Regina v Lusibaea [2008] SBHC 11; HCSI-CRC 355 of 2004 (25 February 2008)

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Ms Kleinig and Mr McConaghy for the Crown
Ms Brown for Lusibaea
Mrs Anderson for Fefele
Ms Manning for Ila and Kiki
Ms Lidimani for Kwaimani

1	This ruling is as to whether certain written statements given by some of the accused to Police ought to be excluded as evidence. The contention in these voir dires is that they were not given voluntarily, and were obtained unfairly. They were obtained during the course of a police investigation into the alleged attempted murder of the victim Moses Garu on 10 May 2000.
2	I deal first with the written statement of Rex Ila dated 12 January 2004. The evidence of Sergeant Fox, the investigating Participating Police Force officer who took the statement, is that on that morning Mr. Ila was arrested and cautioned, and then transported to the Central Police Station at Rove for the taking of a caution statement with the aid of an interpreter. Sergeant Fox’s evidence is that at the Police Station Mr. Ila was told of the reasons for his arrest, was advised of his rights to a lawyer which he declined, was again cautioned in the terms of the Solomon Islands version, and that a statement was then taken from him with the use of an interpreter. It is common ground that this statement was then signed by Mr. Ila, Sergeant Fox, and the interpreter. Sergeant Shaw, who was present throughout this whole process, gave evidence which supported that of Sergeant Fox.
3	Mr. Ila’s version of evidence differed materially. He contended that on that morning he responded to a message which had been left for him by Sergeant Fox, and turned up of his own free will at Panatina Plaza. He says he was told by Sergeant Fox that he would be used as a witness, and that under this mis-apprehension he accompanied the officers to the Police Station and gave a statement. He says that the statement which was taken was not his story because it was a version relayed by the police officers and said by them to be that of Alick Fefele and John Kiki. Mr. Ila further complains that he asked for a lawyer but this was refused.
4	The statement is largely handwritten. However, there are two opening paragraphs which were pre-typed on the form. These read: "This statement made by me accurately sets out the evidence I would be prepared to given in Court as a witness. I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have stated in it anything which I know to be false or do not believe to be true."
5	It is immediately apparent from that wording that it is specifically tailored to witnesses, as distinct from suspects. It is an acknowledgment by the maker of the statement that he would be prepared to give that evidence in Court "as a witness".
6	The only warning contained in the wording is that the maker shall be liable to prosecution if the statement is tendered in evidence and transpires to be knowingly false. Significantly, there is no warning that the statement may be used against the maker in Court.
7	Notwithstanding the inclusion of those paragraphs designed for witness’ statements alone, the evidence of the police officers was that the 12 January 2004 statement was made under caution, that is it was a caution statement. The evidence of Sergeant Fox was that his practice was to use such pre-formatted statement forms, with those opening paragraphs already typed on the form, for suspects as well as witnesses.
8	The Crown relies on the evidence that Mr. Ila was cautioned in the normal way prior to the making of the statement, and importantly on the handwritten paragraph immediately following the pre-typed words. That handwritten paragraph says: "I have been cautioned and understand that I can remain silent, but I wish to make this statement and tell my story."
9	The Crown asserts that this is an acknowledgment by the maker of the statement that he has received a caution, understands that he can remain silent, but nevertheless chooses to make the statement. The Crown says that the fact that the content of the caution is not recorded in its entirety, in that paragraph does not mean that Mr. Ila was given less than the full caution before he made the statement, and points to the evidence of the police officers that such full caution was given.
10	One essential part of a caution is missing from the document. That is, the fact that if made, the statement may be used in Court. This is, of course, an integral part of a caution to a suspect – that if he does give his story, it can be used in Court.
11	The Judge’s Rules (SI) require a suspect statement, also known as a caution statement, to start with the words: "I agree to give this statement of my own free will, [I want the policemen to write down my statement.] I have been told I can remain silent. I know the statement may be used in Court. It is true what I now put in the statement." The words in brackets are only included if the suspect requests the police officer to write the statement. The reason for specifying that the full caution should be recorded is so that the Court may be satisfied, so far as is possible, that the suspect was in fact given and understood the rights contained in a caution, including the consequences of making a statement.
12	In Mr. Ila’s statement, the paragraph relating to the caution omits altogether any reference to the consequences of making a statement, namely that it may be used in court.
13	The evidence of Sergeant Fox is that once the statement from Mr. Ila was recorded, and before he was asked to sign it and acknowledge it had been made of his own free will, the statement in its entirety, including the two typed opening paragraphs relating to witnesses, was read back to Mr. Ila through the interpreter. After that, Mr. Ila signed it.
14	Accordingly, what was read back to Mr. Ila were the paragraphs relating to witnesses only, a truncated version of the caution omitting any reference to the consequences of making a statement, and the story itself. The omission to record that the statement could be used in Court is made more significant by the acknowledgment in the preceding paragraphs that the maker would be prepared to give evidence in accordance with the statement "as a witness". The only warning contained in the wording is the threat of prosecution if the story is knowingly false. There is no warning that the statement may be used against the maker. Providing a statement as an intended witness for a future trial is, of course, a vastly different thing to providing a statement as a suspect in the knowledge that what you say may be used against you in Court.
15	The Crown points to the evidence of Mr. Ila’s arrest, the caution said to have been provided to him prior to the making of the statement, the giving to him of his rights to a solicitor and interpreter, and the fact that in his evidence he appears to have appreciated that he was going to be formally charged. The Crown says that in light of this no lack of voluntariness or unfairness arises in the making of the statement.
16	As I have stated, only one aspect of the caution is recorded, namely the right to remain silent. There is no reference at all to the equally important advice in a proper caution that if you do not remain silent what you say may be used in Court. That is, against the maker. Therefore the Crown has to rely on the evidence from the police officers that the caution was given in the correct way prior to the taking of this evidence.
17	Having listened to the evidence of all three police officers (which included the officer used as an interpreter), I do not consider any of them had any independent recollection of the giving or content of any caution given on 12 January 2004. The giving of cautions was routine and unremarkable for them, and there was nothing to indicate any particular reason as to why they should remember the giving of this particular caution, let alone its content.
18	Nor am I prepared to accept from Sergeant Fox that because his evidence is that he always gave a caution in the full form, that he necessarily did so in this case. As I stated, the reason why the Judge’s Rules specify a recorded written acknowledgement in a statement by a suspect that the full caution has been given and understood is so that Judges can be satisfied from that record that this procedure has been followed. Here the record is as to only one part of a full caution.
19	Even had I been prepared to accept that a full and correct caution was given prior to the making of the statement, I still consider this statement as written and read to the maker to be confusing. There is the wording as to the witnesses, which is totally inappropriate for a suspect statement. There is then only a partial caution recorded. All this is then read to the maker before he is asked to sign the document. Whatever preceded the statement, when this is read there must be real scope for confusion in the mind of the maker of the statement as to precisely what are his rights, and what are the consequences of the making of a statement.
20	Nothing in the evidence of Mr. Ila dissuades me from the view that the inconsistencies in the document would necessarily have given rise to confusion on his part.
21	The Crown rightly point to a portion of Mr. Ila’s evidence where he stated that he asked for a lawyer because he "realized that hey, they’ve charged me". The Crown say this demonstrates that Mr. Ila knew that before he gave a statement he was a suspect. One has to consider Mr. Ila’s evidence as a whole, though, including his contrary assertions that he thought he was a witness. In any event, whatever he may have actually thought immediately prior to the giving of his statement, when the wording of the opening parts of this statement was read back to him, once the statement was written and before he was asked to sign it, there is necessarily real scope for confusion.
22	Because of the view I have taken, it is not necessary for me to make findings on the various factual matters which were in dispute as between the police officers’ evidence and that of Mr. Ila.
23	I find that the Crown has not discharged its onus to satisfy the Court, beyond reasonable doubt, that the statement of Mr. Ila dated 12 January 2004 was given voluntarily. I also consider the defence has satisfied me, on the balance of probabilities, that the taking of the statement in this manner was unfair.
24	This is a proper case for me to exercise my discretion and direct that the statement is inadmissible and is therefore to be excluded from the evidence. I so order.
25	The suspect statement from John Kiki dated 9 January 2004 suffers from precisely the same deficiencies, and once again I consider that there was real scope for confusion on the part of Mr. Kiki when that statement was read back to him. Nothing in his evidence dissuades me from that view, and because of this it is not necessary for me to canvass and make findings on the various factual disputes which arose in other areas. I make a similar order excluding from the evidence Mr. Kiki’s statement dated 9 January 2004.
26	This leaves for consideration the three statements of Lemuel Kwaimani dated 17 November 2003, 8 January 2004 and 30 January 2004.
27	On 17 November 2003 Mr. Kwaimani attended Sergeant Fox at Panatina Plaza and provided a witness statement in relation to the investigation into the attempted murder. The investigation was then in its very early stages and I accept that Mr. Kwaimani was at that stage properly considered by police to be a witness and not a suspect.
28	The complaint Mr. Kwaimani has about this statement is essentially that despite the fact that his English was poor, he was required to give a statement in English and without being offered an interpreter. The evidence from Sergeant Fox is that he formed the view that Mr. Kwaimani was able to speak and understand English, although he acknowledged that his English was not good.
29	Then on 8 January 2004 Mr. Kwaimani at the request of police met with Sergeant Fox again at Panatina Plaza. Sergeant Fox said he met with Mr. Kwaimani "to review .. his first statement and some inconsistencies in relation to that first statement". Sergeant Fox’s evidence was that at that time he still viewed Mr. Kwaimani as a witness and not a suspect. Hence a further statement, placing Mr. Kwaimani at the MEF camp on the day of the alleged attempted murder and before the incident occurred, was taken. No caution was administered because it was said Mr. Kwaimani was still viewed as a witness.
30	It is plain that between the taking of these two statements, namely the period 17 November 2003 to 8 January 2004, Sergeant Fox had obtained some further information in relation to the investigation. That information was from an Andrew Nuimalefo, who provided a statement to police on 5 January 2004 and which placed Mr. Kwaimani at the MEF camp on the day of the attack and prior to it occurring.
31	It would be seem that this was the only further evidence Sergeant Fox had received in relation to Mr. Kwaimani since the taking of Mr. Kwaimani’s first statement on 17 November 2003. I accept Sergeant Fox was reasonably entitled, as at 8 January 2004, to hold the view that Mr. Kwaimani was still only a witness in the matter. At that stage, police were not in possession of any strong evidence upon which they could have charged Mr. Kwaimani. In placing Mr. Kwaimani at the MEF camp, Andrew Nuimalefo’s statement does not say or necessarily suggest that Mr. Kwaimani was standing in a position where he must have overheard talk of killing a man in Chinatown.
32	Nor had Sergeant Fox, as at 8 January 2004, taken statements from Mr. Ila or Mr. Kiki. Both placed Mr. Kwaimani at the MEF camp on the morning prior to the attack that day, and both stated Mr. Kwaimani was the driver of the taxi which took them to the scene of the attack. While the statements do not necessarily imply that Mr. Kwaimani would have heard any talk of killing a man, they reinforce that of Andrew Nuimalefo as to Mr. Kwaimani’s presence at the camp (it was suggested by one defence counsel that Andrew Nuimalefo had a long criminal history and wasn’t a very credible informant).
33	As stated, I accept that Sergeant Fox was reasonably entitled to hold the view that as at 8 January 2004 Mr. Kwaimani was still a witness.
34	Mr. Kwaimani gave evidence that Sergeant Fox told him what to say in this amended statement of 8 January 2004. I reject this. When one looks at the content of the statement and compares it to Andrew Nuimalefo’s statement in so far as it relates to Mr. Kwaimani, there are a number of factual differences. For example, while Andrew Nuimalefo’s statement places Mr. Kwaimani as nearby the barbecue while a plan to kill a man is made, Mr. Kwaimani in his statement places himself some 15 metres away, near his taxi, and says nothing about overhearing any plan. This information, as with the details in Mr. Kwaimani’s statement as to who was standing around the barbecue (which differs from Andrew Nuimalefo’s account), could only have been provided by Mr. Kwaimani.
35	Mr. Kwaimani’s evidence that Sergeant Fox made him adopt a version given by Rex Ila and John Kiki is also plainly incorrect, as Sergeant Fox had yet to take a statement from either of those individuals. Nor do I accept that Sergeant Fox told Mr. Kwaimani that he ought not to be afraid of Jimmy Rasta, or that Sergeant Fox commented about the first statement in any way other than referring to the need for a review and there being some inconsistencies.
36	It was argued that sergeant Fox’s method of taking a statement was unfair in itself. His evidence was that he first listened to a witness’s story without writing anything down, asked clarifying questions, and then asked the witness to tell his story again. It was on this second telling that he would record it in writing. Though this practice could be considered somewhat unusual, I do not accept that it is inherently unfair.
37	As to the assertion that both the first and second statements were unfairly obtained in that Mr. Kwaimani should have been provided with or offered an interpreter, the content of the statements themselves support Sergeant Fox’s evidence that he considered Mr. Kwaimani’s understanding of the English to be sufficient. Sergeant Fox spoke no pidjin and understood little, so the only language spoken in respect of both statements was English. The statements describe Mr. Kwaimani’s actions on that day in some detail and contain a myriad of information which could only have come from Mr. Kwaimani. The statements differ in content and demonstrate a grasp of English by Mr. Kwaimani sufficient to provide these differing accounts
38	It was also clear from Mr. Kwaimani’s evidence that he understood some English. He asserted (although wrongly) that Sergeant Fox had pressed on him the need to adopt Mr. Ila’s and Mr. Kiki’s version of events, suggesting he had an understanding of English.
39	I am satisfied that Sergeant Fox was in a position where he could and did appropriately assess that Mr. Kwaimani’s grasp of English was such that no interpreter was required.
40	Mr. Kwaimani’s counsel also relied on the fact that Mr. Kwaimani was relatively uneducated and not used to talking to a white police officer, and that these factors combined with his limited understanding of English warranted at least the offer of an interpreter. I do not accept this. Having formed the view that Mr. Kwaimani had a sufficient understanding of English, and in the absence of any request for assistance by Mr. Kwaimani, in my opinion it was appropriate for Sergeant Fox to proceed with the taking of the witness statement.
41	The third statement from Mr. Kwaimani was taken on 30 January 2004. It is virtually identical in factual content to the second statement. It contains a recorded reference to a caution having been given. There is a great divergence in the evidence as to how that statement came to be signed. Mr. Kwaimani gave evidence that it was prepared by police and when he arrived at Panatina Plaza he was simply handed it to read and sign. The evidence from the police officers was to the effect that Mr. Kwaimani was first cautioned, and then sat with Sergeant Fox at a computer while the changes to his second statement, said to have been saved on the computer, were made.
42	The form of the statement suffers from the same deficiencies that I have identified in the statements of Mr. Ila and Mr. Kiki, that is, the statement contains the opening paragraphs relating to witnesses only, and then the same truncated version of the full caution. Mr. Kwaimani said that he read this statement, and I accept that. There is nothing in the evidence Mr. Kwaimani gave to dissuade me from the view that there was real scope for confusion in the mind of the maker as to precisely what were his rights and what were the consequences of providing the statement.
43	I exclude the statement from evidence on this ground, making it unnecessary for me to make findings in relation to the very differing versions of events given in evidence.
44	Ms. Lidimani argues that if the third statement is inadmissible, as I have decided it is, then the first two statements would be tainted with the deficiencies surrounding the third statement.
45	I do not accept that if the first two witness statements were made voluntarily and fairly, then deficiencies apparent with the taking of a third and subsequent statement would affect that conclusion. For clarity, I consider that even had I made a finding that the third statement was pre-prepared and simply handed to Mr. Kwaimani to read and sign (and no such finding was made), then this would have had no bearing on my considerations of voluntariness and fairness in relation to the earlier statements.
46	For the reasons given, I consider that the Crown has discharged the onus of establishing beyond reasonable doubt that the statements of 17 November 2003 and 8 January 2004 were made voluntarily. Further, I do not consider there was unfairness in the taking of them. They will therefore be admissible as admissions on the part of the accused Mr. Kwaimani.

High Court of Solomon Islands

Regina v Lusibaea [2008] SBHC 11; HCSI-CRC 355 of 2004 (25 February 2008)