Regina v Paul [2009] SBHC 44; HCSI-CRC 348 of 2007 (1 September 2009)

HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Criminal Case No. 348 of 2007

BETWEEN:

REGINA
Claimants

AND:

EDDIE PAUL
Defendant

(Mwanesalua, J.)

Date of Ruling: 1st September 2009

DPP in person and Ms. Tafoa for the Crown
Mr. Cavanagh for the Accused

RULING

Mwanesalua J:

Eddie Paul, "the accused", challenged the admissibility of the caution statement he made to the Police at Rove on 10th January 2006. He alleges that the interviewing and recording Police Officer breached the Judges Rules by:

(1) not giving him an opportunity to write his own statement;

(2) not giving him an opportunity to alter anything, correct any thing or add anything to the record of interview; and

(3) that the statement was not read back to him.

Former PC Surii and PC Vouza gave evidence on the conduct of the interview and the recording of it. Mr. Surii said that he interviewed the accused at the Sensual Assault Unit Office at Rove on 10th January 2006. His witnessing officers were PC Vouza and PPF Advisor Gino Gaspari. He conducted the interview in question and answer form. He sat in front of a computer and typed the questions he put to the accused and their answers with that computer. He typed the questions and answers word by word. He read the record of interview back to the accused after he typed it. The accused agreed with the statement. He then printed it out and was signed by the accused, PC Vouza, PPF Gaspari and himself. The interview was conducted in pijin, the language which the accused understood. In his evidence PC Vouza confirmed that the record of interview was read back to the accused and that he was one of the witnessing officers during the interview.

The Law.

The Preliminary part of Judges Rules ("the rules") relevantly state;

"Courts want to be fair to Police Officers who have a hard job to do in bringing cases to court but also be fair to persons who are suspected and accused of crimes. The law says that if a man says something it may be brought up in court as evidence. But the court must be satisfied that the man said what he did of his own free will, that is, that he was not forced or threatened or promised something and he know what he was doing. The following rules should be used in relation to interviews as then the court can see that a man was given the right warnings".

The rules also require an accused person to be given the opportunity to write his own statement. The rules state;

"If you wish to remain silent you may do so. If you wish to, you may give a written statement. You can write it or I will. That is up to you. If you give a written statement it may be produced to a court if you go to court. Do you wish to give a written statement? "

The rules further provide an opportunity for an accused to make any changes to the record of interview if written by a Police officer. The rules state;

"The suspect should be given a chance to read the statement or it should be read to him. He should be asked if he wants to alter anything, correct anything or add anything. If he says he does, alterations should be made as requested or he should make the alterations himself".

In R V. Lee[1]. The High Court of Australia said,

..."As has already been pointed out, the protection afforded by the rule that a statement must be voluntary goes so far that is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission. The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded. But it cannot be denied that they do not in every respect afford a very satisfactory standard. Their language is in some cases imperative and in others merely advisory: sometimes the word "must" is used: sometimes the word "should", and the tendency to take them as a standard can easily develop into a tendency to apply rejection of evidence as in some sort a sanction for a failure by a police officer to obey the rules of his own organization, a matter which is of course entirely for the executive. It is indeed, we think, a mistake to approach the matter by asking as 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’s statement. It is better to ask whether, having regard 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"...

In R V. Viosin[2] Lawrence J Said,

"These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners contrary to the spirit of these rules may be rejected as evidence by the judge presiding at the trial."

In Ben Tofola v R[3]. The court said,

"Accused must point to some material in evidence which will satisfy the court that admitting the evidence will be unfair".

There is evidence that the accused cannot read. His statement was read to him by then police officer Surii. He was cautioned and told that he was being interviewed about an allegation of rape made against him by the victim. He was told that the alleged rape occurred in Francis Loxie’s house at New Geza on the previous day. He understood that allegation. It is clear that he was not given an opportunity to write his own statement. But the accused could not read and impliedly write because of his lack of formal education. Further, he was not asked if he wished to alter, correct or add anything to his statement. The most important thing is that he was warned that he could remain silent. He understood that but he elected to give a statement in relation to the rape allegation made against him by the victim. My duty as trial judge is to see that the accused has a fair trial according to law. The question here is whether the use of the evidence in the caution statement with the omissions alluded above would be fair or unfair to the accused. First, the language of the rules is not imperative but merely advisory. And second, the interviewing and recording officer has substantially complied with the spirit of the rules. The accused has not satisfied the court that admitting the statement will be unfair to him in this trial. The record of interview will therefore be admitted.

F Mwanesalua J
THE COURT

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^[1] Regina v. Lee [1950] HCA 25; (1950) 82 CLR 133 at 154
^[2] Regina V. Voision (1918) IKB 531
^[3] Solomon Islands Court of Appeal (unreported Criminal Appeal No 27 of 1993