Regina v Loea - Ruling [2010] SBHC 112; HCSI-CRC 366 of 2009 (6 October 2010)

High Court of Solomon Islands
(Palmer CJ.)
Criminal Case Number 366 of 2009

Regina

v.

Selwyn Loea

Hearing: 4 October 2010 (voir dire)
Ruling: 6 October 2010

R. Iomea for the Crown
E. Cade for the Defendant

Palmer CJ.:

The defendant was charged with the offence of murder that on 25 December 2008 at Sulione Village at North Malaita, he murdered Junior Solo Loea. He was arraigned on 4 October and entered a not guilty plea. On the morning of 6 October 2010, the charge of murder was withdrawn and a lesser charge of manslaughter filed. On his re-arraignment he entered a plea of guilty. Note all these occurred after the voir dire hearing in the original charge of murder had been held. This ruling is in respect of that voir dire application.

One of the materials which Prosecution was going to rely on was the statement of the defendant obtained under caution dated 30 December 2008, and an utterance or admission made by him after he had been charged.

The first objection related to the answers of the defendant to questions 18 and 35 in the statement.

Question 18 reads: "Iu garem eni sick wea mitufala Detective Constable Walter Ereoli need for mitufala save bifoa iumi go het?"

Answer: "Nomoa, distaem nomoa nao hed blong mi no stret afta mi duim samting ia."

Question 35 reads: "Selwyn Loea, iu laek se eniting afta mi ridim kam question an ansa long record blong interview ia?"

Answer: "Ia, long question namba 18 an ansa mi givim hem sapos of olsem, taem mi no duim samting lo pikinini ia, het blo mi sick olsem hed soa. Taem mi no holem bodi blong pikinini ia yet, mi stat sick, sick nao. Dat woman ia tekem kam nao pikinini long mi."

The defence objected the admissibility of those parts of the statement on a number of grounds. In respect of question 18 and the answer, Mr. Cade objected its admissibility on the ground that it was made before any caution was given and therefore should be excluded.

The objection in respect of question 35 and its answer was that it was elicited after the defendant had expressed his wish to see a lawyer and therefore it was unfair and prejudicial.

The Law

The law on admissibility of statements is that not only must it be relevant but it must be voluntary[1]. It is relevant if it amounts to an admission or capable of being regarded as an admission, of guilt or of a fact relevant to proof of guilt[2]. The Judge needs to be satisfied on the balance of probabilities that this condition has been met before he admits it as evidence. This means substantially that it has been made in the exercise of his free choice[3]. If he speaks because his will has been overborne, his statement cannot be received in evidence. If he speaks because of duress, intimidation, threats, force, persistent importunity, or sustained or undue insistence or pressure it cannot be voluntary. If it is preceded by an inducement held out by a person in authority it is not voluntary. In such situations the Prosecution is required to prove beyond reasonable doubt that the statement has been made voluntarily.

In an effort to assist police officers act fairly and properly when interviewing suspects, the Judge's Rules were provided as guidelines. One of those rules relate to the giving of cautions. That rule provides that when a police officer has strong evidence or sufficient evidence that a person has committed an offence he shall warn him to be careful of what he says. This is often referred to as the right to remain silent or the right not to incriminate oneself.

It is important to appreciate that these rules do not have the force of law; they are mere administrative directions, the observance of which tends to the fair administration of justice. This is why police officers should seek to adhere to them, for any statement obtained contrary to the spirit of the rules may be rejected as evidence by the court[4].

A failure to adhere to the rules will not automatically bar the admissibility of the statement rather render it liable to be excluded by the trial judge in the exercise of his discretion[5].

Once the court has accepted that it is voluntary it may then consider whether it should be excluded on discretionary grounds[6] because it is unfair or against public policy to do so.

Q. 18 and A. 18

Question 18 is a standard preliminary question normally asked in police statements. It is usually asked with the view to ascertaining the mental, physical and general well being of the accused at the start of an interview, for if he/she is suffering from some form of unsoundness of mind or psychiatric disorder, that may go to the evidentiary value of the confession, and it may in certain circumstances deprive it completely of all evidentiary value[7]. So even if it may be admissible as having been voluntarily made, the quality of the evidence may be such that it may be require that it be excluded as unsafe or unsatisfactory[8].

If for instance, he is under the influence of alcohol or drugs, or feeling sick, that too may affect the quality and reliability of the evidence, and the question whether the statement has been made in the exercise of his free will and choice.

The question and answer given in my view is fairly clear. There is nothing to suggest that the response was anything but voluntary. I find nothing unfair, unusual or improper about the question and the manner and way it was asked. After satisfying themselves about the condition of the defendant, the police officers continued with the interview. I rule against the submission of inadmissibility.

Q. 35 and A. 35

It has not been denied that the statement was given voluntarily, rather the court should exercise its discretion and reject it on grounds of unfairness.

The flaw in this submission is in suggesting that because it had been obtained after the accused had indicated that he no longer wished to continue with the interview without the assistance of a lawyer, that it should be rejected.

In R. v. Phan[9] relied on by Mr. Iomea, the New South Wales Court of Criminal Appeal pointed out that:

"There is no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence."

In Kerrie-Anne Clarke[10], Hunt CJ noted that: "... questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence."

The important point to note about such questioning is that it must be fair and must not amount to "intimidation, persistent importunity or sustained or undue insistence or pressure"[11]. Of-course, the police should not persist with any further interrogations after the suspect has indicated that he/she does not want to answer further questions[12], although merely because a suspect has indicated a wish not to continue with any further questions, does not render inadmissible answers to further questions which he does answer provided they are fair, proper and otherwise admissible.

Smart J. also made similarly observations in Kerrie-Anne Clarke (ibid):

"It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some question or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities."

First, there is nothing untoward, unfair or improper about the question and the manner and timing it was asked. It was a follow-on question from the point when the accused had said that he no longer wished to continue with the interview without the assistance of a lawyer. At that point of time the interview was in the process of being wound up. The accused was merely being asked to confirm the accuracy of the statement after it had been read back to him. It was a general question about the statement, not anything specific. I quote:

"Selwyn Loea, iu laek se eniting afta mi ridim kam question an ansa long record blong interview ia?"

In English it translates to something like:

"Selwyn Loea, do you wish to say anything in relation to the questions and answers in your record of interview?"

It is important to note there is no suggestion the question asked arises from what would be described as "persistent questioning", for there was none. The case authorities on "persistent questioning" therefore are distinguishable on the facts.

I do accept on the other hand the submission to exclude evidence otherwise admissible, where the questioning crosses the threshold of "persistent questioning" and where it can be said that an officious police officer had allowed his zeal to outrun discretion, or tries to brow-beat or trick the suspect into answering, on the grounds of unlawfulness or unfairness in the manner of its discovery or creation[13].

It is significant that the response of the accused to this general question was specific, directed to an earlier answer that he had made to question 18 and therefore falls squarely within the possibility described by Smart J., where the accused regards a previous answer as wrong and needed correction or explanation. The answer was freely and voluntarily given and not obtained through "persistent questioning", or anything unfair, unlawful or improper in the circumstances of this case.

There is also another important point to note about the answer given to question 35 for it came immediately after the accused had been freshly reminded of the earlier caution. Question 34 is actually in the form of a statement reminding him that the caution given earlier still applied and if he understood that. This in my view would remove any remaining doubt or suggestion of involuntariness. The accused was cognizant of his rights to speak freely or to remain silent when he answered question 35. He chose to answer and I find no cause for its exclusion.

Admission against interest

The last objection relates to the question of an utterance or admission made after the defendant had been charged. This occurred some thirty minutes after the interview had concluded and when the decision to charge the defendant was made. At that point the defendant was asked if he had anything to say to the charge. The Judge's Rules say that at that point of time he should be cautioned about his right to say something or to remain silent. The interviewing officer concedes that he omitted to caution the accused but there is no suggestion that this was deliberate.

The response of the defendant is significant for it amounts to something of an admission but denies that it was intentional.

I note the defendant elected not to give evidence in this voir dire application. I accept therefore that there is no dispute that words to that effect were expressed. The objection is that the admission of that utterance would be unfair in the absence of a caution.

The case authorities however on this point are well established, that further questioning does not necessarily render the statement inadmissible. The circumstances of each case must be looked into to see what is unfair or improper about its discovery or creation. Has unfair pressure been applied? Has any unfair advantage[14] taken of the position of the accused, such as his age, vulnerability, lack of familiarity with the English language and so on?

In the circumstances of this case, I find nothing unfair, unlawful or improper about the manner in which the question was asked. The question asked came in the natural progression of events and there was no hint of any untoward action, improper or unfair pressure or influence applied. I am not satisfied his will was overborne or pressured into responding.

Further, I note that only some thirty minutes earlier the defendant had been reminded of an earlier caution and while it may have related to the record of interview and not the charge, I am not satisfied that the omission resulted in any unfairness against the accused. The time lapse in my view is too short and would be insufficient to dislodge its effect on his mind and memory. I find it would have been still fresh in his mind and that he would still be cognizant of its effect that he was not obliged to say anything to the charge. I am satisfied beyond reasonable doubt the utterance was freely and voluntarily given and rule that it should be admitted as evidence.

The Court.

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^[1] MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512 per Gibbs CJ and Wilson J.
^[2] Grills [1910] HCA 68; (1910) 11 CLR 400; Astill (unreported, Court of Criminal Appeal, NSW, 17 July 1992) at pp 8-13
^[3] McDermott v. The King (1948) 76 CLR 501 per Dixon J at p. 511; see also R. v. Mahoro [2003] SBHC Muria CJ. “...made...in the exercise of a free choice to speak or remain silent.”
^[4] See R. v. Nanago [1996] SBHC 65, quoting R. v. Voisin (1918) 1 KB 531.
^[5] See article by CJ Miller “Silence and Confessions – what are they worth?” CLR, published Jne 1973, p. 343 at p. 344.
^[6] Foster v. The Queen (1993) 67 ALJR 550
^[7] Jackson v. R (1962) 108 CLR 591
^[8] Morris v. R (1987) 163 CLR 454
^[9] [2001] 53 NSWLR 480
^[10] NSWCCA 31 October 1997
^[11] McDermott (1948) 76 CLR 501 at 511
^[12] Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331 - 332
^[13] See R. v. Ireland [1970] HCA 21; [1970] 126 CLR 321 and R. v. Evans (1962) SASR 303
^[14] See comments of Smart J. in Kerrie-Ann Clarke (ibid)