Regina v Motui [1998] SBHC 89; HCSI-CRC 20 of 1997 (2 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 20 of 1997

REGINA

-v-

WARREN GODFREY MOTUI

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Criminal Case No 20 of 1997

Hearing: 29 May 1998
Ruling (Voire Dire): 2 June 1998

J. Faga for the Prosecution
M. Samuels (Mrs) for the Accused

PALMER J.: This is the voire dire ruling of this Court on the statement of the accused (“A”) obtained under caution on 30 January, 1997.

The main ground under which admissibility is challenged is involuntariness; that is, the statement had not been given freely and willingly by the accused. A number of grounds have been raised in support and therefore it is the duty of Prosecution to prove beyond reasonable doubt that the statement had been voluntarily given.

The alternative ground relied on is that in any event the court should exercise its discretion in excluding the statement on the grounds of unfairness.
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INVOLUNTARINESS.

What are the allegations in support of involuntariness? These are in essence two-fold; threats and oppressive conduct by the Police.

First, what was the threat(s) or promise alleged, made against him? There appear to be two matters alleged, although learned Counsel for the “A” only referred to the threat concerning the timber in her submissions on the voire dire.

The first threat or promise alleged consisted of the following words:

“This case is so serious and so you must say something and we will record your words.”

Defence alleges that this was said after the caution had been given and before the interview was began. The “A” alleges on oath that when he was cautioned whether he wished to remain silent or not, he opted to remain silent. The Officers however insisted that he say something because the case was so serious.

The first question to ask is whether this is capable of amounting to a threat or promise? If the answer is yes, then I must go on next to consider whether it was said or not, bearing in mind that it is denied by Prosecution witnesses.

The words used if true, in my respectful view would clearly amount to a threat. It could induce a fear of prejudice on the part of the “A”; that because the case for which he had been arrested and charged for was so serious, he was obliged to say something otherwise, it might prejudice or damage his case.

Prosecution however denied having used such words or similar words against the “A”. I have the words of three police officers who were all present during the interview and denied what the “A” alleges. There is no record in the statement of the “A” where it was recorded that he elected to remain silent or not to answer any of the questions asked. I also find it highly improbable and therefore not true, that having warned or cautioned the “A” about his rights to remain silent that immediately after that, the Officers would be requiring the “A” to say something, contrary to what they had just warned him. But even if it were true, that such a statement was made, the fact that he had just been cautioned prior to that statement (which is not denied) in my respectful view would have been more than sufficient to inform him of his rights. The “A” in his own evidence did not deny that he was not aware of his rights or that he did not understand what his rights were.

I accept the evidence of the Officers on this particular issue and reject the “A’s” allegation. I am satisfied beyond reasonable doubt no such threat was used against the “A”.

The “A” also mentioned that P.C. Pegoa and Napola told him that they were trying to help him. With respect, I find nothing to import any threat or promise in that.

The second allegation mentioned related to the alleged threat to use the timber which he had used on the deceased on him. The words used were how he would feel if the same timber was used on him. It is not clear however what the purpose of that alleged threat and the circumstances under which it was used. The “A’s” response under cross-examination when he was asked at what point of time the threat was given, was vague about it. I also note that during the interview, the timber alleged used by the “A” was not in the possession of the Police Officers at the said time. The probability therefore it was referred to by the Officers at the said time quite remote.

Again all three Officers present at the said interview, denied using any threats about the timber. I find no reason not to accept their evidence as against that of the “A”. I am satisfied beyond reasonable doubt no such threats were used against the “A” to elicit the statement given by him.

The second ground relied on under involuntariness was oppressive conduct by the Police which resulted in the will of the “A” crumbling or being overborne to the extent that he speaks when he otherwise would have remained silent.

These related to the fact that he had been kept in police custody for some eleven (11) hours before being taken to the Police Charge Office for interview at 19.30 hours; having three police officers present during his interview; and the fact that he had been so overwhelmed by the happenings of the previous night and so was still very uneasy, worried and frightened about what was happening to him, especially when it was also his first time to be taken into custody and brought before Police Officers.

The “A” states how he felt so out of place and the burden of what had happened so heavy on his mind, that he wasn’t concentrating on what was going on and what to say. In the circumstances, he just did what he was told by the Officers.

On the issue of being kept in custody, I fail to see how this would have affected his mind to the extent his will crumbles at the end of the day when the interview was conducted. Whether the interview was conducted at the beginning of the day or at the end would have made little difference. There is no allegation that the arrest was unlawful or the detention illegal. In actual fact, the more time he had in custody before the interview was made would have given him more time to think things through. At the time of the arrest, the “A” would have been informed of the reasons for the arrest and detention. There is no evidence to suggest that the “A” did not know what or why he was in custody for.

On the subject of three police officers being present during the interview, that is not unusual. Only one was doing the interview whilst the other two were merely sitting in as witnesses. I fail to see how this would have sapped the mind of this “A” in those circumstances. There is no suggestion that the “A” was intimidated by the presence of the police officers. To the contrary this should have given more comfort to this “A” that there were other persons in the room to check on what the other was doing and to avoid any improper and unlawful activity against him by anyone of them.

The third matter raised relates to the state of mind of this “A”; weighed down by the happenings of the previous night and the emotional feelings of remorse on hindsight. Whilst I accept that the “A” is bound to be feeling very sorry and worried about the whole affair, when the interview took place, I am not satisfied on the other hand, that his will was so sapped by it all to the extent it was no longer free. Under cross-examination by Mr. Faga, the “A” explained that he was feeling worried and sorry because he later realised that his actions were wrong. With respect such feelings would be natural in the circumstances but would not necessarily sap his free will to speak when given the opportunity. Whether he was feeling out of place and worried would make little difference to the fact that he was being asked to give a statement under caution. He was not under any threat of being beaten up if he did not give a statement; neither was any promise held out to him that he would be released soon if he gave a statement. There is no evidence to suggest that he had any expectations about giving his statement at the said time.

I am not satisfied a reasonable doubt has been raised in my mind which had not been dissipated by Prosecution. I rule the statement was voluntarily given.

UNFAIRNESS.

This brings me to deal with the alternative argument, that the statement should be excluded in any event on the grounds of unfairness. A number of matters have been raised in support of this ground. The first of these is that the caution is defective or incomplete on the ground that it did not warn the “A” that what he says may be used in evidence against him in court.

The evidence on this is quite clear. No such words were used. This in my respectful view is a material omission. It is important as standard police procedure that an “A” is not only informed about his rights to remain silent but also that if he should elect to give a statement that it would be taken down in writing and may be used in evidence against him. The rationale for such warning is that it makes the “A” aware of what may eventually happen to any statement that he might give and gives him the opportunity if he wants, to explain his involvement or part in the matter he had been arrested and charged for. One of the primary purposes of a statement obtained under caution is so that it may be used in evidence whether against the maker or in his favour. It is important therefore that the maker is aware of what may be done to his statement. It may be that had the “A” been aware that the statement may be used in evidence, may refuse or say something different, despite the fact that the statement may have been voluntarily given.

The second omission raised was that the “A” was not given the opportunity to certify that he had been cautioned. Again as standard procedure, the “A”, Interviewing Officer and Witnessing Officer(s) should sign below where the caution had been recorded to certify that it had been duly given as recorded and that the “A” did understand what it meant. In this case this was not done. I do accept though that the Interviewing and Witnessing Officers have given oral evidence to the effect that the caution was duly given and confirmed by the “A” in his oral evidence.

The third omission raised was that the “A” was not given the opportunity to make any changes to his statement. This has not been denied by the Police Officers, who acknowledged that it was an oversight on their part. This in my respectful view is another material omission in that it gives further opportunity to the “A” to confirm, after reading through what had been written or read out to him as correct and accurate and if not to say so. In this case this opportunity had not been given, despite the fact that the “A” had read through his statement. Normally, the maker of a statement would point out straight away what is not correct or should be changed, but sometimes that does not happen and so as a rule of thumb, opportunity should be given in any event.

The fourth omission raised which is linked to third was that the “A” was not given opportunity to agree to the contents of his statement before putting his signature on the statement. Again this has not been disputed. This is a material omission because until that is done, it is not clear if what was said had been recorded correctly. It dispels any possibility and allegations that might arise that the statement had been tampered with by the Police.

Finally, I repeat what I had said in earlier cases that the Police should now consider the use of audio tape equipment to assist in the taking of statements of accused persons.

When all the above omissions are taken into account, I find in the exercise of my discretion that the admission of this voluntary statement would be unfair to this “A”.

I rule therefore that this statement be excluded.

ALBERT R. PALMER
THE COURT.