R v Cawa [2005] SBHC 9; HCSI-CRC 320 of 2004 (31 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 320 of 2004

R

-v-

RONNY CAWA, OWEN ISA AND JOSES KEJOA

(Naqiolevu, J)

Hearing: 2nd August 2005
Ruling: 31st August 2005

Mr. S Cooper and Mr. Paul Bannister for the Crown
Ms. L Kershaw for the Second Accused.
Mr. Heath Barclay for the Third Accused

RULING

1. The second and third accused seek the exclusion of their respective caution interview conducted on the 25th September 2003 at Kolina on the Weathercoast and Central Police Station Honiara, on the grounds that the manner in which they were obtained was involuntary and unfair.

The applicants further ask the court to consider If it decides to include the statement, to exclude them as being unfair to the accused or in the interest of public policy.

2. The issue for the court’s consideration are –

(1) Whether the Statement tape recorded on the 25th of Sept 2003 of the third accused Joses Kejoa voluntary made and fair without threat or intimidation by the interviewing officers;

(2) Whether the interview conducted and tape recorded by police officers on the second accused Owen Isa on the 25th September 2005 voluntary made and fair without threat or intimidation by the police officers.

3. Joses Kejoa

The interview with Kejoa was conducted at Kolina Beach on the weathercoast after which he was transported to Central Police Station in Honiara for the second interview.

The officer in attendance at the interview are Sergeant Spooner and Abraham. The interview we conduced in both pidgin and English and was recorded. The accused had admitted certain things in the interview which implicate him in the shooting of Brother Ini Paratabatu on the Weathercoast on the 25th of April 2003.

The accused now claim that the interview was not voluntary and ask the court to exclude them from the evidence at the trial.

The Crown called 3 witnesses in the voire dire.

4. Record of Interview – Kolina

Counsel for the accused in his submission contends that the police acted in-appropriately familiar with the accused that had the impression that he must talk with them. The sharing of a lollipop to the accused prior to the interview and the absence of an interpreter clearly indicate the interview was involuntary. The accused was induced to speak to the interviewing officers and admit to the death of Brother Ini Paratabatu.

5. Interview – Central Police Station

Counsel for the accused submit at the beginning of the interview the accused is told on a number of occasion he must answer these questions and the means in which it was relayed to him had the impressions he must answer all questions. The accused, counsel mentioned had difficulty understanding the caution and only recited what was told to him, there must be doubt that he understood the caution.

The accused was denied his fundamental rights to a lawyer even though he was asked if he wanted one and this was mere lip service by the police officer. The court must therefore exclude the record of interview because it was not voluntary or in the exercise of its discretion it must exclude it in fairness to the accused.

6. Police Officers Evidence

Superintendent Stafford in his evidence made it quite clear that at the commencement of the process the GLF and its members, who started the process of the investigation. It was the assistance offered by GLF wherein PPF responded. There was no pressure for the accused to tell his story. This was done on his own free will. Superintendent Stafford in his evidence said that the interview was conducted some 200 metres away from where the army was located and from the police, and if an area titled the neutral zone. Superintendent Stafford throughout his evidence and under-cross examination maintained that at all times prior to and during the interview process the approach was geared towards establishing a rapport with the villagers and respect was shown to persons surrendering, and whether the accused talk was up to him.

7. Owen Isa – Kolina

The accused after the initial meeting prior to the 18th of Sept where the process was explained and the interview on the 25th of Sept at Kolina and at CPS in Honiara. The officer in attendance was Inspt Green and Folau. Counsel for the accused seek the order of the court to exclude the interview on the basis on non-voluntariness. Ms. Kershaw submit that reliance is placed on the evidence of Det Darren Folau, Sergeant Paul Green, Superintendent Stafford and Agent Booey as well as contents of the record of interview.

Ms. Kershaw submit that the court could not be satisfied beyond reasonable doubt that the Statement given by the accused on the 25th of September 2003 was made voluntarily. Ms. Kershaw mentioned that whilst it is clear that the accused volunteered the a statement to the investigators, the issue is whether he exercised it with a free choice to speak or remain silent.

Ms. Kershaw in further support of her application submit that no adequate caution was given prior to the interview at Kolina and the words offered by the police officer had the effect of encouraging him to speak without being fully appraised of his right to remain silent.

Ms. Kershaw submit that the interview at Kolina in which Det. Folau explained the caution to the accused was inadequate as it connect on their plane meaning be considered an adequate caution. The manner in which it was explained to the accused could have the effect of an inducement for him to talk.

8. CPS – Honiara.

Counsel for the accused whilst recognizing that a more fulsome caution was administered at CPS on the afternoon of the 25th September 2003. The second interview cannot be admitted as its making was clearly dependent on the first statement. It is tainted by the first statement given to police constable also be excluded.

9. Police Officer Evidence

Inspector Green initially cautioned the accused at Kolina on the morning of the 25th of Sept 2003. In his evidence Green said he prior to the commencement of the interview cautioned the accused at about 8:51 am. He had taken the time down in his note and he would have cautioned him in both pidgin and English.

The interview began 8:38am and the accused was appropriately cautioned. At the commencement of the interview he was told what he was being questioned about and clearly understood this.

10. CPS – Honiara

The interview at CPS was preceded with a meal and prior to the interview taking place he was offered a lawyer to be present. Inspector Green in his evidence said he had made a note in his note book. The accused declined the offer and said he was happy to undertake the interview without a lawyer. The interview then commenced.

11. Judge Rules
    

The Judges Rules is a body of rules that guide police officers when interviewing accused persons while the rules are not law they may be enforceable by the courts and may exclude from the evidence against the accused any confession obtained by the police. It is

“A statement by an accused person admissible only if that statement was voluntary in that it was not obtained from the accused person as a result of fear or prejudice or hope of advantage Kabui J, the Queen-v-Harold Keke & other Civil Case No. 254 of 2004.”

The rules are of practice for the police. This was stated in Ben Tolofa –v-LRC Unreported Criminal Appeal No. 2 of 1993.

“A breach of the old Judges Rules of the New Solomon Islands Judges Rule does not automatically mean that a statement must be excluded; the Rule were and are rules of guidance, not of law to assist the court in deciding upon the matter of fairness in the circumstances.”

12. Constitutional Provision

Provision to secure protection of the law.

Section 10 of the constitution provides for the protection of accused persons charged with a criminal offence.

10 (1) If any person is charged with a criminal offence, the, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent court established by law.

(2) Every person who is charged with a criminal offence –

(a) shall be presumed innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself before the court in person, or at his own expense, by a legal representative of his own choice.

13. Voluntariness

A court may admit a caution statement if it is satisfied that the prosecution has proven beyond reasonable doubt that the statement was made voluntary. It is made out of the accused’s free will and not as a consequence of a fear or prejudice, hope of advantage or oppression.

In McDermott-v-R (1948) 76 CLR Dixon J made the following observation.

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of free choice. If he spoke because he is overborne his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importantly, or sustained or undue insistence or pressure, it cannot be voluntary.”

14. Unfairness

The discretion to be exercised by the court to exclude evidence on the ground that it would be unfair to the accused was described in the recent case of R-v-Bina VICTA CRC NO. 178 OF 2004 Brown J.

“Exercise of the fairness discretion however calls for consideration of all the surrounding circumstance heading up to the time of the record. I agree with Ms. Kershaw submission relying on comments of Sachs J in R-v-Phiestly (1967) 51 where he said.

“This word oppression imports something that tends to sap and has sapped the free will before it is voluntary. Whether or not there is oppression in the individual cases depends upon many elements, they include such things as the length of the time intervening between periods of questioning, whether the accused person has been given proper refreshment or not and the characteristics of the person who makes the statement. What my be oppressive as regards a child, an invalid old man, or somebody in experienced in the needs of the world may turn out not to be oppressor when one finds that an accused person is a tough character and an experienced man of the world.”

15. Conclusion

The discretion to be exercised by the court in considering whether to admit evidence that is not made voluntary must be carefully considered. This must be considered in light of the nature of the questioning, the length of the questioning whether there was depravation of food, the length of and nature of the accused detention and use of violence and intimidation by police.

In the exercise of this discretion the court must consider whether any inducement has been held out to the accused by a person in authority to say something that may have otherwise been said. This may be in the form of a threat to lay further charges if the accused does not confess, the threat of arresting another person close to the accused, a promise to release the accused to bail or some threat of violence.

Clearly none of the above consideration has been advanced by either accused in this voir dire, to enable the court to properly exercise the discretion whether to exclude the record of interview.

The interview in which the alleged confession was obtained was conducted after several meetings leading generally to the 18th of September meeting and the 25th of September interviewing at Kolina and CPS in Honiara. The evidence of Superintendent Stafford was that these meetings was initiated by the membership of the GLF who wanted to tell their story. On this premise PPF officials travelled to the Weathercoast to explain the process and what will be the consequence. The membership of the GLF generally and the second and third accused in particular were present on the 18th of September meeting when the process was explained. At the subsequent interview on that 25th of September at Kolina and CPS in Honiara, interviewing officers explained the purpose of the interview and cautioned the accused in the English language which was then interpreted in pidgin by Det Folau and Officer Telio. Det Folau has an understanding of pidgin not only through personal experience but working in the S.I. I accept the evidence of Folau and Green and the testimony of Sgt Spooner and Abrahams and indeed of Superintendent Stafford and that all efforts were made to ensure the accused clearly understood the process and they were given all the respect and assistance. In relation to their constitutional rights every effort was made to ensure the process was conducted in compliance with the provisions of the constitution. It must be recognized that the situation prevailing at the time was unusual and the conduct of the PPF Officers were a demonstration of professionalism and experience.

The court having carefully considered the application by both counsel for the defence to exclude the record of interview of the second and third accused in these proceedings as being involuntarily made and unfair. And having further considered both oral and written submission in support and the authorities cited. And in particular whether in relation to the third accused the court should exercise the discretion to exclude the record of interview as a matter of public policy or whether the probative value of the evidence being weighed against the prejudicial effect it may have.

The court having further carefully considered the oral and written submission by both Counsel for the Crown and the authorities cited in support of the submission find the crown has proven its case beyond reasonable doubt and make the following orders :

ORDER

1. the record of interview conducted by the police at Kolina on the morning of the 25th of September and the afternoon of the 25th September 2003 at the Central Police station, Honiara with JOSES KEJOA was voluntary and in the exercise of my discretion consider it will not be unfair to the accused to admit the record of interview into evidence in this trial.
   
2. the record of interview conducted by the police at Kolina on the morning of the 25th of September and the afternoon of the 25th September 2003 at the Central Police station, Honiara with OWEN ISA was voluntary and in the exercise of my discretion consider it will not be unfair to the accused to admit the record of interview into evidence in this trial.
   

THE COURT