Regina v Hence [2010] SBHC 59; HCSI-CRC 315 of 2004 (19 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

-v-

WILLIAM HENCE, GEDDILY ISA
AND CARRADINE PITAKAKA

Dates of Hearing: 5, 6, 9 to 13, 16 August 2010
Date of Decision: 19 August 2010

Mr. Coates and Ms. Walenea for the Crown
Mr. Cavanagh and Mr.Ghemu for William Hence
Ms. Waqavonovono and Mr. Orisi for Geddily Isa
Mr. Barlow and Mr. Kesaka for Carradine Pitakaka

RULINGS ON VOIR DIRE IN RELATION TO
INTERVIEWS OF THE ACCUSED WILLIAM HENCE
AND GEDDILY ISA

Cameron PJ:

1	Both the accused William Hence and Geddily Isa challenge the admissibility of records of interview conducted by the police and in which they made various admissions.
2	Both accused gave evidence at the voir dire hearing, and it was argued that the interviews were neither voluntary nor fair.
	Background:
3	On 13 August 2003 Harold Keke, the leader of the militant group known as the Guadalcanal Liberation Front (GLF) during the period of the ethnic tension, surrendered to police. This was done on the weathercoast of Guadalcanal, where he had been based. The surrender was attended by Superintendent Anthony Stafford, who was part of Ramsi, and who was in charge of national investigations into crimes committed during the ethnic tension. A few days prior to the surrender, the GLF had surrendered their weapons to the authorities. The security situation on the weathercoast was at that time 'tense and fragile' (Superintendent Anthony Stafford's evidence), with the GLF members having restricted movement because of the threat of hostility against them by pro-government factions.
4	Following the surrender of Harold Keke, Superintendent Stafford held a series of meetings, at a village known as Kolina on the weathercoast, with ex members of the GLF. Those meetings were held on 4, 10 and 18 September 2003. The purpose of the meetings, in broad terms, was to encourage the ex GLF members to follow the lead of Harold Keke and surrender themselves to the police should they have been involved in the commission of crimes during the hostilities.
5	At the first meeting on 4 September, Superintendent Stafford and Officer Booy met with Chronicle Kiri (Harold Keke's second in command) and Elijah Panatagao on the grounds of the Kolina school, regarded as a neutral zone. The meeting had been requested by Chronicle Kiri. The discussion centred around the task of Ramsi to investigate crimes, and Chronicle Kiri was asked by Superintendent Stafford to provide him with written stories about the crimes committed by the GLF. No written record of the meeting was made.
6	At the second meeting on 10 September, Superintendent Stafford and Officer Booy, accompanied by another officer James Toaki, again met with Chronicle Kiri and Elijah Panatagao at the Kolina school. Superintendent Stafford was given some written reports by Chronicle Kiri about incidents on the weathercoast, those were discussed, and it was agreed that another meeting be held at a later date at which Superintendent Stafford could speak to as many ex GLF members as possible about the investigation. No written record of that meeting was made.
7	The third meeting was on 18 September, at which time Superintendent Stafford addressed a large group of supposedly ex GLF members at the Kolina school grounds. A register of those who attended was signed by 84 people. At the meeting, Superintendent Stafford advised those gathered about the investigation, that he wished to speak to them about their involvement in crimes on the weathercoast, that Ramsi would identify people that they wished to speak to, and that those people would be asked to return to Kolina on later dates when they would be interviewed by police officers provided that they agreed. Superintendent Stafford advised that if as a result of that process it was disclosed that persons were involved in serious crimes, then they would be arrested and transported back to Honiara for processing in the courts. There was no record made of that meeting either.
8	That same day Superintendent Stafford and Officer Booy spoke to William Hence under a mango tree on the school grounds. He was advised that the investigators would return on 25 September and conduct a brief interview with him, and should he at that time disclose his involvement in any serious crime he would be arrested and taken back to Honiara by helicopter to go before the courts. He was asked to go back to his village, and then return to Kolina on 25 September if he wished to engage in the process. It was made known to the officers that William Hence had family in Honiara but not the weathercoast, and that if he returned to Honiara arrangements would be made for him to see his family.
9	At the meeting under the mango tree, it was Officer Booy's evidence that William Hence was advised by him that if he disclosed his involvement in serious crimes including murder and was subsequently convicted, then he would spend the rest of his life in jail. However, Superintendent Stafford could not remember that being said. William Hence also denied it was said. No written record was made of the meeting, and I find that Officer Booy was mistaken in his recollections and that such statement was never made.
10	There is no evidence that William Hence knew what was discussed at the meetings on 4 and 10 September, or was present when the group as a whole was spoken to by Superintendent Stafford on 18 September.
11	As to Geddily Isa, he was at Kolina school at the time of the first meeting on 4 September, but he did not participate in that. He stated and I accept that he was not present when the second meeting occurred on 10 September, but he was present for the big meeting on 18 September. However, what was spoken by Superintendent Stafford was not interpreted verbatim, and I accept that Geddily Isa, with a very limited understanding of English, may not have had a proper understanding of what was going on.
12	Superintendent Stafford also gave evidence that he spoke briefly to Geddily Isa on 18 September, but could not remember the details of the conversation. On 25 September, Superintendent Stafford advised Chronicle Kiri that one of the persons he wished to interview on 2 October 2003 was Geddily Isa.
13	It is against that background that the interviews of the two accused took place.
	William Hence:
14	His first interview took place on 25 September 2003, on the beach at Kolina. No lawyer was offered or was available. It was a tape recorded interview conducted by Station Sergeant Natalie Scott from the Participating Police Force (PPF). Assisting her was Station Sergeant Emily Ferns. Sergeant Scott was an experienced police officer from Australia, who had been brought to Solomon Islands by Ramsi to investigate crimes on the weathercoast. These two officers had flown in that day by helicopter from Honiara specifically to interview William Hence (several other interviews were being conducted by other officers that day as well).
15	The interview was conducted in English, as it was apparent to Officer Scott (and I accept as a fact) that William Hence had a good comprehension of simple English. That is, he could speak and understand basic English.
16	At that time I find that William Hence was a suspect in relation to crimes committed by the GLF on the weathercoast. He had been selected for interview by the PPF from a large group of people, precisely for the reason that he was suspected of having been involved in the commission of such crimes. There was no other reason for the PPF tasking two officers to conduct a recorded interview with him. The evidence was that the PPF in advance of the interview had gained certain information from Chronicle Kiri as to the commission of crimes, and that as a result of that information William Hence was one of the persons the police sought to interview. Sergeant Scott admitted in cross-examination that William Hence was a suspect at the time of the interview, and consistently with that she gave a caution (though incomplete) to William Hence shortly after the commencement of the interview. I note that there was no disclosure by the Crown at the voir dire hearing of the precise information the police already had as to William Hence's involvement, so the Crown is hardly in a position now to say that such evidence was not strong (as was contended) and therefore he ought not to have been regarded as a suspect.
17	The caution given to William Hence was first given at questions 20 and 21 of the transcript of the interview. The relevant exchange is as follows: "Q20 Okay. But before we ask you some questions about that, you have to understand that you don't have to talk to us if you don't want to. Do you understand that? A. Come again? Q21 If you don't want to talk to us, if you don't want to answer our questions, that's okay. You don't have to. You just talk if you want to. No-one can force you to talk."
18	What this omits is the second part of the caution contained in the Judges' Rules, which is to the effect that anything the person does say may be used in evidence against him in a Court. The interview itself commenced at 8.53 am and concluded at 9.43 am, so was of 50 minutes duration. The transcript records that 357 questions were asked. In the interview and following the incomplete caution, William Hence was asked about his involvement in crimes unrelated to the present case. His involvement in the alleged murder of Brother Sado, the victim in this case, was not discussed.
19	Sergeant Scott said in evidence that the reason why she did not provide William Hence with the second part of the caution was because she forgot.
20	The second part of the caution is of course the advice to a suspect as to the consequences of not exercising the right to remain silent. That is, that answers given may be used in Court against the suspect. It is an integral part of the advice to a suspect that he has a right to remain silent, because he can only make an informed decision as to whether or not he will exercise that right and remain silent if he is told what the consequences of not doing so are. Without that advice, the risk is that the choice of whether or not to speak will be an uninformed one made without a complete understanding of that person's rights.
21	I am surprised that an officer of the seniority of Sergeant Scott failed to administer the second part of the caution. There was ample opportunity to do so.
22	The omission to provide the advice as to rights contained in the second part of the caution means I cannot be satisfied that the interview was voluntary, given that the evidence of William Hence was to the effect that he did not understand his rights. I therefore rule that interview to be inadmissible for the purposes of this case.
23	The second interview of William Hence was in Honiara on 26 September 2003. This interview was to have proceeded on 25 September 2003. However, after William Hence arrived in Honiara the previous day he met with family members and then became distressed, so the interview was postponed to 26 September 2003. It is common ground that he had been arrested on 25 September 2003 after his meeting with his family, and spent the night in the police cells. The arrest was in relation to matters unrelated to the present case, but which were the subject of the interview on 25 September.
24	The interview with William Hence on 26 September 2003 was again recorded on tape, and again was conducted by Sergeant Natalie Scott. Assisting was Sergeant Paul Green, and Sergeant James Toaki also attended to act as an interpreter as required. It was conducted in English, although some parts were interpreted into pidgin.
25	The interview was, in effect, a continuation of the previous day's interview, which had to be concluded early because of constraints of time relating to the helicopter. At the conclusion of the Kolina interview, William Hence was asked 'Can we keep talking to you in Honiara?' to which he answered 'okay' (q. 353 of the transcript of interview).
26	The second interview commenced at 8.53 am. At an early point of the interview, Sergeant Scott advised William Hence that the interview would be recorded, that those tapes may be played in court, and that a judge or magistrate might listen to what was said (questions 9 to 11 in transcript of interview). This is, in effect, the second part of the caution contained in the Judges Rules.
27	Surprisingly, it was not until question 68 that the first part of the caution, namely the right to remain silent, was advised to the accused (q. 68 transcript).
28	While the questioning prior to question 68 had been general and not related to specific crimes, it included references to Harold Keke, during the period he was on the weathercoast. Significantly, as I have said, the second interview followed on from the previous day's interview which had lasted 50 minutes and during which William Hence's knowledge of GLF crimes on the weathercoast, excluding the Brother Sado matter, had been explored. Indeed, on the basis of that interview he had been arrested in Honiara later that day and was in custody.
29	Accordingly, there was every reason for Sergeant Natalie Scott, at the commencement of the second interview, to provide a complete caution to William Hence. She did not do so, and this time gave only the second part of the caution to William Hence, omitting altogether the advice as to the right to remain silent.
30	Thus the position is that in the first interview on 25 September 2003 Sergeant Scott only administered the first part of the caution, and in the next interview the following day (after the accused's arrest) only the second part of the caution was administered (until q. 68, when a full caution was given).
31	By the time the full caution was given at the second interview (q. 68), it was well into the interview. At that point, in my view, there was a greater likelihood that the accused would agree to a continuation of the interview, as the interview was well underway and not to continue may raise the question as to why he was prepared to speak in the first place. In short, there would be a greater pressure to continue with something that had already been started. Whether the failure to provide a full caution at the outset was an oversight on the part of the police officer or not is not known. I make no findings in this respect. Irrespective of that, the accused William Hence was not advised of his right to silence at the commencement of the interview, notwithstanding that he was already under arrest in respect of matters about which the police wished to speak to him further about.
32	It is true that the question of William Hence's involvement in the Brother Sado matter had not been discussed prior to William Hence receiving a full caution. However, I consider that the scene had been set for William Hence to talk freely to the police without a full caution being administered at the outset, increasing the likelihood of the accused not exercising the right to silence when that was referred to later in the interview. In my view the failure to advise of basic rights at the outset tainted the entire interview, in the way I have explained.
33	I turn to the question of a lawyer. It is common ground that William Hence, when asked by police if he wanted a lawyer, told them that he wished a lawyer to represent him in court. The relevant exchange is contained in questions 78 to 84 of the transcript, as follows:
		"Q78.		Okay. Now William do you agree that before I turned these tapes on we talked about you talking to a lawyer?
		A.		Yes.
		Q79.		Okay. And do you remember what you told me about the lawyer?
		A.		Yes.
		Q80.		Can you tell me again?
		A.		I want a lawyer to represent me in the Court.
		Q81		Okay, alright. And that's fine, we will make sure you have a lawyer. What about now? Do you want to talk to a lawyer now or do you want to wait until you get to Court?
		A.		I speaking to you?
		Q82.		Yes.
		A.		And the Court ... a lawyer will wait for me at the Court.
		Q83.		Okay so you're happy to talk to me here now?
		A.		Yes.
		Q84.		And you'll talk to a lawyer when you get to Court?
		A.		Yes."
34	The evidence of William Hence on this point was that he did not understand what a lawyer did. The submission of the defence is that the interview was designed "to elicit as much information as possible without being inflicted with the burden of an accused who may have actually understood his rights". In other words, that it was not sufficient for the police merely to confirm with the accused that he only wanted a lawyer for Court.
35	I accept from the evidence of the accused that he had little understanding of what a lawyer actually did. To an extent, this is reflected in his response that he wanted a lawyer for court. That was an indication from which it could reasonably be inferred that before he faced Court he wanted advice from a lawyer. What it also may have signalled, depending on the level of education of the person and the overall circumstances which prevailed, is a lack of understanding as to the role lawyers play in advising persons of their rights in interviews with the police (including the right not to incriminate oneself). William Hence, though he had been to High School in Honiara for 2 years, was known to police as being a person of limited education who had spent a number of years, immediately prior to his interviews, on the weathercoast. He clearly wanted a lawyer's advice, and by his answers there was every reason for the police to have concluded that the accused appeared to be under the misapprehension that a lawyer's role was limited to that of the courtroom. There was a clear indication from the exchange that the accused did not appreciate that by continuing to talk to police he may incriminate himself to such an extent that a lawyer could do little for him when the matter finally came before the Court. In these circumstances, it was not sufficient for police to simply have him confirm that he was happy to talk to them and would talk to a lawyer at Court. It would have been quite simple for the police to explain that lawyers were also available to give advice to suspects, including advice as to their rights, at the time they are requested to conduct police interviews, and to have offered to suspend the interview for that purpose. The police chose not to do so, thereby not removing the doubt as to whether the accused fully understood that he was able to obtain such advice at an earlier and more effective stage.
36	I note that William Hence's evidence was to the effect that he did not understand that by talking to the police he was likely to incriminate himself.
37	I am conscious of the fact that the accused was properly cautioned immediately prior to being questioned about his involvement in the Brother Sado matter (questions 277 to 279 and the transcript). However, for the reasons given, that subsequent caution does not cure the deficiencies of process I have already referred to, which I consider amount to the accused not being properly advised as to his rights and therefore a lack of voluntariness in the making of the interview. Thus the Crown has not discharged its burden of proving the voluntariness of the interview beyond reasonable doubt, and I exclude it.
38	For the same reasons I consider the interview to be unfair on the balance of probabilities, and exclude it on that basis as well.
	Geddily Isa:
39	The accused Geddily Isa was first interviewed at Kolina on 2 October 2003. No lawyer was offered or was available. He was interviewed by Detective Senior Sergeant Cushla O'Shea of the New Zealand Police Force, but at the time part of the PPF investigating crime on the weathercoast. Assisting her was Detective Constable Saxson Sai. The interview was conducted in English, with D.C. Sai interpreting the questions into pidgin English and/or the accused's local language, Koo. It is common ground that the accused did not have a good understanding of English. The interview was recorded on tapes. Officer Cushla O'Shea had flown in by helicopter that day, specifically to conduct this interview.
40	For the same reasons I gave in respect of the accused William Hence, I consider that Geddily Isa was a suspect at the time of the interview. Consistently with that, the accused was cautioned (question 10 of relevant transcript) first in English (though this caution was incomplete), and then in pidgin, followed by language. The pidgin and language versions were complete, though the accused was not asked to explain what the caution meant to him. I consider this interview was given voluntarily and do not consider it to have been unfair. I rule it admissible in the trial.
41	The second interview was back in Honiara on the next day, 3 October 2003. At a relatively early part of the interview, and after only a few general questions, followed by an allegation that the accused was involved in a murder at Marasa, a full caution was given both in pidgin and in language (question 10 of the relevant transcript).
42	Thereafter, the interview continued and the accused was extensively questioned about his involvement in crimes on the weathercoast unrelated to the Brother Sado murder. Those offences had been the subject of the previous day's interview at Kolina, and the Brother Sado murder had not been raised at all during that previous interview.
43	A few questions before the subject of the Brother Sado murder was first raised, G. Isa was cautioned again in the following terms:
		"Q194.
		O'SHEA:			Okay. Just remind you of your rights again as we are now on the fifth tape, that if you wish not to make a statement at anytime or if you wish to speak to your lawyer privately you can do so, and whatever statement you do give to me is recorded on this machine and may be used as evidence in Court.
		SAI:			Since the starting of our interview today we already told you of your rights, that if you wish to make a statement at anytime you may do so and if you wish to speak with your lawyer privately you can do so. Whatever statement you do give to me be recorded on this tape and may be used as evidence in Court. Do you understand it?
		ISA:			Yes.
		SAI:			Okay."
44	Question 194 was initially given in English by DS O'Shea, and was then interpreted into pidgin (or language) by DC Sai. It is immediately apparent that the caution as given to the accused by S. Sai in pidgin (or language) differs from the English version given by DS O'Shea in a material respect. That is, it omits altogether the first part of the caution, namely the right to silence. Only four questions later, at q. 198, the accused is asked about what he can tell police about the murder of Brother Sado. The following exchange takes place, being questions 198 and 199 of the relevant transcript of evidence:
			"Q198. O'SHEA:			Can you tell me anything about the murder or Brother Nathaniel Sado between the fifteenth and twenty eighth of February this year?
			SAI:			Another question is about the killing of Brother Sando.
			O'SHEA:			Sado. S A D O.
			SAI:			Brother Sado between fifteenth and twenty February this year, these are only questions. Anything that you can tell us about the killing or not.
			ISA:			Okay, I just want to ask questions, did she already received any report about the incident?
			SAI:			He said he just want to ask question about this case about Brother Sado.
			O'SHEA:			Yeah.
			SAI:			Is there any case reported to you?
			Q199.
			O'SHEA:			I have information but I want to hear your information. I want – I would like you to tell me what you know. If you were there and what you saw.
			SAI:			She heard the story but she want to question you. Did you have any story to tell us or not. Did you were there during that time or not. That's the two questions we are only asking about. If you were there then you have to tell stories what happen of if you said you were not there then you need not to say anything, just like the two questions we already asked you about.
			ISA:			The killing of Sado its true that I was there.
			SAI:			Its true that he was there when Sando was murdered."
45	It is clear from this exchange that before G. Isa was prepared to answer any questions about the Brother Sado murder, he wanted to know from DS O'Shea whether she had already in her possession any information relating to the incident. To this she responded "I have information but I want to hear your information". DS O'Shea admitted in cross-examination that at that time she had in her possession the report from the police about the incident, but nothing about G. Isa being involved in the case.
46	While the answer DS O'Shea gave the accused was factually correct in that she did indeed have information, it must have been reasonably apparent to the officer that the concern of the accused was whether the police had any information implicating him in the matter. Why else would the accused be asking about what information she had as to the matter? In then answering 'I have information but I want to hear your information' there was a risk that a false impression was created that the officer had prior knowledge as to his involvement, so encouraging the accused to admit his part in the offending. This risk was made greater by the way DC S. Sai then interpreted what DS O'Shea had said, using the words (not used by DS O'Shea) "She heard the story but she want to question you?" In the context of the discussion, that implied that the police had prior knowledge of his involvement in the matter. To an extent the false impression created is reflected in the admission then given, where the accused says "The killing of Sado its true that I was there'. Consistently with that, Geddily Isa gave evidence about the questioning of DC O'Shea of him in that exchange, stating "... how she was questioning me it looks like she heard everything about me."
47	It is also to be noted from the exchange that DC S. Sai, immediately before that admission, said to the accused the following (in pidgin or language): "Did you have any story to tell us not? Did you were there during the time or not? That is the two questions we're only asking about. If you were there then you have to tell stories what happen of if you said you were not there then you need not to say anything, just like the two questions we already asked you about."
48	I focus on the extract where DC S. Sai states, "If you were there then you have to tell stories what happen". DC Sai's explanation in his evidence (admitted by consent) that English cannot be interpreted word for word into pidgin or language does not change the meaning of "If you were there you have to tell stories what happen." It was not suggested to me by the Crown that such phrase was capable of having a meaning other than its literal one, namely that if he was there then there was no choice but to tell the police what happened. When one considers this with the omission to advise as to the right to remain silent in the interpreted version of question 194, and the false impression created of prior knowledge by police as to his involvement, the voluntariness of the answers is called into question. I note Geddily Isa's evidence to the effect that he considered he had been 'tricked' into answering questions.
49	I note that the day before the interview, in the afternoon of 2 October 2003 at the Honiara Police Station, G. Isa was given the opportunity to speak in private with the Public Solicitor, Mr. Ken Averre. I accept from the evidence of DS O'Shea that the discussion lasted about 11 minutes, and that the police placed no time limit on the duration of the consultation.
50	During the interview on the next day, 3 October 2003, Mr. Averre, arrived part way through, and although he then remained until its conclusion he did not participate in the sense of speaking directly to G. Isa. I also note that at the stage Mr Averre joined the interview, no questions had been put to the accused about the Brother Sado murder. The interview was not suspended at the time Mr. Averre arrived, the accused indicating that he was happy to continue to speak without interruption. I do not consider that the mere presence of Mr. Averre in the room for the remainder of the interview, without taking any active part, in any way lessens the impact of the deficiencies which I have identified. Nor does the full caution given at question 10 satisfy me that the deficient caution given some 3 hours later in the same interview (as q.194 as interpreted) and immediately before the Brother Sado murder was raised, can be safely overlooked. As stated, not only was there no reference to a right to silence, but five questions later and immediately prior to the accused admitting that he was there when Brother Sado was murdered, he was told "If you were there then you have to tell stories what happen."
51	For the reasons given I consider that the interview on 3 October 2003 was not given voluntarily. That is, that the Crown has failed to establish, beyond reasonable doubt, that it was given voluntarily. For the same reasons I consider, on the balance of probabilities, that the interview was unfair. On these grounds I rule the interview to be inadmissible at trial.

BY THE COURT

Justice IDR Cameron
Puisne Judge