Regina v Mahoro - Ruling [2003] SBHC 104; HC-CRC 068 of 1999 (30 May 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 68 of 1999

REGINA

–v-

LUKE SAPE MAHORO

High Court of Solomon Islands
(Muria, CJ)
At Munda

Date of Hearing: 26, 27, 28, 29 and 30 May 2003
Date of Ruling: 30 May 2003

RB Talasasa for the Prosecutions
D. Tigulu for the Accused

Muria CJ: In the course of this trial, the accused, Luke Mahoro, through his Counsel raised a challenge as to the admissibility of the Records of Interviews (“ROI”) in which the accused admitted his part in killing the deceased by drowning them in the sea. The ROI concerned were the ones conducted in Munda on 15^th May 1998 and in Gizo on 23^rd July 1998. The main contention of the defence is that the admission was obtained from the accused through undue influence and false promises exerted on him by one John Warren Matapaza, the interviewing officer, before and during the interview at CID office, Munda. Before I proceed to deal with the objection to the admissibility of the ROI, I feel it would be helpful to take note of the background leading up to these interviews.

Brief background

The accused, Luke Sape Mahoro, has been charged with two counts of murder, contrary to section 200 of the Penal Code. It was alleged that on 2 May 1998, in the sea off Varie Island, in Roviana Lagoon, Western Province, he murdered one May Podeke. It was further alleged that he, on the same date and at the same location, also murdered another Everlyn Hina. The accused pleaded Not Guilty to both counts. The factual circumstances that gave rise to these charges are as follows:

On Friday 1^st May 1998, the deceased, May Podeke and her one and half year old grand daughter, Everlyn Hina (also deceased), set out from Kozou Village in their own canoe, but in the company of Rina Bangara and others, to Volani Village, on Volani Island, to attend a birthday party. On the way they stopped and spent the night at Balalae Village, on Malangari Island, since it was about 7.30 pm and it was already getting dark. Early the next morning of Saturday 2^nd May 1998, at about 5.30 am, both deceased left for Volani Village. The accused also left that morning for Volani, setting out from Baraulu Village. May Podeke (deceased) and her grand-daughter, Everlyn Hina (deceased), never made it to Volani, for they were found dead and their bodies floating at sea near Varie Island, in the Roviana Lagoon. The accused was the first person to see the body of May Podeke (deceased) floating at sea.

The arrest and interview

Following report of the incident to the police, a nursing officer, accompanied by a team of police investigators travelled to Volani, on the same day, Saturday 2 May 1998 to examine the bodies of the deceased. Having collected information from the people, the police returned on 12^th May 1998 to Baraulu for further investigation. The next day, 13^th May, the accused was arrested and brought to Munda Police Station. At first the accused was not placed in the cell at the police station due to threats on his life from the relatives of the deceased. The police therefore had to keep the accused with them in the police quarters for his safety at night and only kept him in the cell during the day.

The police returned to Baraulu on 14^th May 1998 for further investigation, and following that further investigation, the accused was interviewed under caution on the next day, 15^th May 1998, at about 12:15 pm in the CID office at Munda Police Station. Present at that interview were, Police Constable (now Sergeant) John Warren Matapaza (interviewing officer), Police Constable Alfred Kadi (witnessing officer) and Luke Sape Mahoro (accused). The interview was conducted following explanation of the nature and purpose of the interview, and administering the usual caution, including the right to remain silent, to the accused. The interview was conducted in Pidgin.

In the course of the interview, the accused gave his story of what happened that day, 2^nd May 1998. He recounted his trips by canoe that day to Volani Island, and how he met the deceased at sea, near Varie Island. The accused recalled how the deceased, May Podeke, shouted to him asking for tobacco, to which he did not reply. He related, during the interview, how he alighted from his canoe and went to the deceased’s canoe. The water at the place was shallow. He described how, upon coming to the deceased’s canoe, he dragged May Podeke (deceased) out from her canoe and pushed her into the sea, pressing her under water until she died, holding her grand-daughter tightly closed to her. Both May and her grand-daughter died. After having done so, and after realizing what he had done, he came back to his senses and cried. He then left for Volani where he told the people that he found a canoe floating with nobody in it, which might belong to somebody going to the market. Later that morning, after his return from Baraulu to get tobacco, the accused picked the body of May Podeke (deceased) and took it to Volani. The body of Everlyn Hina (deceased) was found and picked up by others.

In his second interviews conducted at Gizo CID office, on 23^rd July 1998, in the presence of Police Constable (now Sergeant) Vincent Eria (interviewing officer) and Sgt Patteson Fomani (witnessing officer), the accused explained in details his movements on that day of 2^nd May 1998. The explanations were recorded in the ROI as well as in a sketch map, a copy of which was reproduced by D/Sgt Eria (the original having been misplaced and could not be located).

The objection to the admissibility of the ROI

The principal ground for the objection to the admissibility of the ROI, as argued by Mr. Tigulu, is that the admission by the accused as contained in the ROI was obtained from him through influence or inducement in the hope of an advantage held out by the police officer concerned, John Warren Matapaza, a person in position of authority. The allegation of impropriety on the part of the police is that: he directed the accused to admit killing the deceased and to shift the blame onto one Dick Mehu Sonoma who originally was a co-accused in this case; in doing so, said the accused, Matapaza would help him ‘get out of trouble.’ Thus the story given to the police in the ROI was false and it was given as directed by Matapaza in the hope that the accused would be saved from this trouble. With regard to the Gizo ROI, Mr. Tigulu argued that since that interview was the follow up of the Munda interview, it should also follow the same fate of that interview.

The Law

The law on the admissibility of a confession made by the accused in a criminal case has been well established. Both in this jurisdiction and elsewhere, the authorities have made it clear that an admission or confession made by the accused is not admissible unless it is shown to be voluntary. This means that the accused made the admission or confession in the exercise of a free choice to speak or remain silent. If the accused speaks because of threat, force, inducement or promise of an advantage held out by the person in authority, then the confession or admission cannot be said to be voluntary, and must be excluded. An admission or confession cannot be presumed to be voluntary. The prosecution must establish it beyond reasonable doubt. This common law position has been consistently recognized by the courts in this jurisdiction, and one that is applicable to the circumstances of this country.

In addition to the objection on the voluntariness of an admission or confession, challenge as to the admissibility of the admission or confession may also be made on the ground that it would be unfair to use it against the accused. See the unreported case of R v Ben Tofola.^[1] The onus is on the prosecution to establish fairness to the required standard in criminal cases. However, the accused who raises the objection on the ground of unfairness must point to some evidence or material before the court that will satisfy the court that admitting the confession or admission would be unfair to him.

Application of the law to the facts of the case

The evidence of Sgt Matapaza is that following the accused’s arrest and taken to Munda, the accused was placed in protective custody in view of the imminent threats to his life from the relatives of the deceased, if left in the cell at Munda Police Station. The accused had to be kept at the police quarters where he would be closely guarded. In so far as the police were concerned, no pressure, or threats or intimidation or inducement was ever exerted on the accused by the police while he was in their custody. The evidence of P.C. Kadi is consistent with Sgt Matapaza’s evidence. So, too, is the evidence of Sgt Fomani. The accused’s evidence in the main, also demonstrates that the police properly looked after him while in custody. In fact his evidence in cross-examination confirmed that to be the case. He had no cause to complain about the way he was treated. The fear or oppression or some other trauma that some accused complained of while in police custody was simply not present in this accused’s case.

P.C. Kadi who is a relative of the accused was with him all along. At no time did the accused raise any complaint about the behaviour of Sgt Matapaza or any of the police officers to P.C. Kadi. All through the years (now more than five years), no mentioned was ever made of the alleged conduct of Sgt Matapaza to anybody, including the solicitors who represented the accused in this case until last Monday 26^th May 2003. The court record shows that at the hearing before the Central Magistrates Court on 12 October 1998, the accused was represented by Ms Jean Gordon of the Public Solicitor’s Office. On 26 October 1998, Ms Jean Gordon again represented the accused in Central Magistrates Court. On 23 November 1998, Ms Jean Gordon again represented the accused in the Central Magistrates Court. At the Preliminary Inquiry (PI) on 4 December 1998 before the Central Magistrates Court, Ms Maelyn Samuel represented the accused. On 31 August 2000 the accused appeared before the High Court in Gizo, and although not legally represented, had consultation with Mr. Patrick Lavery who advised the Court that the accused sought adjournment to enable him to seek legal assistance. All these occasions presented the accused with opportunities to raise the alarm about Sgt Matapaza’s alleged improper conduct. The suggestion by Mr. Tigulu that the accused had no opportunity to raise the complaint about Sgt Matapaza’s conduct cannot be accepted. In fairness to Counsel he only had the opportunity to take instructions from the accused before the commencement of the trial this week, on Monday 26 May 2003. Nevertheless, Counsel would recall that throughout the hearing before the Central Magistrates Court involving this accused, he was the presiding Magistrate then. While failure to complain is not fatal to the issue of voluntariness, it is a factor that goes to the state of mind of the accused, and relevant in determining the weight to be given to the confession. In this case, the court is bound to take into account the failure to raise any complain against the conduct of Sgt Matapaza for more than five years.

The next consideration to be taken into account is the nature of the admission or confession itself. When one considers the detailed descriptions of the events on that day of 2^nd May 1998 as told by the accused, it begs the obvious question: how would Sgt Matapaza have come to know the detailed scenario of events that occurred that day so as to enable him to coach the accused into saying what was recorded in the interview? Mr. Tigulu sought to suggest that the information enabling Sgt Matapaza to do so could have come from those people who had been interviewed by the police during the investigation. Unfortunately, none of the witnesses interviewed by the police were present with the accused during his trips that fatal morning nor were any of them present at the place where the drowning incident occurred. It would not be possible for anyone who was not present at the time of the incident to so describe the trips and what took place on that fatal morning in the manner described by the accused during the interview under caution on 15 May 1998. Still unlikely that such a detailed story would emanate from a disinterested person such as Sgt Matapaza who was only carrying out his duty as a police officer. The story described to Sgt Matapaza and witnessed by P.C. Kadi during the interview on 15 May 1998 by the accused has the ring of truth and accuracy and can only come from someone who knew what had happened that day of 2 May 1998. No inducement by anyone who had no knowledge of the events of that day could accurately describe them as the accused did.

To foster the position just illustrated, the accused in details again described his routes on 2 May 1998 to Sgt Eria and Sgt Fomani on 23 July 1998 during an interview under caution at Gizo. Being shown a sketch map, the accused described on that map with accuracy his routes that morning and the places where he met and drowned the deceased and where he later picked the deceased body. The accused has no complain about the interview with Sgt Eria and Sgt Fomani. Again in his evidence in cross-examination, the accused confirmed that he was properly treated and that he was happy with the way he was interviewed.

On the question of unfairness, Counsel for the defence submitted that this was the accused’s first brush with the law, and had no prior experience with the police or criminal investigation. He was subjecting himself to a person in authority. Therefore, argued Counsel, when he was told to give the false story during the interview, he was acting under inducement in the hope of an advantage. As the confession is the only evidence that the prosecution can rely on, it would be unfair to use it against the accused in such a case. In order to determine whether it would be fair or not to use an admission or confession against the accused, regard must be had to the conduct of the police officer concerned, as well as all the circumstances of the case. Here, I am positively certain that the conduct of Sgt Matapaza before and during the interview has not been shown to be anything but proper. He had explained the purpose of the interview to the accused. He had cautioned the accused, explaining to him his rights, including his rights to remain silent, before the interview. This is in compliance with R v Nelson Keaviri & Ors,^[2] Crim Cas No. 20 of 1995. Again I find no improper conduct on the part of the police in this case to obtained admission or confession from the accused. Finally, the whole circumstances of the case point to one conclusion, that is, the conduct of the investigation and interview of the suspects were properly done. The admission or confession from the accused was made by him voluntarily, and in the exercise of his free choice. No element of unfairness could be detected in the conduct of the interview.

A point raised by Counsel for the defence regarding the non-availability of the original sketch map. Counsel suggested that the use of the reproduced copy ought not to be allowed. While the court can accept that the use of a copy or reproduced copy of a document, such as a sketch map (an exhibit), must be cautiously done, it can still be accepted after an explanation by the person who knew about it and saw the original before it went missing. Sgt Eria did that in this case. He not only knew and saw the original of the sketch map but he was the author of it. In any case, the details noted on the sketch map were also recorded in the ROI conducted at Gizo on 23 July 1998. Even if the original sketch map was missing, there is nothing to prevent the Court in this particular case from treating the reproduced copy as a tool to assist the Court in understanding better the relevant evidence as contained in the ROI.

The court has searched for any evidence to support the allegation that Sgt Matapaza induced the accused to give false story to the police (to Sgt Matapaza himself as interviewing officer) during the interview. This is a serious allegation against a police officer, who is also an officer of the Court. The Court does not take such an allegation lightly. That is why those who raise such an allegation must be prepared to substantiate it. To simply raise such a serious allegation without any basis speaks of the demeanour of the maker of such allegation. In the present case no shred of evidence could be found to justify the allegation of impropriety on the part of Sgt Matapaza.

There is simply no evidence to even suggest that the interviews conducted under caution at Munda and Gizo with the accused have any flaw in them. To the contrary, both interviews were conducted with great admiration as being done in accordance with law.

On the evidence before the Court, the only conclusion that can be made is that the ROI containing admission or confession from the accused on 15 May 1998 at the CID office at Munda and 23 July 1998 at CID office at Gizo were conducted in compliance with the law. They are therefore admissible, and are admitted as evidence against the accused in this trial.

(GJB Muria)
Chief Justice

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^[1] R v Ben Tofola (29 October 1993) Court of Appeal of Solomon Islands, Crim App No.2/1993
^[2] R v Nelson Keaviri & Ors (27 June 1997) unreported, High Court of Solomon Islands, Crim Cas No. 25
of 1995