD on the witness box to give added weight to his defence.

Thirdly, both officers stated that the three of them (that is, including the accused) were sifted comfortably on chairs, with the accused sitting opposite Angisia, and Balaga sitting to the left of Angisia; a table separating them from the accused. One of the submissions raised by Mr. Lavery on behalf of the accused was that the court should not accept the submission of the learned Director of Public Prosecutions, that their sitting arrangements was anything but normal. He relied on the detailed descriptions given by the accused as to where everybody was sitting and how. Unfortunately, apart from the inconsistencies already referred to, the evidence of the two police witnesses as to their sitting arrangements was never challenged.

Apart from the above inconsistencies, I was not impressed with the general demeanour of the accused whilst giving evidence on this point. In contrast, the prosecution witnesses were clear and firm and hardly shaken in their evidence. Balaga was never challenged on how the assault as alleged by the accused in his evidence, had occurred. He was merely asked if he had assaulted the accused with an open hand or not. Angisia was never challenged about any assault at all and how it occurred as alleged by the accused.

Taking all the above factors into account, I am satisfied I can disregard the evidence of the accused on its truthfulness and accuracy. In contrast I am satisfied with the evidence of the prosecution witnesses, that it had been shown beyond reasonable doubt that no assault had been committed, as alleged against the accused.

ALLEGATIONS OF OPPRESSIVE CONDUCT

The crucial submission of defence Counsel under this head of 'oppress/on' as I understand it to be, is that that statement of the 20th August, 1995, was not the statement of the accused; that it was a mere reconstruction or concoction by the police officers carrying out the interview. The accused never made any statement. Defence Counsel relies on the following points in support of his main argument.

(i) Persistent questioning of the accused by the recording officer (referred to in the evidence as 'thorough questioning of the accused').

(ii) The demeanour of the prosecution witnesses as evidenced by their denial of everything put to them in cross examination whether fatal or not.

(iii) The pre-printed form used on page 1 of the statement raises the possibility or doubt that a caution was given or that it was ever read to the accused, and that he was not willing to give his statement to the police or that it be written by them on his behalf

(iv) There was nothing in the statement that was not known to the recording officer. He had been to the scene several times that day prior to the interview, and also had had access to the victim and or her statement. It was further pointed out by defence that the witness, Angisia, was the head at Naha for criminal investigation and therefore would have been kept informed of all the happenings prior to that interview.

(v) The Assistant Commissioner of Police had visited the scene of the offence earlier that day, and that this fact raises the possibility that the interviewing officers would be keen to produce something to impress their 'boss'. He suggests that this further strengthens the defence case about the statement being a mere reconstruction or concoction.

(vi) Finally, defence Counsel referred to the contents of the statement itself and pointed out the use of a number of words which he claims could not have come from the accused, but from the police officers themselves. Also reference was made to the actual sequence of the events described in that statement, with specific reference to the last paragraph of that statement, which mentioned the use of a 'waving hat made of wool'. Defence Counsel submits that there is simply no logical explanation or basis for that paragraph to be inserted at that point, unless it had been deliberately introduced by the recording officer to tie in the accused with the rest of the statement already written.

COURT'S FINDINGS

(i) Persistent questioning: On this point, defence Counsel relied on the evidence of Angisia under cross-examination, where he explained that when the accused was interviewed, he would thoroughly question him regarding the allegations. Defence Counsel pointed out that this witness was asked twice if he thoroughly questioned the accused, and his answer on both occasions was yes. However, when he was shown the record of interview, and told that it hardly contained any questions recorded therein, to show that he had been thoroughly questioned, that witnesses' answers were he submits, unsatisfactory. The explanation eventually given was that he was referring to the clarification questions he asked during the course of the interview. Defence Counsel seeks to submit that this witness was defensive, and in actual fact trying to hide something sinister; that the statement was a mere concoction of the police.

What was the response of that witness? First, he stated that the method adopted for the interview was not the 'question and answer format'. He then stated that the question he referred to was that the accused was free to give his story. When the accused gave his story, he would then interrupt him by asking questions for purposes of clarification. Apart from that, there was no other questions asked of the accused.

To some extent, there does appear to be a contradiction in evidence of that witness; that he did thoroughly questioned the accused but that this was not reflected in records of interview. However, to make the suggestion that this meant that what was written in that statement did not come from the accused, is stretching things a bit too far. At the most, what it could mean is simply that whatever questions were asked were not being recorded. It does not necessarily follow thereby that what was recorded did not come from the accused. It could have that meaning, but it must be weighed against the clear denial of the prosecution witnesses that what was recorded in that statement were the words of the accused, given voluntarily by him and recorded by them.

It could also be argued that the credibility of that witness had been tainted by that contradiction and the court should treat the remainder of his evidence with caution. Even if that suggestion should be accepted, I am not satisfied and not convinced to find that the remainder of his evidence should be disregarded or discounted.

The witness, Balaga was also asked if Angisia or himself asked the accused any questions. He however, basically denied this. His evidence was that the accused gave his statement after he had been cautioned. This witness remained firm in cross-examination and was not shaken in anyway. His evidence in essence confirmed the evidence of Angisia that the only questions asked were for clarification purposes. His credibility had not been tainted in anyway, and his evidence, in particular, that what was written came from the accused, had not been sufficiently discredited. Also the evidence of Angisia on this particular point had not been sufficiently discredited.

It is interesting to note that when both prosecution witnesses were being cross examined on the issue of "thorough or persistent questioning" the impression or suggestion sought to be portrayed was that as a result of that conduct, the accused gave his statement. However, when the accused gave evidence, he stated that he did not say anything. In his examination in chief, the accused stated that he was asked questions by the police officers but he just remained silent. The police officers however continued to write and then he signed at the end.

In his re-examination he was asked by his Counsel as to what questions he was asked. There was however no mention of persistent or thorough questioning by the police officers. Instead he specifically stated that he was asked only about the alleged rape of the victim, but that he did not say anything. Two things can be noted from this response. First, it confirms the evidence of Angisia and Balaga that the accused was not persistently or thoroughly questioned, other than to explain to him what they were interviewing him about and other clarification questions. Secondly, it was never put to those two witness that throughout that period of persistent and thorough questioning the accused remained mute.

When all the above factors are taken into account the issue of persistent or thorough questioning hardly features in any significant way on the suggestion or allegation that the statement was a mere reconstruction. It should be borne in mind that the Defendant never alluded to the fact that he had been persistently or thoroughly grilled with questions, and that this conduct had impinged upon his mind and so sapped his free will until it was overborne; although it would seem that that may have been what his Counsel had sought to show.

(ii) The demeanour of the prosecution witnesses in seeking to deny everything whether fatal or not. With respect, I do not think that it is entirely correct that the prosecution witnesses denied almost everything. The denials made were justified in the context they were given and explained. Where it would appear to be trivial or unjustified, I am not satisfied that it significantly affected the credibility of those witnesses. To the contrary, the demeanour of the accused can be quite deceptive. He can actually portray and express himself quite well and clearly.

(iii) The pre-printed forms used. It was never suggested to Angisia and Balaga that what was pre-printed on page 1 of the statement was not explained or read out to the accused. On the contrary, both witnesses gave very clear evidence that the purpose of the interview was explained to the accused, before he was cautioned and then given opportunity whether he wanted to make a statement or not.

They also pointed out clearly that the accused not only understood the caution given, but was willing to give his statement freely, and that it was to be written on his behalf by the recording officer. They pointed out that the accused acknowledged that a caution had been given and that he understood it by attesting his signature below that caution. They testified too that the accused also expressed his willingness to give his statement and that it be written by the police on his behalf, by also attesting his signature below that note on page 1. There does not appear to have been any denial that a caution had been duly administered and or that it had not been understood. It is of significance that the accused did actually attest his signature beside those pre-printed statements. No satisfactory explanation has been produced other than the allegation that he had been assaulted prior to these, but that allegation of assault had been ruled against the accused.

It is significant too that the accused did not specifically mention whether he was cautioned or not in his examination in chief. All that he said was that he was given a chair to sit on and then asked about the rape of the victim. He did not clarify whether he had been cautioned prior to that or not.

I am satisfied on the evidence before me that he was cautioned by Angisia before his statement was obtained. While on this point, it is relevant to point out that the fact that a caution had been given prior to the statement being obtained and the suggestions of thorough questioning, is material to any suggestions of oppressive conduct. Prior to being thoroughly questioned, the accused would have and had been made aware of his rights to remain silent, and so even if he had been thoroughly questioned, that does not necessarily imply that that amounted to oppressive conduct. No other evidence had been adduced to show that that action of the two police officers amounted to oppressive conduct or oppression.

(iv) The personal knowledge of the two police officers about the alleged crime obtained prior to the interview is not necessarily proof that the statement written was a mere reconstruction by those police officers; that they were out to get the accused charged, tried and convicted. The police are often involved i' investigative work on crimes committed by offenders, and so it is inevitable, as part of their responsibilities that they would have some form of knowledge or understanding about what had happened. There is however a big difference between recording faithfully the statement of the accused coming from his own mouth, as opposed to the recording officer, writing down what he knew and then getting the accused to sign it. The latter is highly improbable because it would be totally contrary to the duties of a policeman. In that regard, cogent evidence must be produced, which satisfactorily raises a reasonable doubt in the mind of the Court that the statement did not come from the accused.

The accused did say though that the recording officer asked him questions and then wrote on his paper, although he had not said anything. He was then asked to sign, which he did, at the end of the statement, and by force, he added.

Having heard, observed and assessed the evidence of the prosecution witnesses as against that of the Defendant, I am not convinced that it had been shown to my satisfaction that the statement was the work of the interviewing officers, written up from information already acquired, prior to the interview

It is also significant to note that at the last page of the statement (page 5), last paragraph, there is a statement signed by the accused acknowledging that what had been written in that statement, was true and that it had been read back to him. No satisfactory explanation had been provided for this glaring discrepancy, other than that it had been obtained by force. However, there is no clear evidence of what force was alleged other than that he had been earlier assaulted prior to the interview and that its effect continued throughout to affect his mind to the end. That assault however had been ruled against and so leaves the allegation of any other force unsubstantiated.

(v) It has been suggested that a visit to the scene of the crime by the Assistant Commissioner of Police earlier that day should be viewed negatively against the interviewing officers as boosting or stirring up their desire adversely to get a statement, come what may, in order to impress their "boss" Angisia however explained fully to the Court that it was normal for the Assistant Commissioner of Police to attend the scene of a serious crime and to be kept informed of what was happening. Both prosecution witnesses denied any suggestions put to them that they were so bent on getting a statement from the accused to impress their "boss" that they went as far as bending the rules to have a statement written up. No evidence has been adduced as to what benefits, promotions or awards both officers stand to receive by producing a "false statement" to impress their boss. I think with respect, the suggestion is a bit far-fetched. I find it highly unlikely that a police officer would bend so low, merely to impress his superiors, by making a totally false statement, and then lie through his teeth on oath before this Court and commit perjury. If there are such officers then they would not last long in the force, because sooner or later their lies will find them out, but more seriously they would be "marked" men for such conduct. I am not satisfied that this point adds any support to the allegations of the accused.

(vi) Finally, the use of certain words in the statement. One of the words referred to was the use of the words 0100 hours or 0230 hrs to describe the time. It was sought to be suggested to the prosecution witnesses that the use of the above words came from the police and not the accused. Unfortunately, under cross-examination this witnessed admitted that he was aware of the use of such words to tell the time, and that he also does use it.

Defence Counsel also referred to the use of other words like "sexual intercourse, vagina, penis and wallet" and argued that with the limited educational background of the accused, it was highly unlikely that he would have had the necessary vocabulary knowledge to use those words in his statement to describe what had occurred. Both prosecution witnesses however remained firm and unshaken that those were the very words used by the accused. On the use of the word "wallet" Angisia explained that the accused used the word "purse" at first, so he asked him to clarify what he meant, and he then used the term "wallet" to describe what he meant.

On the use of the words "sexual intercourse, vagina and penis" I do not think those are strange words to the likes of the accused. There are many ways, even talking with his friends, in which the accused would have in one way or another become familiar with those words. At least as far back as 1989, the accused had been living in Honiara. It is therefore not the case of someone totally ignorant of the use of such words. On the other hand, I do note that the submission of defence Counsel may not be totally baseless, bearing in mind that the pidgin language does have similarities like "fucke, kan and koko" However, it is quite notable that the accused was a man who could express himself quite well even with his limited educational knowledge. It is clear that he could understand the use of English reasonably well because when the learned Director of Public Prosecutions was cross examining him using English, he was able to answer all his questions without hesitation, and in fact using a good mixture of English and pidgin words to express himself.

I accept the clear evidence of prosecution witnesses that the accused did use those words and although it had sought to be suggested that he did not have the educational background and vocabulary knowledge to use them, it has not been shown to my satisfaction so that there is a reasonable doubt, that those words used did not come from the accused.

(vi)(b) The insertion of the paragraph on the "waving hat made of wool".

This paragraph was included as the last paragraph in that statement and defence Counsel submits that there is no logical explanation save that it had been put there by the interviewing officers to further tie in the accused. It was suggested to the police officers that they had acquired that knowledge from another witness who had indicated to them that he had seen someone with a woollen hat around that place that night. The learned Director of Public Prosecutions however pointed out in his objections to the use of that information, by pointing out that the statement obtained from such a witness, (who he'd not been called as he had gone overseas) was on the 24th of August, 1995; much later than the time of interview of the accused. The police witnesses therefore could not have been aware of such knowledge. I think that is relevant here, but even if the police officers did have knowledge of such a hat, it has not been shown that the description was not from the accused. As I had indicated, the interviewing officers were firm and clear that the description given was from the lips of this accused.

Taking all the above factors into account, it has not been shown by defence so that there is a reasonable doubt in my mind that the above matters raised sufficiently amounted to oppressive behaviour or conduct, and that the statement had been sufficiently tainted so that it would not be fair to admit it as evidence or that the court should exercise its discretion to exclude it. Prosecution have proven beyond reasonable doubt that the statement was voluntary, made with the free will of the accused, and that it was the accused's statement, not a reconstruction or concoction of the interviewing officers. I rule that the caution statement be admitted.

A.R. PALMER,
JUDGE