Cawa v Regina [2006] SBHC 112; HCSI-CRC 309 of 2004 (20 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 309 of 2004

RONNIE CAWA

V.

THE QUEEN

Voir Dire: 18th, 19th and 20th September 2006

Ms. Steward for Applicant
Mr. McColm for DPP.

JLewis, Commissioner

VOIR DIRE

1. Ronnie Cawa and 6 other persons are jointly charged with serious crimes. Mr. Cawa has pleaded not guilty to two counts of Murder (Penal Code section 200) and one count of Arson (Penal Code section 319(a))

2. The prosecution case against the accused Cawa includes allegedly confessional material obtained during an interview conducted between Detective Inspector Folau, an officer of the New Zealand police, with Mr. Cawa on 13 August 2006. Australian Federal Agent Paul Green was present as a witness to the interview.

3. The interview took place on HMAS Manoora an Australian Navy Ship at Marasa Bay, Weathercoast (southern coast) Guadalcanal. Mr. Cawa was on board Manoora accompanying his uncle, Harold Keke at the request of Mr. Keke. Mr. Keke had been arrested and detained on a warrant for the offence of armed robbery. Mr. Cawa was not under arrest but later became so.

4. Through his counsel, Ms. Stewart, Mr. Cawa submits that the interview contains allegedly confessional material obtained by police in circumstances of impropriety – inadmissible, because it was "unfairly obtained" and that "to admit the interview into evidence would result in an unfair trial of the accused", (hereinafter ‘unfairness’).

APPLICATION FOR A VOIR DIRE EXAMINATION

5. The interview of the Applicant here ranges beyond the matters charged. Mr. Cawa was interviewed by Inspector Folau of the PPF about other allegations in the same interview. The other matters became charges which went to trial in Regina v Keke Cawa and Lela.

Following their convictions for offences not material here, Mr. Cawa and the others appealed.

6. On appeal, in Keke v Regina [2006] SBCA 1 Mr. Cawa challenged the admissibility of the record of the interview by Inspector Folau on the grounds of involuntariness and unfairness. The Court of Appeal dismissed the Appeal. Their Lordships said at page 12.5.

"The way in which this is done is to consider all the methods used, both usual and unusual, and then to apply the usual tests to determine their propriety and fairness. The learned judge in this case clearly did so. He found the statements were given voluntarily and exercised his discretion whether still to exclude them after a careful and correct analysis of the evidence and submissions of counsel."

7. In the present Application Mr. Cawa again applies to have the interview excluded, this time on the ground that the Court should exclude the interview concerning the Marasa case on the basis of ‘unfairness’. Involuntariness is not pursued here [T81.5].

8. The crucial matters which distinguish the present Application from the earlier trial Ruling and the Court of Appeal decision are twofold:

1. the ‘Crown facts’ in Keke are different from those of the present matter; and

2. it was necessary to consider the sworn evidence Mr. Cawa has given in this Application concerning the interview.

9. The principles which govern the decision to conduct a voir dire examination are set out in R v Sidney Williams (1976) 14 SASR 1 per Wells J at 3 and more recently in R v Victa Bina High Court of the Solomon Islands Brown J: R v Lars (1994) 73(CCA) a Crim R91 NSW 91. It is trite law that the Court may permit resort to a voir dire examination where there is an issue of admissibility arising as a consequence (in the present context) of ‘unfairness’.

10. In the present Application there has been some passing suggestion that the matters raised here may be issue estopped as a consequence of the decision in Regina v Keke Cawa and Lela (infra). It is well settled that issue estoppel does not apply in the criminal law – R v Storey [1978] HCA 39; (1940) 140 CLR 364. and Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251. An argument that the facts have already been decided (res judicata) may have stronger foundations – see Rogers v The Queen (supra), but it has not been pursued by the Respondent here.

11. In my opinion the applicant Mr. Cawa is entitled to revisit the admissibility of the confessional material on the unfairness issue in a fresh voir dire examination and to ask the Court to consider the issue of whether the evidence obtained in the interview ought to be excluded in the exercise of judicial discretion. I so rule. I proceed to consider the matter on that footing.

THE LEAD UP TO THE INTERVIEW OF RONNIE CAWA

12. In the Keke v The Queen (infra), the Court of Appeal referred to the prevailing tensions which had arisen in Guadalcanal at pages 5 and 6 of the judgment of the Court. Their Lordships said ...

"in the year 2003 the situation on the Weathercoast was extremely dangerous and unstable. During August of that year, a meeting was held at one of the villages between the Special Co-ordinator of the Intervention Mission, the Deputy Commissioner of Police and Keke, Cawa and other members of the GLF. In order to facilitate a surrender, it appears various assurances were given including that the members of the GLF would be safe and, if necessary, a police post would be established on the Weather coast to ensure the safety of the supporters of the GLF. They were also told that they would have the opportunity to speak to the police about any grievances or allegations they wished to mention. In addition, there was to be a gun amnesty and it appears assurances were given that no attempt would be made to link any crimes with the surrendered guns. Keke was persuaded to surrender in respect of a robbery in 1998 and he was allowed to be accompanied on board HMAS Manoora by others. Included in those was Cawa." Keke pages 5 and 6.

The foregoing passage aptly describes the circumstances prevailing in August 2003 which led, among other things, to the impugned interview.

THE EVIDENCE OF THE APPLICANT

13. The Applicant gave sworn evidence in support of his Application here. He says and I accept, that the understanding he had of the English language then (at the time of the interview) was inferior to his grasp of English now.

14. Findings concerning the credibility of witnesses is where possible best avoided in Applications of this nature. However in the present matter, findings concerning the credibility of Mr. Cawa are unavoidable. Cawa’s position here, is that he believed that whether he spoke with police or not he was at no risk of criminal charges being laid arising from events on the Weathercoast at Marasa.

15. Mr. Cawa must convince the Court that he probably was possessed of such a belief at the time of the interview. His evidence in cross examination is that [T136.2]

what I know we talked about at Mbiti was to bring peace – peace to the Weathercoast, and surrender all our arms and then they promised amnesty and everything would be over. That is my understanding and what I know about from the meeting at Mbiti.’

16. And later ... [T140 McColm]...’ did you think that at some time people might investigate some of the killings? A. [Cawa] ‘I will say nothing’.

17. Question 140 provided an opportunity for frankness. If Cawa held any belief about any consequences to him which may have followed from the Mbiti meeting on 8 August 2003, he declined an opportunity to say so.

18. Cawa was given a caution at question 22 in the interview. It was in the form provided for in the Judges Rules para 2. [T144]. His response to police was ‘yeah I understand’. He made no argument with Folau about where the interview was headed. When cross examined by Mr. McColm about his state of mind at the material time, Cawa’s response was [T146]

‘I said I understand because I believe in the peace process which – the peace process and the surrendering of guns and the amnesty and everything is over.’

THE LAW AFFECTING THE JUDICIAL DISCRETION TO EXCLUDE ON GROUNDS OF UNFAIRNESS

19. The law is well settled. There is a long line of cases decided by the High Court of the Solomon Islands and judgments of the English Courts and the High Court of Australia. Regina v Iro and others High Court of the Solomon Island 6 July 2004 per Goldsborough J, R v Victa Bina High Court of the Solomon Islands Brown J.

20. Dean J as he then was said in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1

‘The issue is, whether evidence of the alleged confessional statement which has been procured by unlawful or improper conduct in the part of the law enforcement officers should be "excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard the question is not whether the accused was treated unfairly; it is whether the reception of the evidence of the confession would be unfair to him (see R v Lee and cf McDermott v The King.)"

21. The Applicant carries the onus of proving on the balance of probabilities that the conduct of the interview and the circumstances in which it was conducted, will operate unfairly against him. R v Lee (infra), Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 at 565, McPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 518 – 520, Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 19.

22. The DPP called no evidence. Counsel both relied upon some parts of the transcript from the case R v Keke Lela and Cawa 25404 of 2005 (hereinafter Keke and others). I am invited to use those parts of the transcript to make a determination of the ‘unfairness’ issue here. The Applicant Ronnie Cawa also gave his own account of the circumstances of the interview Folau and Green had had with him and those events which had preceded the interview.

23. May I use the evidence from Regina v Keke and others (infra)? Each of the parties both ask me to derive what I may from it. They also ask me to use my impressions of the transcript of the tape recording of the interview which I had listened to as I was duty bound to do – Butera v DPP (1987)164 CLR 180 in order to determine what passed between Cawa and Folau in the challenged interview. I have therefore considered the evidence in my determination of the issues here. The joint application (both from the Crown and defence lawyers) for me to consider the transcripts from Regina v Keke (infra) in my opinion cures any problem which arises from time to time with material admitted from sources other than from the sworn evidence of witnesses called in any Application. But see Jones v Sutherland Shire Counsel )1979) 2 NSWLR 206 at 219 and the ‘doctrine of Waiver’ Shaw v The Queen [1952] HCA 18; 1952 85 CLR 365 at 381 and Stirland v The DPP 1944 2 all E.R. 13 at 18 and 19.

THE SUBMISSIONS OF COUNSEL

The arguments of Counsel for the Applicant –

24. The Applicant argues through Counsel, that in this case it is the cumulative effect of a numbers of factors operating in the aggregate which render the circumstances surrounding the interview, unfair. I consider now each of the complaints of the Applicant.

The Constitution Act section 5(2) –

25. First, that the interview was conducted in breach of the Constitution of the Solomon Islands section 5(2). Kabui J. has stated his opinion concerning the section 5(2) argument in Regina v Keke Cawa and Lela (infra). I concur with his Lordship’s view of the law.

The Judges Rules –

26. Second, that the questions asked of Cawa by police in the interview were in breach of the Judges Rules The argument placed before this Court is that, although Mr. Cawa was given the cautionary warning, the Applicant says that it was ‘ineffectual’ since Cawa believed (if one accepts his evidence) that "Court was a place to sort out problems" presumably as compared with the reality which is that it is a place where charges of criminal behaviour are determined.

27. I do not accept that Mr. Cawa was possessed of such a state of mind. He had been to school. He says in his evidence that he went to school. He says that he remained at school ‘to form four of High School’ [T92.3]. He was raised and lived in Guadalcanal until he left school at 18 years. He then joined the GLF. I do not accept that he held such a naïve belief of the role of Courts.

28. It is said of Cawa that he did not know that he was under any investigation for crimes. It is argued that he had been led into that state of mind by the speeches at meetings by RAMSI representatives who spoke of ‘amnesty’. Cawa said that the statements led him to believe that

"an amnesty was in operation that prevented him from being charged with any crimes pertaining to the GLF and incidents at the Weathercoast." – he was relying on "prior statements that spoke of peace, safety and the sorting out of problems by senior RAMSI officials on 8, 10 and 13 August 2003."

29. I do not accept his evidence. Cawa was, on his own say so, the ‘Supreme Operation Commander of the Guadalcanal Liberation Front’ – an Association which, in 2003, was in serious conflict with the Government of the day.

30. I consider it to be improbable that Cawa believed the half truth that Court was ‘a place to sort out problems’ and no more than that. If he knew of crimes (and he was apparently anxious not to have been charged with any criminal act or acts). I find that he knew that the Courts of the Solomon Islands inter alia, determine guilt or innocence in matters of alleged crime.

31. I reject the argument that in delivering the caution statement there was an insufficient compliance with the Judges Rules.

Grounds to exclude confessional evidence at common law.

Pre-interview discussions at Mbiti –

32. Mr. Cawa carries the burden of proof on the balance of probabilities in the Application.

33. Cawa is a man of some sophistry. So much is evident from the very interview which he asks the Court to exclude. He was warned in Pidjin by Inspector Folau that his statements about events at Marasa may be given in evidence in Court – in the Pidjin language. Notwithstanding the warning, which I consider Cawa probably well understood, Cawa was prepared to speak with police and proceeded to do so. I find that his preparedness to engage in the process arose not through confusion in his mind about what the offers from Mbiti were but from a genuine desire on his part to tell police about his involvement as Supreme Operations Commander in the GLF at Marasa at in August 2003 – among other things.

34. I am not persuaded on the balance of probabilities that Cawa was misled into believing that no charges would arise if he told police what had happened at Marasa.

35. The Applicant’s next submission relates to Folau and Green continuing to question him notwithstanding his not having legal advice.

Lawyer not present or available for advice

36. Ms. Stewart cited Schliebs v Singh (1981) PNGLR 364 in support of the proposition that the present case is one in which the Applicant ought to have been given access to legal advice and assistance. In Schliebs case, Miles J succinctly stated the law as it governed the circumstances of that case on appeal. There is no doubt that the factual circumstances in that case are different to the present. There was no ‘perfunctory mouthing of a formula’ at Cawa’s interview (Schliebs 4.5].

37. Here, real effort was made by police to assist Mr. Cawa to obtain legal advice and allow of his ‘right’ to legal advice. An attempt was made by police to contact a lawyer. No success was to be had. It appeared to me that the Applicant Cawa was asking for both legal advice and the opportunity to discuss his situation with his uncle Harold Keke. The latter opportunity was given. Contact was unable to be made with any legal adviser at that time. That fact was conveyed to Mr. Cawa.

He was given an opportunity to converse with Harold Keke and in spite of his failure to have legal advice about his right, did not dissent to the interview recommencing.

38. Attempts by police to secure a legal adviser for Mr. Cawa notwithstanding the location of the interview failed because no lawyer answered the call. There was a suggestion that legal advisers ought to have been brought by those police officers who traveled to Mbiti in case they were needed.

39. Police are not obliged to carry lawyers with them. Indeed there is no evidence that at the time HMAS Manoora set out for the Weathercoast Folau Green or any police had decided to question Cawa.

40. To have made provision for traveling lawyers is a counsel of perfection which is simply untenable. This was an investigation under the prevailing tension in the Weathercoast. No-one knew the likely outcome and the police were at the investigatory phase.

41. I do not accept that the absence of a lawyer in the context of events at Marasa at that time would contribute towards any unfairness operating against Cawa.

42. The investigation related to serious matters. Notwithstanding that fact, there is no statutory right to legal advice. The exigencies of the moment precluded the advice. I am not persuaded that this is a matter which standing alone or in conjunction with other shortcomings should cause the exclusion of the interview.

The health of the defendant at the time of the interview

43. There is no evidence which would suggest that the Applicant was seriously disabled by motion sickness at the time of the interview. The evidence about discomfort from sea-sickness appears at pages 102.9 in evidence in chief and later at 144.5 during the cross – examination of Cawa when he says he was also ‘feeling sea sick’ at the time of the caution in pidgin. Cawa does not say what effect that had on his capacity to understand or to commence or to further participate in the interview.

44. In any event Cawa did commence the interview and he appears to have answered freely and frankly the questions put to him. I think that there is no unfairness in this part of the circumstances leading to and prevailing during the interview.

What the defendant thought was the purpose of the interview.

45. The Applicant gave evidence before this court and now asserts that he thought that the interview as about telling his story to help the peace process and his people. He says of what he thought the gun amnesty was. He says that he believed that the amnesty meant that thee was an amnesty in respect to crimes that had been committed on the weather coast; and that the handing in of guns meant that everything was over. He believed he says that by talking he was not incriminating himself.

46. I am not persuaded by his evidence before me. He was cautioned and he was well aware in all probability, that the things he said to the police would be repeated in Court. I do not accept that the circumstances set out in this heading would operate against him unfairly singularly or coupled with the other matters complained of.

The absence of an independent native speaking interpreter.

47. This heading suggests that the interviewer did not speak ‘good pidgin’. It may be the case that the Pidgin was not first class but no complaint was made about the quality of Folau’s pidjin at the time. Indeed that defendant on one occasion said to Folau ‘speak in pidjin.’

48. It is true that no part of the interview was conducted in the Tolo language, principally because it was not requested of Folau and not seen to be a language which was needed. The Pidjin used by Folau appeared to be generally understood by Cawa and when he needed the question repeated, he asked Folau to repeat it.

Submissions of the DPP

49. Mr. McColm representing the DPP opposes this Application, principally, on the basis that thee are no aspects of the interview or the circumstances in which the interview of Cawa was carried out which operate unfairly against the Defendant.

CONCLUSION

There was neither a singular circumstance nor an aggregation of circumstances surrounding the subject interview in my opinion which would operate unfairly against Mr. Cawa. I decline to exercise my discretion to exclude the interview since there is no basis for so doing. The Application for an Order excluding the interview is refused.

ORDER: APPLICATION REFUSED.

J.W. LEWIS

Commissioner