Regina v Cawa [2006] SBHC 32; HCSI-CRC 315 of 2004 (27 July 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 315 of 2004

REGINA

–v-

RONNY CAWA, CARRADINE PITAKAKA,
GEDDLY ISA, OWEN ISA AND WILLIAM HENCE

Date of Hearing: 20th March 2006 to day 28 of Trial
Date of Ruling: 27th July 2006

For the Crown Mr. S. Cooper and Mr. P. Bannister
Ms. N. Stewart for the 1st Defendant
Ms. M. Swift for the 2nd Defendant
Ms. P. Fa'asau for the 3rd Defendant
Mr. Benn for the 4th Defendant
Mr. S. Lawrence for the 5th Defendant

RULING
on the voir dire in relation to William Hence and Geddily Isa’s claim to have particular statements to police excluded from the trial.

Brown J: The issue, whether a statement or record of subsequently accused persons, given the police are admissible, fall to be decided in a preliminary hearing known as the voir dire. Our Court of Appeal has recently considered that issue in the case of Harold Keke, Ronnie Cawa and Francis Lela v. Regina, (CA, 8,9 and 11 of 2005, unreported judgment given on the 25th of May this year).

The Court of Appeal also considered the effect of Section 5(2) of the Constitution as a material matter for consideration when a trial judge is faced with the decision whether or not to exclude answers voluntarily given by an accused as evidence in the trial. The Court dealt with the arguments on Appeal at page 6 and made a finding that on the material before it, the Court saw no reason to criticize the judges conclusions.

The Judges findings of fact on which the Court of Appeal directed its reasons were set out earlier in the judgment and the Court of Appeal said at 6, "In the case of Cawa the judge found he was under arrest at the point he was told of the interview and being interviewed. And he also accepted that the accused was a suspect for the murder of Father Geve. He accepted that the lack of explanation to the accused of the reason of his arrest and detention would appear to be unconstitutional in terms of Section 5(2)."

The Court of Appeal then, having quoted the trial judge, (that the trial judge in that case having found "lack of explanation to the accused") must be presumed to have accepted a breach of Section 5(2) yet did not accept the argument that such a breach in the circumstances was a sufficient factor to exclude the record of interview as evidence. The Court of Appeal upheld that. The Appeal Court accepted the trial judge had evidence on which firstly, to find the statements were given voluntarily and secondly, to accept them nevertheless in the exercise of the discretion which also encompassed that consideration of Section 5(2) of the Constitution. The Appeal Court referred to the accused’s right to a fair trial before going on to say, "Methods used both usual and unusual and then to apply the usual tests to determine their propriety and fairness" as material matters for the trial judge. I take it then that the Court of Appeal’s methods relate to and predicate "a fair trial" when the trial judges’ reasons for his refusal to exercise his discretion to allow relevant and voluntarily statements, were addressed. Discussion of methods relates to the methods of the investigating officers, for the warnings required by the Judges Rules are about police conduct. The natural extension of the phrase "police conduct" to include methods is envisaged when this Court realizes in other cases, impropriety of conduct has been found, notwithstanding a finding in those cases that proper warnings in terms of the Judges Rules had been afforded accused persons. It is this impropriety, in the opinion of the judge, which affords him his discretion. So, whatever the methods in the case of Ronny Cawa under appeal, the Court of Appeal accepted the trial judge’s findings that on the evidence before him the "methods" disclose no impropriety on the police part which were of such degree to warrant the exercise of the trial judge’s discretion to exclude. More importantly, the Court of Appeal did not distinguish the requirements of Section 5(2) from the case law discussed so that, I presume to say, Section 5(2) is but one matter for consideration when addressing impropriety and consequently the question of "fairness." Now, the degree of unfairness or impropriety should not become fixed by rigid application of any formula which purports to set out the steps to the Rubicon.

It is plain the Court of Appeal recognizes this by it’s general comments about "methods" without attempting to analysis the evidence argued by Ms Brown for Ronny Cawa as to the statements of "voluntariness", rather leaving the degree, appropriately in my view, with the trial judge. This approach accords with oversees authorities.

In R v. Lee ((1950) [1950] HCA 25; 82 CLR 133) this passage may be found at page 154.

"It is indeed we think a mistake to approach the matter by asking separate questions, first whether the police officer concerned has acted improperly and if he has then whether it would be unfair to reject the accused statement. It is better to ask whether, having regards to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found at least, in the two passages from the judgment of Justice Street in R v. Jeffries 1946 State Reports", which are quoted by Justice O’Brien in the present case. His Honour Justice Street said at 312. "It’s a question of degree in each case and it is for the presiding judge to determine in the light of all the circumstances whether the statements or admission of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

Clearly, I need to consider and go beyond the mere fact of a caution and take account of conditions or the sense or mood appertaining at and about the time of these statements, coupled with the physical environment in which these interviews were conducted. But I should say notwithstanding a finding perhaps that the mood or sense at the time was one of apprehension and even fear, it is clear the fear was not of harm from the RAMSI Officers. The question is still that of degree when I come to the exercise or otherwise of discretion whether in all fairness the statements or admissions should be admitted.

In PNG, the Supreme Court considered the similar Constitutional provisions of our Section 5(2) in that country; those provisions are found in Section 42(2) which states;-

"A person who is arrested or detained, (a) shall be informed promptly in a language that he understands of the reasons for his arrest or detention and of any charge against him; and (b) shall be permitted wherever practicable to communicate without delay and in private with a member of his family or a personal friend and with a lawyer of his choice (including the Public Solicitor if he’s entitle to legal aid); and (c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest of his rights under this subsection."

Our Section 5(2) is in same form as Section 42(2)(a), which I’ve read, but does not include (b) or (c). This, in my view, is a most material differentiation, a differentiation which has been addressed, it seems, by police methods here with a view perhaps to be fair, for invariably at some stage of the record process, a suspect or accused person seems to have been offered the services of a lawyer if he so desires. That opportunity is not part of any Judges Rules or other rule in Solomon Islands domestic legislation although police procedures have incorporated particular questions which accord with the practice adopted to offer the services of a lawyer. This is meritorious. Having made the offer, it’s incumbent on the police to follow the wishes of the accused so that it will be a factual issue on the question of fairness if the accused wishes with regard to access to a lawyer are in some degree not acceded to. And of course I am minded to adopt Sir Kenneth Street’s dicta, "it is a question of degree in each case and it is for the presiding judge to determine in the light of all the circumstances whether it would be unjust to allow the defendants own words to be used against him."

Chief Justice Mann on the similar of issues said in the case of Regina v Amo and Amana ((1963) Papua New Guinea Law Reports 22) at 32. "When one refers to the Judges Rules, the emphasis is on the conduct of the police. It seems to be clear that the discretion to reject a statement may arise from circumstances not attributable to any conscious action of the police but to factors such as tiredness and lack of capacity in the accused to do justice to himself. I think that it’s clear from some of the dicta that all the circumstance is to be looked at and from the explanation of Justice Dixon as he then was in McDermott and the King that the present practice is not to be regarded as depending for it’s origin on any legal operation of the Judges Rules."

So, there again is the acceptance of factors personal to the defendant when considering whether it would be unjust to allow his own words to be used against him. With all that in mind, it must be remembered however, that the Judges Rules do not have authority as law, neither statutory nor common law, for they are directions for the assistance of the police to guide police in demonstrating voluntariness. That proposition runs through the case law. In PNG Minogue J (as he then was) said,

"Although the Judges Rules do not form part of the law of the territory of Papua New Guinea, yet from what was said both in Smith and the Queen and McDemott’s case, they maybe taken into account by the trial judge in the exercise of his discretion whether or not to admit confessional evidence."

In the case of Mr. William Hence presently before me, Mr. Lawrence also relied on the dicta of Miles J (later Chief Justice Miles of the ACT Supreme Court) in Schliebs v. Singh (1981) PNGLR 364.

In PNG, there is a constitutional right to a lawyer where a suspect is arrested or detained while the similar constitutional provision in the Solomons affords a right to know why he has been arrested or detained.

I am satisfied Mr. William Hence was effectively detained when he stepped aboard the helicopter for the flight to Honiara on the 25th of September 2003. On the 18th of September he had spoken with Officer Stafford following which he returned to Kolina on the 25th with his travel bag expecting to be taken to Honiara. On the 18th of September, having heard Officer Stafford, I am satisfied Mr. William Hence was a person of interest to RAMSI Police and on the 25th of September Officer Scott spoke to him at the beach at Kolina where she recorded her conversation. I’m satisfied having heard the tapes of the conversation that Mr. William Hence’s understanding of the English language was reflected in his responses to the questions so that the use of English in the interview does not create a sense or mood of unfairness per se. The purpose of the interview if expressed may be found at question 54;-

"So, William, we want to talk today about all that, those things that were happening with Harold when you were in the GLF. Is that okay to talk about that today?" Answer, "Okay, it’s okay but with the questions, I have participated and I see with my own eyes I will tell..."

Later he admitted to killing one - Jonah Vasele, another member of the GLF although no caution was then administered. Mr. William Hence continued to speak of the involvement of others including Ronny Cawa and Harold Keke in shootings. Later he spoke of beating particular people and again a shooting of one John Beku. Later he spoke of a Marasa operation when three people died. No questions were asked about Brother Sado’s death, but it was clear from the tenor of the conversation, Officer Scott had just cause to suspect William Hence of involvement in particular killings on the Weathercoast once those admissions were made. He appears not to have been arrested at the Weathercoast but rather taken by helicopter to Honiara, detained and taken to the Central Police Station on the 25th when he saw his family as arranged.

The interview on the 26th. The day following his trip from the Weathercoast, Mr. William Hence was formally interviewed by Officer Scott again, this time commencing at 8:53am with Station Sergeant Paul Green and Sergeant James Toaki present. At question 68, 69, 70 and 71, an exchanged took place. This exchanged is in my view a clear attempt to elicit an understanding of the interviewee’s right to remain silent, a necessary inquiry in Papua New Guinea when approaching the question of propriety of police conduct.

Justice McDermott spoke of the need for inquiry in the State v. Kiki Hapea ((1985) PNGLR 6) where page 9 Justice McDermott said;-

"After almost 80 years of operation of one set of rules or another, one would hope that rules of this Court could now be formulated. The need to so do, is highlighted by the constitutional rights which overlay and are now applicable. The move in the United Kingdom towards the Code of Practice to be contained in subordinate legislation, see the Royal Commission on Criminal Procedure January 1981 and the development of relevant guidelines in the questioning of Aborigines in the Northern Territory, see Anunga Rules and R v. Anunga 1976 11 Australian Law Reports 412 particularly at 414 were Justice McDermott quoted the Anunga Rules at 3, "Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and so, "Do you understand that" or "Do you understand you do not have to answer questions?" Interrogating Police Officer having explained the caution in simple terms should asked the Aboriginals to tell them what is meant by the caution phrase by phrase and should not proceed with the interrogation until it’s clear that the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of this caution is a difficult one, but the presence of a prisoner’s friend or interpreter and adequate and simple questioning about the caution should go a long way towards solving it."

William Hence’ acknowledged the caution administered in pidgin required by the Judges Rules, (see p215 of the Grey Book); I’m satisfied on that material found in those questions and answers that I’ve earlier referred to, the interview was voluntarily given.

Mr. William Hence gave evidence before me on the voir dire and I was left to no doubt he was no fool. He appreciated the import of questions. Later at about page 22 of the transcript questioning about Brother Sado commenced. A warning preceded these questions. Again, I’m satisfied the answer were volunteered. Mr. Lawrence argued that the atmosphere created by the RAMSI officers attitude towards those on the Weathercoast, one of friendliness and respectfulness creating cooperation, which somehow runs counter to typical interviews in which suspected persons have – quoting Mr. Lawrence, "No doubt about their situation both because of accumulated cultural knowledge of the criminal justice process and because the surroundings obviously indicate their predicament." His choice of phraseology relates more to overseas than the Weathercoast of Guadalcanal where clearly there is little cultural knowledge of the criminal justice process, but my duty in terms of that process in the Solomon Islands is to be satisfied on the balance of probabilities that William Hence’s statements were voluntarily given. I am so satisfied.

Should I nevertheless reject them on the basis of unfairness?

Mr. Lawrence prefaces his remarks by saying that William Hence was clearly vulnerable. I have had regard to that argument but am not satisfied William Hence was vulnerable in the sense that his ability to make his own mind up whether to talk or remain silent was adversely affected by the changing circumstances at Kolina. It was clear a semblance of security was afforded those about Kolina by the presence of RAMSI police and soldiers. There had previously been a gun hand in, as evidence of that security designed to afford ex-members of the GLF protection from the "joint force" or others. Harold Keke was known to be safe in Honiara. His departure on the warship HMAS Manoora and his continued detention to the 18th of September, when William Hence spoke to Officer Stafford, was common knowledge. There was no coercion shown between the 18th of September and the 25th of September when William Hence voluntarily boarded the chopper to Honiara, and in terms of duress, intimidation, persistent importunity or sustained or undue insistence or pressure as discussed by Dixon J in McDermott’s case, that period of reflection between the 18th of September and the 25th of September, after which Mr. William Hence attended with his travel bag before his initial interview with Officer Scott allays any doubts William Hence may have entertained about his involvement in the process. He lived away from Kolina at Dui Dui, free of the RAMSI presence. The Court of Appeal expressed the need for a police application at least of "the usual tests" so that, on this voluntariness question, I take it to mean those tests propounded in the case law referred to especially Ibrahim. Mr. Weir also points to Justice Brennan’s dicta in Collins v. R (1980) 31 Australian Law Reports 257 at 305 to 311, where his Honour discussed the necessity to focus on the will of the accused and to ask whether in the specific circumstances of that particular accused, in this case Mr. William Hence, whether his will had been overcome.

As I say, the female officer’s behaviour at Kolina and in Honiara on the 26th of September, leading to the taking of the record, does not on an objective view suggest "duress, intimidation" et cetera, quite the contrary, so the suppositions and propositions put by Mr. Lawrence on Mr. William Hence’s part, had this or that happened, do not address the actuality of Mr. William Hence’s recorded response throughout, as events happened and having heard him both on the tape and in Court I am satisfied on balance that his clearly expressed understanding of his rights at the start of the interview reflected a real appreciation of warning and that his idea or concept of the purpose of the recording included sufficient resourcefulness to "play a straight bat" to some questions and "glance others away." He does not nor did present as an individual, susceptible to suggestion but rather one aware of his surroundings and his own place in the scheme. He does not present then, as a weak character.

On the wider question of fairness, it is illustrative of the duress issue perhaps to remember many of the PNG cases dealt with accused who were detained for long periods of time not just overnight or the next day before interviews were conducted. In Mr. William Hence’s case, he was upset by his reunion with his family understandably so after such a length of time separated and in all fairness it hardly avails the defence to argue that the delay was such that it may, in these extraordinary times, be seen as overbearing. If anything, it may again have offered the defendant, William Hence, another opportunity to reflect on his situation when faced with the specific warning given him at the commencement of the record of interview on the 26th.

(JB) Mr. Lawrence, argued strongly that the Court should not countenance the practice he says that happened here of detaining a suspect and delaying taking him before a Court, so that I should treat that as evidence of unfairness sufficient to warrant rejection of the record. Mr. William Hence was taken to Court on the 26th of September at 12.30pm immediately following the conclusion of the record. He had been effectively detained since the helicopter flight from Kolina the preceding day. Mr. Lawrence says that the Solomon Islands has a detailed Constitutional and legislative regime governing the obligation on authorities to bring detained persons before a Court as soon as reasonably possible and without undue delay. "In the event that detention exceeds 24 hours there is then an obligation, except in cases of murder or treason, to consider police bail under Section 23 of the Criminal Procedure Code. Detention for questioning is inconsistent with this regime." He referred me to Michael v. The Queen [1995] HCA 8; (1995) 184 CLR 117 and the joint judgment of Justices Brennan, Deane, Toohey and McHugh who in part said;-

"It is unlawful for a police officer to delay taking an arrested person before a Justice in order to question the person or to make further inquiries relating to the offence for which the person has been arrested or to some other offence." Justice Gordron’s dicta was of similar import. The defendant says, "he was detained from the morning of the 25th until admissions were made on the 26th. He could have charged and taken to Court on the 25th, the only reason he was not was because police wanted to question him. This was unlawful and but for the illegality the admissions would not have been made."

The evidence is that the chopper left the Weathercoast and arrived at Henderson about lunch time when the various Weathercoast people were brought to the Central Police Station. Officer Scott, intended to continue her interview with William Hence, as she said at the Weathercoast, but in evidence given by Officer Stafford, when asked if Mr. William Hence was in a cell, Officer Stafford stated he was "not sure for later we sat in a room at the back, we had found his relatives and he was allow to visit his relatives. His interview was suspended for that day at his request for he was upset." Officer Stafford, who was not the case officer, was asked had William Hence been arrested yet at the time of the relatives visit and later it was put to him that Hence was never formally arrested which he couldn’t answer. Officer Scott, the case officer, is unavailable to give evidence in this place on that defence allegation but Officer Green, a corroborating officer on the 26th of September, stated in cross-examination when asked about an arrest William Hence was arrested "before he was charged, the usual procedure." He was taken after he was charged to the Magistrates Court. Later the officer said "that’s correct" when it was put to him that the formal interview took place before William Hence was charged with the murder of Brother Sado. In fact Officer Green said he was concerned in the investigation into the deaths of six Melanesia Brothers on the Weathercoast, so the use of a helicopter, the resources of RAMSI personnel and the evidence of Chief Superintendent Booy and Officer Stafford, goes some way to explain the Court of Appeal’s use of phraseology in Harold Keke’s case that the times were unusual. But that doesn’t excuse a lessening of the usual tests to determine police propriety and the commensurate test of fairness to the accused.

Here Mr. William Hence says he doesn’t know the methods or procedures of the police so that his denial of the formal arrest must be weighed against the evidence of the events of these two days and the practice that emerged from the evidence of the Crown witnesses. I cannot, having heard the evidence, categorically exclude the fact of an arrest but equally clearly the defendant was charged following the second interview.

In the circumstances of the family reunion of the 25th, Officer Scott acted favourably towards the defendant by allowing further time before reinterviewing William Hence and no question of unfairness, in my view, arises because of this concession. Again, the initial interview was not directed specifically towards the circumstances surrounding the death of Brother Sado. It can hardly be said there was confessional material in that case sufficient to call for an immediate arrest in relation to Brother Sado’s death. There was of course confessional material about other apparent killings but the officer must make a value judgment in the light of that confessional material. If she was to act precipitously any arrest subsequently maybe found to be unlawful.

But that need not concern me suffice to say that the combination of the two records would have opened upon very serious criminal acts alleged to have been perpetrated by this defendant and as consequence he has been charged with the murder of Brother Sado. When I look dispassionately at all of these circumstances I’m not satisfied there’s been demonstrated unfairness to this defendant were the records of interview to be admitted into evidence on his trial.

I should said I do not think there is any real merit in the argument about lawyers, on hearing the tapes and transcripts, it’s plain, the practical difficulties were taken into account without overriding the defendant’s wishes in relation to the use of a lawyer especially in Court and the defendant understood his primary right to silence. In all the circumstances I cannot say I see such unfairness as to cause me pause when I look to Mr. William Hence’s free will exercise (in the selective manner he answered questions) and the large degree of understanding he evinced about the offered access to a lawyer.

Geddily Isa

Ms Fa’asau’s client, Mr. Geddily Isa was interviewed on the 2nd and 3rd of October 2003. Objection to admissibility of both interviews is taken again on the ground of voluntariness and in the event that I find they were volunteered, then on the ground of fairness for that circumstances existed which called for the exercise of my discretion to exclude. Ms Fa’asau cross-examined both Chief Superintendent Booy and Inspector Stafford at some length to show that the overriding purpose of the "peace process" so called was the telling of stories to Chronicle Kiri, the Secretary to Harold Keke, and with the resultant intelligence (if I may used that word) in the knowledge of RAMSI, the process was used or misused as a basis for criminal investigations. As a consequence her client was misled by the process and submitted to interview for that it was sanctioned by Chronicle Kiri, a person in authority over him. For as Harold Keke’s influence over former members of the GLF, including Geddily Isa, remained strong and Chronicle Kiri was his subordinate.

In his evidence the Chief Superintendent of Investigation, Darren John Booy, when speaking about the role of RAMSI on the Weathercoast said about his visit on the 18th, that it was about gathering evidence and asking members to tell stories in relation to involvement in crimes. It was to seek to identify witnesses and offenders who may be arrested, taken to Honiara and charged and placed before the Court. He said those charged would have a limited likelihood of bail but he would not be the judge. It’s not clear whether his address to former members of the GLF on the 18th was heard by Geddily Isa, but he was cross-examined about a pro forma interview document which became Exhibit 3, a document which he designed in consultation and which included the Judges Rules caution (reproduced from the Grey Book). The pro forma was clearly an attempt to ensure uniformity and fair process in the interview. I was impressed by his evidence and his experience and accept the pro forma was drawn in good faith with that procedural fairness in view.

He did speak to Geddily Isa, English was used and Officer Stafford was present. He recalled Isa responding to his questions so that implied some understanding I presume. This took place on the 18th of September. He had no further direct involvement or conversations with Geddily Isa after that.

Ms Faasau tendered correspondence between Chronicle Kiri and Harold Keke but its relevance, insofar as Geddily Isa is concerned, is slight for I have no evidence of any use to which these letters may have been put by Chronicle Kiri to influence Isa or how Isa viewed this correspondence if he knew of it.

Officer Stafford, it seems, gradually assumed operational control of the various meetings arranged about Kolina on the Weathercoast with GLF ex-members including Chronicle Kiri (after the surrender of Harold Keke) and Dyell Tati. His conversations were principally with these two earlier in the period from the 4th of September when he said he made clear to Chronicle Kiri that the police would investigate crimes committed on the Weathercoast and that the police would speak to people involved. Later on the 10th he again spoke to Chronicle Kiri and in his evidence he explained the specifics of the process which his operations termed the surrender process. None of this had any relevance to Geddily Isa who was not it’s seems, part of the select group who were discussing matters on the 10th.

Particular investigation officers were chosen for certain events. It was event based investigation and later in the discretion of the investigating officers persons of interest were followed up. Clearly the "stories" collected and the manner of their telling were but that and the basis for investigation work by the police. Stories were in effect hearsay.

Having heard both Chief Superintendent Booy and Inspector Stafford, I’m left in no doubt the phrase "peace process" did not only mean collecting stories but in terms of Officer Stafford’s recollection of his meeting on the 18th of September with people present. He went into quite some detail and I propose to include his explanation of the process from his evidence given in Court at pages 202, 203, 216,217 and 218, because it is important in my view to understand how Officer Stafford said he explained the process to those present at these various meetings.

Now, if I can take you to the substance of the meeting of the 18th of September 2003, how did that meeting start or commence?

The meeting started with a prayer before introductions were made by myself and Chief Superintendent Booy.

And how did it proceed from there, Mr. Stafford?

I then spoke in relation to what was happening with Harold Keke, Ronny Cawa, Samson Leketo, Pitakaka and I informed them as to their welfare and what had happened in Court. I then talked about the peace process and that it was our wish to the free movement of people in the Weathercoast and for a lasting peace. I then spoke about the investigation process and what RAMSI investigators were seeking to do in the Solomon Islands. I then spoke about what we required to do in relation to investigations on the Weathercoast. I advised them about the investigation process that I’d spoken to Chronicle about and I talked to them about possible offences that had occurred on the Weathercoast. I also told them that those people who became involved in the process would be treated with dignity and respect and they’d be kept safe in our custody until they were handed to other authorities. I also told them that I could offer them nothing more than that. The details of the process was that we would identify people we wished to speak to, that an investigation team would attend to the Weathercoast and speak to those people and that the conversations would be taped and that if offences were established and it was determined that the people we were speaking to were involved in criminal activity that they would then be transported to Honiara where they would be further interviewed and that they maybe taken before a Magistrate and be charged with offences, at which time if it was the Magistrate’s decision they’d be taken to Central Police Station or to Rove Prison where they were to await trial. I also told them that when the people were identified they’d be given a week to go home and see their relatives, if possible, and I asked them if they would return after that week to be involved in that process. If they were to be involved in the process then they would want to bring some small amount of clothing or other possessions with them so that they could have them in Honiara.

And can you tell his Lordship what happened once you got back to Honiara on the 25th of September?

My Lord, we arrived back at Henderson Airfield where I purchased some drinks for the four people. We then got in a bus and drove to Central Police Station where food and drinks were provided to the four people. Interviews were conducted, I think, with two of the accused by the investigators. Around that time I was approached by relatives of William Hence and he was given time in privacy to speak to his relatives.

And was William Hence interviewed in due course following the meeting with his relatives?

Mr Hence became upset after he’d spoken to his relatives. The investigators came to me and explained the situation and from memory the interview was conducted the next day.

And Mr. Stafford, did you yourself have an opportunity to speak directly with Geddily Isa?

Yes, I spoke to Geddily briefly.

And was that on the 2nd of October 2003?

Yes, it was.

And do you recall what you discussed with Mr. Isa on that occasion?

My Lord, after attending the neutral zone I then addressed the ex GLF members at the neutral zone as a whole. I spoke to them and told them about what had happened on the 25th about the process that had occurred and what had happened to the four people before. I told them that they were safe in custody in Rove Prison and that they had been charged. I then spoke generally before introducing the four people to the investigators. I myself was involved in an interview with Sergeant Emily Ferns.

So, I just want to be clear on the process. Your brief discussion with Geddily Isa on the 2nd October was when you explained the investigative process to him?

My conversation with Geddily Isa followed on from my general conversation with all who attended. It was to introduce him to the investigators so the investigators could then speak to him individually.

And as we heard yesterday, Geddily Isa’s name was or is in the register book, Exhibit 2?

Yes, it was.

As having attended at the meeting of the 18th of September 2003?

That’s correct, my Lord.

Specifically on the 2nd October, he spoke to Geddily Isa and I’ve quoted from that portion of his evidence. He said the "process" was explained to Geddily Isa. Again Geddily Isa was given time to reflect and see his family. Having heard Officer Stafford in lengthy cross-examination I’m impressed by the patient work about the Weathercoast to avoid further serious conflict this time with RAMSI forces. Harold Keke was in custody and by all accounts still of influence. That patient work was reflected in evidence of Darren Folau who spoke of negotiation rather than confrontation as the means to the end of the hostilities. But so far as any particular investigation into Geddily’s involvement or culpability for particular crimes arising from certain events was concerned, that responsibility rested with Officer O’Shae.

Ms Fa’asau assertion that "the process meant the GLF submit to the procedure without exercising much of their will because they were simply told to participate" is not supported by the evidence and the assertion that, "When Geddily Isa attended on the 2nd of October to give his "story" to the investigating officers, that the accused was simply submitting himself to a process he was told to go through by his leader at the time Chronicle Kiri, with was also indirectly influence by Harold Keke" really goes to Isa’s understanding.

He did not give evidence. The evidence that was given by the Crown has not been sufficiently identified so as to support the inference that Ms Faasau wants me to draw and consequently so far as the circumstances intrinsic to the investigations on the Weathercoast are concerned, I’m not prepared to accept Geddily Isa was coerced in the manner suggested or acted through fear or indirect influence, however envisaged.

Turning to the circumstances of the first interviewed itself, Officer Cushla O’Shae, a New Zealand Detective Sergeant of 13 years experience stated she had instructions to interview Geddily Isa about the Marasa matter amongst others and that Geddily Isa’s name was mentioned in connection with that. As a consequence on the 2nd of October she went to the Weathecoast, Kolina with a view to speaking with him. Constable Saxon Sai, a RSIP officer was with her for he was fluent in pidgin and able to assist where interpretation was necessary. I’ve heard the tape, Exhibit 13, and read the transcript, Exhibit 14, which corresponds with the tape. The purpose of the interview was plainly stated at page 3 of the transcript, investigation of "murders and other crimes."

At Page 2, the caution in terms of the Judges Rules was given in pidgin. Constable Sai administered the caution. The caution accords with the Rules. At the conclusion of the interview she spoke to Officer Stafford and expressed her intention to bring Geddily Isa back to Honiara. He was not arrested at that time but from the tenor of her evidence I’m again satisfied when Geddily board the chopper he was effectively detained. He was given an opportunity on his return to Honiara to speak to the Public Solicitor, Mr. Ken Averre. He was formally arrested and charged at about 6.00pm in relation to the Marasa investigation. Later, on the 3rd of October commencing at 11.10, he was again interviewed at the Iron Bottom Sound Hotel since it’s seems the Central Police Station facilities were taxed. Some seven tapes were played of the record of interview, Exhibit 15, on that day and the transcript, Exhibit 16, and the tapes were added into evidence on the voir dire.

Ms Faasau also criticised the apparent failure to give a caution in terms of the Judges Rules at the Iron Bottom Sound Hotel, on the taking of the further record. For there Officer O’Shae truncated or shortened the warning by referring to her wish to question him about incidents at Marasa then stating that the questions and answers would be recorded and may later be used in evidence before a Court. This followed his arrest and charge on the preceding afternoon. On page 3 however, a further caution by Constable Sai in terms of the pidgin and English caution prescribed by the Judges Rules was given. Constable Sai was asked by the interviewing officer whether the defendant, Geddily Isa, understood the caution and the defendant himself responded, "Yes." It followed Officer O’Shae’s statement that he would be questioned about two persons he was alleged to have murdered.

Frankly, I do not agree with Ms Faasau’s assertion that the warnings raised a doubt in the accused’s mind about his right to remain silent. The various interviews were voluntarily given and there is adequate record of the warnings included in the tapes and transcript. The various case authorities do turn on their particular facts but in this case the warnings were clearly recorded and were contemporaneous with the detention.

I make the same comments in relation to the absence of a lawyer at the Weathercoast. The defendant spoke to a lawyer on his return, transferred to the Central Police Station and at about 12 07pm on the second day Mr Ken Averre joined the interview at Iron Bottom Sound. The interview then continued with breaks to 3.23pm. There was no suggestion by Mr. Averre during the continued interview of unfairness or coercion for instance so that on balance I do not consider the defendant’s arguments now that reception of the record would be unfair since he had no real opportunity to the assistance of a lawyer can be sustained.

What these arguments of both defendants appear to seek to show is that by virtue of the subjectivity of the personal experiences of these two, they were unknowingly inculpating themselves. By her argument Ms Faasau seeks to show that her client, Geddily Isa’s sense of events did not correspond with that recounted by Chief Superintendent Booy, Officer Stafford or Officer Folau, but nevertheless his sense of events does not universally claim to be true for those others involved in the Kolina meetings and at Honiara for the defendants experiences as a simple villager were far and away removed from the perceptions of others foreign to his environment and familiar with criminal investigations but nevertheless his sense of events was no less real to him for his lived experiences unsuited him for the "process" so foreign that it would be unfair now of this Court not to recognise this disparity and acknowledge his subjectivity when viewing these events. Of course the argument about the peace process and its restricted meaning which was put to these police officers by Ms Faasau was rejected in cross-examination and in the absence of Gedddily Isa’s evidence; I am unable to determine the nature of his subjective belief in what he thought happened.

What is plain, however, from listening to William Hence and from hearing Geddly Isa’s taped interviews is that hegemony held sway and that if I may seek to enunciate a truncated synthesis of arguments of both Mr. Lawrence and Ms Faasau, reification is now used to reason that Geddily Isa should not be held to his statements. I use reification in the sense explained by Fay B 1987; 92 Critical Social Science Liberation and its Limits- Polity Press, Cambridge, for reification (laws of social life assigned a power of their own) whilst a key idea in Fay’s critical knowledge philosophy, must also be viewed with that other idea discussed in the same context, false consciousness or the systematic ignorance that members of a society have about themselves and their society (Fay 1987 at 27). Mr. Lawrence argument pays credence to these ideas for whilst William Hence impliedly claims not to recognise a differentiation between stories and a cognitive connection with criminal investigation per se, it is plain that he too is reliant on subjectivity to show his personal experiences and truths did not equip him to effectively take account of the RAMSI purpose in "storying".

It is that manifest failing in "intersubjectivity" or how he had understood RAMSI’s intrusion and presence in his social world on the Weathercoast that gives rise to his argument on unfairness.

It should be accepted that RAMSI’s presence on the Weathercoast in the circumstances was beyond these two "lived experiences". Nevertheless, when I heard the Crown evidence especially that of Officer Stafford, which I’ve quoted and Officer Folau, RAMSI’s purpose was broken to these people gently, there was no apparent wish to be confrontational rather as can be gleaned negotiation and explanations coupled with time to assimilate change was used. In the case of William Hence, his intelligent response in the witness box gave me reason to find that an appreciation of a cognitive thread, through story telling, in the presence of police officers leading to identification of criminal acts perhaps, was not beyond him. His right to silence given in warning must put him on notice of this intended cognitive thread, for that is a purpose of the warning. Retrospective analysis of the reasons argued by Mr. Lawrence for Mr. William Hence to speak to the investigating officer does tend to a view that the events were determined, the outcome predictable and the scope of choice limited. This is a determinist argument which sees everything retrospectively and leaves no real room for freedom of choice in the defendant. I do not accept the argument.

As I’ve said I’m not satisfied either ego-centric view of story telling in such degree should dictate that I reject the records on the grounds of unfairness. The records of interview maybe tendered on the trial.

THE COURT