Regina v Rikiloni [2009] SBHC 56; HCSI-CRC 05 of 2008 (16 September 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 5 of 2008

REGINA

V

JIMMY RIKILONI, FRANK FIRIMOLEA AND JOHNSON BAEMAELIA

Date of Hearing: 10 August – 16 September 2009
Date of Decision: 16 September 2009

Ms. R. J. Christensen and Mr. A. Kelesi for Crown
Ms. K. Anderson for F. Firimolea and J. Baemaelia
Mr. A. Kesaka for J. Rikiloni

DECISION ON ADMISSIBILITY OF VARIOUS
STATEMENTS/RECORDS OF INTERVIEW

Cameron PJ:

1. The three accused in this case are charged with burglary, robbery, rape and in the alternative attempted rape. They have pleaded Not Guilty to all charges.

2. The Crown case is that on about 1 October 2006, at the Seventh Day Adventist’s (SDA) compound in East Honiara, a house then occupied by a couple was broken into during the night by men armed with knives and stones. The Crown says that during that break-in the female occupant was repeatedly raped. Various items were stolen from the house. The Crown contends that these offences were committed by the three accused.

3. Following the incident, each of the accused on the face of it made various admissions in written statements and/or in interviews with the Police during the investigation process.

4. The admissibility of all the written statements and records of interview is challenged on behalf of each of the accused. As such, this Court conducted a series of voir dire hearings over a number of days, in which various police officers gave evidence. Each of the accused elected not to give or call any evidence in reply.

5. The issue is whether or not the alleged admissions in each of the statements and records of interview were made voluntarily, and if so whether or not they were obtained in circumstances of such unfairness that in any event they ought to be excluded from the evidence.

6. I now consider the position in relation to each of the accused in turn.

A. John Baemaelia

Statement dated 10 November 2006 – Exhibit VDP 1.

7. This is a handwritten statement taken by PC Rangi from J. Baemaelia. It is not a statement taken under caution. The Crown argues that a caution was not necessary as J. Baemaelia was at that point only a witness and not a suspect.

8. In the recent Court of Appeal decision of Kwaimani v. Regina (SI CA No. 12 of 2008) the Court of Appeal stated, at page 6:

"The test whether a person is a witness or a suspect must be an objective one. The subjective opinion of the investigating officer can never be conclusive."

And at page 7 the Court of Appeal further stated:

"Looked at objectively there was a prima facie case implicating the appellant pursuant to section 21(b) of the Penal Code in the attack of the victim. In the circumstances that amounted to "strong evidence" for the purposes of the Judges Rules."

9. As at the date of the statement on 10 November 2006, police were already in possession of various information in relation to J. Baemaelia’s alleged involvement in the incident. On 3 October 2006 one of the other accused Jimmy Rikiloni named "small John" who "lives at Burns Creek next to Luke Lale’s (from Reef) house" as one of the group who went to the SDA house at the time of the incident. It was accepted by a number of police officers in evidence that John Baemaelia was also known as ‘small John’ and that he lived at Burns Creek close to the house of Luke Lale from the Reef Islands.

10. Further, J. Baemaelia’s involvement in the SDA incident was confirmed by a John Tabai in a record of interview with the police on 9 October 2006. As to this, it is part of the agreed facts that John Tabai "implicated ‘small John’ and other persons as involved in the alleged offending." I mention that it was also part of the agreed facts that the victims were unable to identify any offenders and there were no eye witnesses who identified suspects.

11. The evidence of PC Rangi, who took the 10 November 2006 statement from J. Baemaelia, was that he was instructed by his In Charge to take an open statement from him. That is, a statement with no caution. PC Rangi gave evidence that the police had their suspicions about him, but that he did not believe J. Baemaelia was a suspect at the time the statement was taken.

12. Notwithstanding this subjective view expressed by PC Rangi, I consider that as at 10 November 2006, prior to the statement being taken from J. Baemaelia, there was a prima facie case implicating him in the SDA incident. That came from the records of interview of the accused J. Rikiloni on 3 October 2006, and John Tabai on 9 October. It is irrelevant that the officer who took the statement may not have been aware of these assertions against J. Baemaelia prior to the taking of the statement. The fact of the matter was that such information had been gathered by the police investigating team and should have been made available to those taking further statements and participating in records of interview. The fact that it may not have been does not make it any the less information in the possession of the police.

13. As J. Baemaelia was on an objective assessment a suspect when taken into custody on 10 November 2006, he should have been cautioned at the time his statement was taken. He was not.

14. Even had J. Baemaelia not been a suspect (judged on an objective basis) before the statement, I note that at a certain point in the taking of the statement J. Baemaelia admits to being with others outside a property at night when one of the groups cut the fence with a fence wire. This admission is an incriminating one as it potentially brings into play sections 21 and 22 of the Penal Code and in my view PC Rangi ought at that point to have ceased taking the statement and treated him from then onwards as a suspect (including the administering of a caution) – see R v. Cobb [2006] BCL 806.

15. In all the circumstances the Crown has not satisfied the Court that the 10 November 2006 statement was given voluntarily, and I find it to be inadmissible on this basis. I need not, then, consider the additional contention that the statement was unfairly obtained.

Statement Dated 11 November 2006 – VDP2

16. Inspector Balaga’s evidence was he took this written statement from J. Baemaelia on the morning of 11 November 2006. Inspector Balaga gave evidence that no caution was given to J. Baemaelia "because of the information that he had nominated some people that were involved in the burglary at Betikama. I decided to take a general statement from him." That is, that he was interviewed to ascertain the identity of other persons who were involved.

17. Inspector Balaga, who headed the investigation, said he was not aware that police already had information from J. Rikiloni’s statement of 3 October 2006 that J. Baemaelia was involved in the commission of the offence. He also gave evidence that at the time of taking the statement he was not aware that J. Baemaelia had provided a statement the day before, on 10 November 2006. In other words, he did not view him at the time of the 11 November 2006 statement as a suspect.

18. I accept the Crown’s contention that as coordinator of the investigation, Inspector Balaga would have been likely to have been the officer most appraised of the sufficiency of the evidence against all the persons said to be involved. As such, he ought to have been the person best placed to determine whether or not a person was a suspect at any given time. I also accept that Inspector Balaga may not have been aware of the information gathered from J. Rikiloni on 3 October that J. Baemaelia was involved in the offending, or been aware that a statement had been taken from him the day before he took the 11 November 2006 statement. Notwithstanding this, such information formed part of the overall information gathered during the investigation up to that point in time, and Inspector Balaga ought to have been aware of its existence (and especially the fact that a statement had been taken from the same person the day before, on 10 November 2006, at the same locality, namely Central Police Station, Rove). Lack of actual knowledge does not alter the fact that on an objective assessment of the evidence, J. Baemaelia ought to have been regarded as a suspect, and therefore should have been cautioned.

19. I note also that the statement was not signed by either Inspector Balaga or J. Baemaelia. The explanation from Inspector Balaga was that there was no ink available to enable J. Baemaelia to affix a thumb-print instead of a signature to the statement (he being unable to read or write), and that he, Inspector Balaga, forgot to sign the statement. Despite these explanations, because the statement is unsigned I cannot be satisfied that it accurately records what was said by J. Baemaelia.

20. For these reasons the Crown has not established beyond reasonable doubt that the statement was made voluntarily, and I exclude it from the evidence on this basis.

Interview 11 November 2006 – VDP3

21. This record of interview was conducted by PC Manuala, commencing at 4 pm on 11 November 2006. It took the form of questions and answers. In answer to question 9 as to his age, J. Baemaelia responded that he was 13 years old.

22. I note that a caution in pidgin language in accordance with the Judges Rules was given to J. Baemaelia, and that he answered affirmatively when asked if he understood this. While he was not then asked to explain back his understanding of the caution, I am nevertheless satisfied that he understood the caution. While the evidence was that he could not read or write and was of very limited education, nevertheless from his recorded answers to the interview and his previous statement the day before I am satisfied that he fully understood pidgin English. The caution itself was in very clear terms. I note also there is no evidence from J. Baemaelia that he did not understand the caution, or felt that he had to answer the questions. I am satisfied that the statement was made voluntarily.

23. PC Manuala gave evidence that he was not aware of the accused’s age until the accused stated he was 13 years old during the interview, but he also gave evidence that the same afternoon he and PC Richard Aike had driven around and tried unsuccessfully to locate the parents and brother of J. Baemaelia. When confronted with why he had tried to locate family members before the interview when he had stated in evidence he was unaware of the accused’s age until after the interview had commenced, he then stated that Inspector Balaga had told him prior to the interview that J. Baemaelia was 13 years old. He agreed under cross examination that he had made no notes in his police notebook about having tried to locate those persons, and agreed that there was no record of this in the interview itself. Furthermore, PC Aike later gave evidence to the effect that he had not accompanied PC Manuala on this search.

24. I found the evidence of PC Manuala as to his alleged attempts to locate the parents and brother of J. Baemaelia unconvincing, particularly in the absence of any written notes whatsoever in relation to this. I consider that it has not been established that these enquiries in fact took place.

25. In a similar vein, PC Manuala gave evidence that about an hour before the interview, he had asked the accused whether he wanted to see a lawyer. The officer’s evidence was that the accused had replied that it was alright, that ‘he would find a lawyer after’. Once again, there are no notes from the officer about this, and nothing in the interview recording this had taken place. I am not satisfied that the officer had any independent recollection of the matter and am unable to accept any such discussion took place.

26. PC Aitorea, who was the witnessing officer at the interview, gave evidence to the effect that PC Manuala had told him that prior to the interview J. Baemaelia had been offered a lawyer and an adult to be present during the interview. This was an unconvincing explanation given in response to questions of that officer as to whether he himself had made any such offers to the accused, and no details of any such alleged conversations were provided. I am not satisfied that any such conversation took place.

27. In the interview itself there is no record of the accused being asked, when he disclosed his age as 13 years, whether he wished a guardian or other independent adult to be present. Nor is there any record of any question to the accused as to whether he wished to obtain legal advice before continuing with the interview. For the reasons given, I am satisfied that at no stage was J. Baemaelia asked whether he wished to see a lawyer.

28. I mention that a number of police officers who gave evidence were asked if they were aware of a police practice or procedure requiring that a juvenile under suspicion of having committed an offence be offered the opportunity for an independent adult or guardian to be present during the taking of a police statement or record of interview. The answers varied both as to whether a practice or procedure existed and if what that practice or procedure was. I am unable to determine from the evidence whether a practice or procedure existed, and if so what it was. However, in the taking of statements and conducting interviews with young persons (i.e. persons under 18 years of age) who are suspects, there is a greater risk because of their young age that they may not fully understand the process and its implications and may feel a degree of compulsion to acquiesce in answering questions. If it is the wish of a juvenile to have a guardian or other adult present for the statement or interview then clearly that is desirable, as it is likely to lessen the risk that the young person will be overborne by the process. Of course, unless the juvenile is asked whether or not he or she wishes such a person to be present then there is no real way of knowing the wishes of a juvenile in that respect. If the presence of such a person is requested, then as long as it is reasonably practicable to arrange it would be desirable to do so. I note that the Juvenile Offenders Act (Cap 14) requires that persons under the age of 18 years (young persons) be treated differently from adults by the Court, the Police and Correctional Services in a number of respects, but does not specifically deal with the taking of statements or the conducting of interviews with young persons. However, the recognition the legislation gives to the need to handle young persons in a different way to adults is significant, and logically extends to statements and interviews by young persons who are suspects.

29. I find that in this case J. Baemaelia as a 13 year old was not asked whether he wished to have an independent adult or guardian present during the interview. When combined with the finding that no attempts were made to locate a parent or guardian prior to the interview, and the finding that he was not offered the opportunity to obtain legal advice, and this in the context of having been held in custody for approximately one and a half days during which he had already made two previous statements, I consider that the discretion to exclude the statement ought to be exercised. In other words, I am satisfied that the defence has established, on the balance of probabilities, that it would be unfair to admit the record of interview into evidence. It is excluded accordingly.

Interview 14 November 2006 – VDP4

30. This record of interview was conducted with the accused by PC Aike and witnessing officer PC Molaki. The accused was uplifted by police from his house for this purpose, was not told he had a choice as to whether to accompany police for the purposes of the interview and was not arrested. PC Aike, who collected the accused from his house, was aware that the accused had already been charged in relation to the SDA matter on 11 November.

31. At an early stage of the interview the accused was given a caution in a form which complied with the Judges Rules. He answered in the affirmative when asked if he understood the caution. Once again, I am satisfied from all the evidence that he understood the caution and that the statement he made was voluntary.

32. As to the contention by the defence that it was unfairly obtained, PC Aike as the interviewing officer gave evidence to the effect that he knew that the accused was a juvenile, and that the presence of a parent or guardian ought to have been offered to the accused. However, because of work pressure, PC Aike said that this did not occur. I accordingly find that no such offer was made.

33. PC Aike could not recall whether or not he had offered the accused the opportunity to obtain legal advice. He acknowledged there was nothing in the interview to that effect and nothing about this in his police notebook. In the circumstances, I find that no such offer was made.

34. Another point of significance is that the interview took place 3 days after the accused had already participated in an interview with the police on 11 November 2006. The interviewing officer did not point to any new information to hand in that intervening period to warrant a second interview taking place. It is also significant that following the 11 November 2006 interview, the accused had been charged over the SDA matter.

35. I find that the circumstances outlined combine to create a degree of unfairness which justifies the exclusion of the interview from being admitted into evidence, and exercise my discretion to exclude it accordingly.

B. Frank Firimolea

Interview 4 October 2006 – VDP5

36. The accused Frank Firimolea participated in a record of interview dated 4 October 2006. This was conducted by the Detective Sergeant Taro, and PC Nola was the witnessing officer.

37. It was accepted that Frank Firimolea was a suspect at that time, and he was administered a caution during the interview. The caution was given to him in pidgin language and appears as question 13 of the interview. The English translation of it, and the answer from the accused, is as follows:

"Q13: Before I continue with the Record of Interview I would like to remind you that the Police are not forcing you to say anything or even to answer any questions that I might ask you. If you like you must think very carefully about what you are going to say. Because anything you say will be written down and may be produced in Court if you go to Court. Do you understand the caution I just read to you?

A13: Yes".

38. It will be noted immediately that the wording of the caution does not use phrases such as ‘if you want to remain silent you may do so’ and ‘you have the right to remain silent’. There is no use of the word ‘silent’ or ‘silence’. By contrast, the Judges Rules, in outlining the content of suspect warnings for interviews and statements, commence with the words:

"I you want to remain silent you may do so."

39. The issue is whether in the particular circumstances the words actually used, namely "the police are not forcing you to say anything or even to answer any questions that I might ask you", adequately convey to the accused that he has a right to remain silent.

40. To an educated person those words mean precisely that. However, the police in this case were dealing with a 16 year old with a level of education "as far as class five (5) of Takwa". That is, a person of very limited education.

41. The relevant words used commenced with the words "the police are not forcing you". Broken down, what the accused was told was that "the police are not forcing you to say anything", and "the police are not forcing you even to answer any questions".

42. I consider that in certain circumstances advice as to the right not to say anything prefaced with the words "the police are not forcing you" could operate to exert a subtle pressure on the suspect to cooperate in answering questions. It could be construed as implying that while answering the questions is not obligatory it is nevertheless desirable, and in that way mask the advice as to an unqualified right to say nothing. In other words, to use the words ‘not forcing’ to describe a basic right not to do something is to potentially cloud the meaning of the unfettered right.

43. The use of the word ‘even’ in the phrase ‘or even to answer any questions’ could add to that subtle pressure, as it could be said to carry an implication that not to answer the questions would be unusual. In the circumstances of this case, the accused was a juvenile of limited education. Added to that is the evidence which I accept that he was not offered the opportunity of having a parent or guardian present, or to take legal advice. Thus there was no one for him to consult. I cannot, then, exclude the possibility that the caution in the form given delivered a mixed message to this accused, rather than conveying clear and simple advice that he had a right to remain silent.

44. In all the circumstances I am not satisfied that the Crown has established that the interview on the 4 October 2006 was made voluntarily. I exclude if from the evidence accordingly.

Interview 24 October – VDP6

45. This record of interview took place on 24 October 2006, and was conducted by PC Kalola, with PC Molaki being the witnessing officer.

46. The accused was brought from prison for the interview. He received a caution at an early part of the interview.

47. PC Kalola had been instructed to conduct the interview by Inspector Balaga. Inspector Balaga gave evidence as to what occurred prior to the interview being conducted. His evidence was to the effect that a group of suspects, including Frank Firimolea, had been brought from prison to CID headquarters on 24 October 2006. It is clear from his evidence that these interviews were to have taken place on the previous day, 23 October 2006, and that it was his belief that they did not proceed on that day because the suspects had refused to attend following advice from the Public Solicitor’s office as to their rights in that respect. It is clear that this set the scene for his discussions with the group when they were brought for interview to CID Headquarters the next day, 24 October 2006. His evidence was to the effect that he addressed the suspects as a group prior to the interview, and firmly expressed the view that solicitors who advised their clients not to attend police stations for the purposes of ongoing police enquiries were obstructing police in their duties. He did not deny a suggestion put to him to the effect that he had told the group that he could put their solicitors in jail for interfering with police work, and I am quite satisfied from his answers in cross examination that this is what he in fact told the group.

48. I am satisfied from Inspector Balaga’s evidence that those that the Public Solicitors’ Office were seeking to represent included Frank Firimolea. I am also satisfied that the Public Solicitors’ Office was not advised of when the interviews on 24 October 2006 were to take place.

49. In the result the interviews, including that of Frank Firimolea, proceeded in the absence of any legal representation. The evidence of PC Kalola was that Frank Firimolea was not asked if he had a lawyer or wanted a lawyer present at the interview. Nor was he asked if he wanted an independent adult or guardian to be present.

50. The defence contended that the evidence as a whole pointed to the police deliberately not advising the Public Solicitors’ Office as to the time of the interview on 24 October 2006 so as to deprive the suspects of the opportunity of taking legal advice or having legal representation. I do not consider that this alleged deceit is established by the evidence.

51. However, I consider that Inspector Balaga’s address to the group prior to the interviews about being entitled to imprison the lawyers for obstructing police work undermined the caution that was subsequently given to Frank Firimolea during the interview. It raises the possibility that the accused may have felt that the police were right and the lawyers wrong, and therefore that there was an element of compulsion to cooperate with the police in providing answers to their questions notwithstanding the formal caution. In coming to this conclusion, I have not overlooked Inspector Balaga’ s evidence that when addressing this group he sought to draw a distinction between what he perceived to be an obligation on suspects to attend police stations to assist in police enquiries and a right to silence when questions are actually asked. Even if that distinction was made, it is clear that the overriding message he was delivering to the group was that he would not tolerate what he perceived to be wrongful interference by lawyers, and that this message may have overshadowed in the minds of the listeners the distinction between an obligation to attend police stations and a subsequent right to silence.

52. For all these reasons I am not satisfied to the requisite standard that in the circumstances outlined the Crown has established that the interview was given voluntarily. It will be excluded from the evidence.

C. Jimmy Rikiloni

Interview 2 October 2006 – VDP7

53. This interview took place on 2 October 2006, the accused Jimmy Rikiloni having been arrested and placed in custody on the morning of 1 October 2006. The interview was conducted by PC Aike, and the witnessing officer was PC Kanai.

54. The accused was cautioned at any early part of the interview in accordance with the Judges Rules. When asked whether he understood the caution, he answered "yea". Even though the accused was in fact only 14 years old at the time, I am satisfied from all the evidence that the statement he gave was voluntary.

55. It was contended that the interview ought to be excluded on the grounds that it was unfairly obtained. These grounds included the assertion that there was no offer of an independent adult or guardian to be present during the interview, and the assertion that no offer of access to a lawyer was offered or provided prior to or during the interview.

56. The evidence of PC Aike on the question of a parent or guardian being present was that prior to the interview police officers had searched for the accused parents at Burns Creek, but returned reporting that they had been unsuccessful in those attempts. He could not remember the names of the officers who had conducted that search, and he had been unable to locate his relevant notebook.

57. PC Kanai, the witnessing officer, gave evidence that it was he and PC Aike (the officer who conducted the interview) who prior to the interview had located a parent but found that parent uncooperative.

58. I consider PC Kanai to be mistaken in his recollection that he attempted to locate J. Rikiloni’s parents before the interview, and in his recollection that he did locate one parent who was then uncooperative. Before these assertions in Court, he had already given evidence that it was during the interview that he first learnt that J. Rikiloni was a juvenile – if so, he would not have known prior to that time to search for a parent. PC Kanai insisted that his police notebook for that period corroborated his assertions, but under closer scrutiny during cross examination it became apparent that the entry he relied on was in relation to a totally unrelated matter. Furthermore, he stated that it was PC Aike who accompanied him on that search, whereas PC Aike said he did not go. I am not persuaded that any such search took place.

59. I find accordingly that there was no attempt to locate parents prior to the interview, and that the accused was not asked whether wished to proceed with the interview in the absence of an independent person or parent.

60. As to whether or not the accused was given the opportunity to seek legal advice prior to the interview or to have a lawyer present, PC Kanai’s evidence was that he made no arrangements for the accused to see a lawyer. PC Aike’s evidence was to similar effect. Nor was there any reference in the interview itself to the accused being asked whether he wished to consult a lawyer. I find that the accused was not asked either prior to or during the interview whether or not he wished to consult a lawyer.

61. It is also relevant to consider this accused’s level of education. In an interview conducted with the accused the next day, 3 October 2006, when asked if he attended school the English translation of the accused’s reply is "I only went as far as class four (4) but do not attend school any more". The evidence of PC Aike in relation to the interview on the preceding day is that he did not ask the accused as to his level of education.

62. The situation, then, is that the police were dealing with a 14 year old of very limited education who was in custody. No attempts were made to locate a parent or guardian prior to the interview, nor was the accused asked whether he wished a parent or guardian or other independent adult to be present during the interview. In addition, there was no enquiry made of the accused either prior to or during the interview as to whether he wished to consult a lawyer. I consider the circumstances were such that it would be unfair to admit the interview into evidence. I exclude it.

Interview 3 October 2006 – VDP8

63. This interview took place on 3 October 2006. It was conducted by Detective Sergeant Taro, and the witnessing officer was PC Maneleba.

64. At an early stage in the interview the accused was given a caution in the appropriate form, and when asked whether he understood it he answered in the affirmative. While the accused had by that time spent two days in police custody, I am satisfied that the statement he gave on 3 October was voluntary.

65. Turning to the question of fairness, the record of interview show that it commenced at 12.35 pm. The agreed facts are that the accused’s parents called at the police watch house at 8.25 am that morning to bring the accused food. Detective Sergeant Taro gave evidence of having organised for J. Rikiloni to spend some time with his parents. When asked in Court whether she was aware of any police practice that required notice to make any special arrangements when juveniles were interviewed, DS Taro’s answer was that she had overheard J. Rikiloni’s mother saying to her son while eating his food "that police is doing their job and you have to explain your side in the allegations that were reported against you". I am not convinced that DS Taro had an accurate recollection of words to this effect being spoken. Her notebook on the relevant period was missing, so there was no corroboration as to this assertion.

66. Of significance is that there is no evidence of DS Taro or the witnessing officer asking the accused whether he wished his parents or some other independent adult to be present for the interview, or whether he was happy to continue without them. I find that no such offer was made and that no question was asked of the accused as to this.

67. It was common ground that no lawyer was present during the interview. On the question as to whether the accused was given access to legal advice prior to the interview, DS Taro’s evidence was that he did have that access. Her evidence was that prior to the interview the accused had spoken to a lawyer. DS Taro could not recall whether that was a meeting in person or over the phone. She contended that she had made an entry in her notebook as to that access, but that her notebook was missing. The witnessing officer PC Maneleba gave evidence to the effect that prior to the interview DS Taro had arranged for the accused to speak with his lawyer over the phone. However, he had lost his police notebook for the relevant period, so could not corroborate these assertions.

68. I am not satisfied that the accused did in fact have access to legal advice prior to the interview. The fact that DS Taro could not remember whether the access which she said took place was by a face to face meeting or over the phone demonstrates that she had no independent recollection of the matter. As to PC Maneleba’s assertions that access to a lawyer was given, he was only the witnessing officer and did not make any such arrangements himself. He was not, then, in a position to know first hand what if any arrangements may have been made, and gave no evidence as to what if anything DS Taro told him about this. Further he had no notes to verify his assertions.

69. In addition, there is nothing in the interview itself as to the accused having had access to a lawyer, and no questions were asked of him at that interview as to whether he wished to take legal advice.

70. In the circumstances, I find that the accused was not offered the opportunity of obtaining legal advice either prior to or at any time during the interview.

71. Combining the factors of age, lack of opportunity to have a parent or independent adult present, and a failure to offer the accused the opportunity to take legal advice, I consider it would be unfair to admit the record of interview into evidence. I therefore exclude it.

Interview 24 October 2006 – VDP9

72. This related to an interview with the accused on a matter other than the SDA incident. The Crown in its submissions says that the interview was tendered for the purposes of the voir dire hearings only, and that it is not intended to be adduced as incriminating evidence at any trial.

73. It is therefore not necessary for me to rule on its admissibility at trial.

Interview 14 November 2006 – VDP10
Statement 14 November 2006 – VDP11

74. The interview of 14 November 2006 was conducted by PC Salopuka, and the witnessing officer was PC Ramo.

75. Upon examination of the original document which was said to constitute the record of interview, it became apparent that changes had been made to the numbering of the questions and answers on the last page. If can be seen from visual inspection that the questions and answers that had been numbered 58 to 63 had been whited over with correction fluid and renumbered as questions 67 to 72. Also, it was apparent that the number of that last page had been changed with the use of correction fluid from 11 to 13.

76. PC Salopuka was cross-examined as to this and said that he had made the changes to the numbering of the questions because there had been a mistake in that numbering. He said that the page number had been changed from 11 to 13 because he had made a mistake originally in counting the number of pages.

77. PC Salopuka denied that the two pages of the record of interview preceding the final page (renumbered page 13) had been inserted after the interview had concluded. His explanation for those two pages being of lighter paper than the other pages and having different coloured lines was that he must have obtained those pages from a different notepad.

78. He disagreed that the last questions on the page immediately preceding the two pages of lighter paper linked naturally with the questions on the very last page (the renumbered page 13).

79. PC Ramo, the witnessing officer, gave quite different evidence. His evidence was that the two pages immediately preceding the final page has been inserted by PC Salopuka at a time after the conclusion of the interview. He stated that in the interview which he witnessed the accused denied any involvement in the alleged rape. He gave evidence that after the interview concluded at about 2 pm he then showed the accused a photo board, and then at about 2.30 pm took a statement from the accused as to his photo board identification (VDP11). His evidence was to the effect that it was at a time after that that PC Salopuka brought the two additional pages of questioning of the accused for him to sign. His evidence was to the effect that those two pages were the result of further questioning of the accused by PC Salopuka and another officer, and that those were the pages that were then inserted into the original record of interview.

80. I note that those two pages contain the only admissions by the accused as to involvement in the alleged rape. This can be contrasted with all the relevant answers contained in the other pages, which deny any involvement in the rape.

81. I found PC Salopuka’s evidence as to the two pages in question quite unconvincing. By contrast, I consider PC Ramo gave straightforward evidence which tied in with the obvious changes which had been made to the record. I am satisfied from PC Ramo’s evidence that the two pages (numbered 11 and 12) preceding the final page of the interview were inserted after the original interview had concluded, and were the result of a further and subsequent interview of the accused by PC Salopuka and another officer. I find that the record of the original interview, in which the accused denied his involvement in the alleged rape, consisted of pages 1 to 10 of the document together with the original page 11 (subsequently renumbered page 13). I find that it was after the statement relating to the photo board was taken by PC Ramo at about 2.30 pm that day that the accused was reinterviewed by PC Salopuka and another officer, and that pages 11 and 12 of the purported original record of interview represent in fact the record of that subsequent interview.

82. I note that there was no caution recorded as having been given in that second and separate interview. The admissions contained in it (i.e. in the pages numbered 11 and 12) cannot therefore be said to have been made voluntarily. They are inadmissible. Further, what was represented to the Court as being one single interview recorded on 13 pages has in fact been found to have been two separate interviews, one of which contained no caution at all. It would be grossly unfair to the accused to permit any part of this document so misrepresented to be tendered in evidence. I therefore exercise my discretion to exclude from evidence the entire document (i.e. all 13 pages) dated 14 November 2006 entitled ‘Record of Interview’.

83. As to the statement taken from the accused by PC Ramo at about 2.30 pm on 14 November 2006 (VDP11) and relating to the photo board identification, this was taken at a time when the accused was a suspect and was separate and distinct from the record of interview which had concluded at about 2 pm that day. It contained no caution and there was no evidence that the accused had in fact been cautioned. In these circumstances I am not satisfied that it was made voluntarily and I therefore exclude it from the evidence.

BY THE COURT

Justice IDR Cameron