Regina v Buare [2012] SBHC 30; HCSI-CRC 119 of 2010 (15 March 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

DICKSON BUARE, GEORGE BOSA
AND PATTERSON THUGATIA

Date of Hearing: 2nd, 5th, 6th, 7th and 13th March 2012.
Date of Judgment: 15th March 2012.

Mr. Talasasa (DPP) for the Crown.
Mr. Valenitabua and Ms Tesua for the accused (Dickson Buare).

RULING ON VOIR DIRE

Introduction.

1. The accused, Dickson Buare, is one of three persons charged with the murder of Mathew Manegaua ("deceased") at Tanagau village, East Guadalcanal, in the early hours of the morning of the 9th January 2010.
   
2. The Crown had sought to tender into evidence against the accused two confessional statements made to the police in relation to the murder. The first is a verbal statement made to the police at Balo village, Aola District, North East Guadalcanal ("admission statement"), whereby he told the police that he did not mean to kill the deceased but had only realized later that the deceased had died. The second is the record of the interview ("ROI") conducted with the accused by the police at Rove on the 10th January 2010.
   
3. The accused had raised objections to the tender of the two statements into evidence. As a result, a voir dire was held to determine the admissibility of the two statements.
   

Events leading up to the making of the confessional statements.

4. The events leading up to the making of the admission statement and the record of interview are not disputed. They can be summarized as follows.
   
5. After receiving a call from Rove Police Headquarters about a murder case at Aola in North East Guadalcanal in the morning of the 9th January 2010, the police dispatched a group of police officers by helicopter to the crime scene to investigate the alleged murder.
   
6. The group consisted of Sergeant Toaki, Sergeant Peresini, Sergeant Bole, constable Poleita and constable Kesty.
   
7. The group left for Aola at around 2pm that day and arrived at Boeni school shortly after. They then proceeded on foot to Kondolovi village where the deceased's body was resting. The group then proceeded to the scene of the crime at Tenagau village. At Tenagau, the forensic officers carried out their duties while constable Kesty and Sergeant Toaki proceeded on to Balo village, where the accused lived.
   
8. On arrival at Balo, Kesty and Toaki continued with their information gathering. It was at that stage that Kesty and Toaki learned that the accused was one of those involved in the murder. Kesty then requested a person called James, who is the elder brother of the accused, if he could assist in finding the accused and to bring him over to Kesty and Toaki.
   
9. The accused was brought over and, while talking with Kesty and Toaki, the accused made a statement in pidgin that he did not mean to kill the deceased but later he learned that the deceased had died. There is no dispute that the statement was volunteered by the accused and that it was made before any caution was administered to him.
   
10. The accused and his family then accompanied the police team to the log pond at Aola. It was at Aola log pond that the accused was cautioned and then formally arrested for the murder by constable Poleita. After the arrest, the accused and the other police officers boarded the helicopter and returned to Henderson Airport. Kesty remained behind at Aola to carry out further investigations.
    
11. Upon arrival at Henderson, the accused was immediately taken to Honiara Central Police Station where he was kept overnight. The next day, 10th January 2010, the accused was transferred to the Rove Prison compound. At about 1:17pm that day, the accused was interviewed in relation to the murder.
    
12. The interviewing officer was Constable Joseph Poleita and the witnessing officer was Elvis Manakako. The interview was conducted in pidgin at the CID office at the Rove Police Headquarters.
    

The law.

13. It seems to me that admissibility of confessional statements is now governed by both the Evidence Act 2009 ("Evidence Act") and the Judge's Rules[1] ("Judges Rules").
    

The Evidence Act 2009.

14. Part 14 of the Evidence Act governs admissions in criminal proceedings. For the purposes of this voir dire, the relevant sections that fall under that Part are section 167, section 168, section 169, section 170 and section 171.
    
15. Section 167 defines "confession" as an admission made at any time by a person accused of an offence stating or suggesting that the person committed the offence.
    
16. Section 168(1) and (2) provide for the standard of proof in establishing voluntariness of confessions. The standard is the criminal standard. Section 168(3) provides that, in determining whether or not the confession was voluntary, the court is entitled to have regard to, amongst other things, any relevant condition or characteristic of the person who made the confession, including age, personality, language and education and any mental, intellectual or physical disability to which the person is or appears to be subject.
    
17. Section 169 gives the court a discretion to exclude confessions adduced by the prosecution where the confession has been made in circumstances which would make it unfair for the confession to be tendered in evidence against the accused.
    
18. Section 170 lays down the rule that evidence improperly or unlawfully obtained is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the manner that the evidence was obtained. The section continues by specifying the circumstances in which evidence is taken to have been obtained improperly.
    
19. Section 171(1) and (2) further sets out instances in which statements are deemed to have been improperly obtained during questioning. These include the following:
    

[a] the person was under arrest;

[b] the questioning was done by a investigating officer who has power to arrest the person; and,

[c] no caution was administered prior to questioning the person.

20. Section 171(5) extends the meaning of a person under arrest to include a person in the company of an investigating officer for questioning where:-
    

[a] the officer believes that there is sufficient evidence that the person has committed the offence in respect of which he is to be questioned; or,

[b] the officer would not allow the person to leave even if the person wished to leave; or,

[c] the officer had given the person reasonable grounds for believing that the person would not leave even if he wanted to do so.

21. The question whether or not to admit the admission statement made by the accused at Balo village will depend on the application of these provisions, including the requirements of the Judges Rules, to the admission statement.
    

The Judges Rules.

22. Prior to the passing of the Evidence Act, admissibility of confessional statements was governed solely, it seems, by the Rules. These Judges Rules do not have the force of law[2] but are intended to provide guidance as to the standard of fairness to be observed when a question later arises as to the admissibility of a confessional statement made to police[3]. Their breach will not automatically result in the exclusion of the statement from the evidence nor will their compliance necessarily mean an automatic admission of the statement into evidence. It all depends on the discretion of the judge having regard to all the circumstances in each case. As said by Justice Street in R v Jeffries[4]:
    

"It is a question of degree in each case and it is for the presiding judge to determine in the light of all the circumstances whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

23. Judicial decisions in this jurisdiction in connection with the Judges Rules, including judicial decisions in other common law jurisdictions which have similar judges rules, have laid down the principle that a statement by a person containing an admission which shows or suggests that the person had committed the offence will not be admitted into evidence unless it is shown that the statement was made voluntarily, that is, out of the accused's free choice. If it is shown that the statement was not voluntarily made or if the statement was obtained from the accused in circumstances that would make it unfair to the accused for the statement to be admitted against him, the statement will not be admitted into evidence[5].
    
24. A statement is not voluntary if it results from a promise made, or threat issued, to the accused or if it is made either because the will of the accused has been overborne or because of duress, intimidation, persistent importunity or sustained or undue insistence or pressure[6].
    
25. The reason why such statement should not be received into evidence is because a statement forced from the mind of a person by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it[7]. It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence, judges have thought it better to reject it for the due administration of the law[8].
    
26. Where a question arises as to whether a confessional statement was voluntarily made or was fairly obtained, it is for the Crown to prove that the statement was so made or obtained. The standard of prove is the criminal standard. There is no burden on the accused to prove that the statement was involuntary or was unfairly obtained.
    

Admission statement at Balo.

27. I now turn to the admission statement made to Ketsy and Toaki by the accused at Balo village on the 9th January 2010.
    
28. Counsel for the accused submits that the admission statement is inadmissible because the accused was not cautioned before he made the statement. Counsel relies on sections 168 and 171 of the Evidence Act and the Judges Rules in support of his submission.
    
29. There is no dispute that the accused had made the admission statement to Kesty and Toaki at Balo village. Kesty and Toaki, being police officers, were officers with powers of arrest. At that time, Kesty and Toaki have already had sufficient evidence that the accused is one of those persons who murdered the deceased.
    
30. While no questions had yet been asked of the accused at the time he volunteered the statement, there is no doubt that the reason why Kesty requested James to bring the accused to them was for the purpose of his questioning in regards to the murder. That being the case, it is my view that the accused was a person under arrest within the meaning of section 171(5) and, hence, a caution should have been administered as soon as the accused had presented himself to Kesty and Toaki. No caution having been administered, I am satisfied the admission statement was improperly obtained.
    
31. However, the fact that a statement had been improperly obtained does not necessarily mean that it is inadmissible. The court still has discretion whether or not to allow the statement to be admitted into evidence. Section 170(1) of the Evidence Act says that evidence which has been obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the manner that the evidence was obtained.
    
32. Here we have a situation where death had just occurred in the area and the accused was one of those suspected of having caused the death. The police had arrived and he was being asked by the police to see them. It was a tense situation for the accused. It appears that the arrival of the police may have been a relieve for him and this may have contributed to him making the statement. However, I am satisfied that the statement was made at a time when the situation was very tense. Obviously, he was not in control of himself and was vulnerable to saying anything. He was not cautioned. In those circumstances, I am satisfied it would be unfair to the accused and undesirable to admit the statement as evidence against the accused. No ground has been advanced to show that the desirability of admitting this improperly obtained statement outweighs the undesirability of admitting the statement.
    
33. I order that the statement made by the accused to Kesty and Toaki at Balo village on the 9th January 2010 will not be admitted as evidence against the accused in these proceedings.
    

Record of Interview (ROI).

34. Now, the Record of interview ("ROI").
    
35. Again, the accused had objected to the tender into evidence of the ROI on the basis that the ROI has been obtained in breach of both the Evidence Act and the Judges Rules.
    
36. As I understand, counsel says that the Evidence Act and the Judges Rules were breached in that:-
    

[1] The accused did not fully understand the pidgin language used during the interview.

[2] There was no proper caution administered at the interview in the sense that:-

[a] the accused did not properly understand the caution because it was administered in pidgin, a language that he did not properly understand;

[b] the accused was not asked if he would prefer to have the interview in his dogu language;

[c] the accused was not asked whether he would prefer to write his statement or whether the police should write it down for him as required under Stage 3 of the Judges Rules; and,

[d] the cautions in the ROI were not signed in the proper places.

[3] The accused was not feeling well during the interview.

37. The provisions of the Evidence Act which govern the issue raised regarding the ROI have already been explained above in relation to the question whether the admission statement made by the accused at Balo village was admissible. I need not repeat them in detail here.
    
38. Suffice to repeat here again that section 168(2) of the Evidence Act provides that, to be admissible, it must be proved beyond reasonable that the confession has been obtained voluntarily. To determine whether the confession was obtained voluntarily, section 168(3) has set out matters which may be taken into account. Among those matters are the age, personality and education of the person.
    
39. It is not disputed that the accused is 37 years of age and that he had only attained standard 5 education at primary school level. It is also not disputed that his native language is the dogu language. It is also not disputed that he lives at Kominigori village which is a small area within the larger Balo village of the Aola area in North East Guadalcanal. It also appears that he may not be a talkative person. Whether this is his nature or whether this is due to the situation prevailing at the time is not so clear.
    
40. In my view, the matters specified under section 168(3) are not the only matters which need to be taken into account in determining the voluntariness of a confession. The requirements of the Judges Rules must also be taken onto account.
    

Did the accused understand pidgin?

41. The language used during the ROI was pidgin. Counsel submits that the accused understood very little pidgin and should have been interviewed in his dogu language. To substantiate that claim, the accused had requested that someone interpret the whole proceedings to him in his native dogu language. Mrs. Koroi kindly accepted that role. So, the question is whether the accused understands pidgin.
    
42. The Crown has called evidence from Joseph Poleita, Elvis Manakako and Lence Kesty to prove that the accused spoke pidgin very well. Poleita was the police constable who conducted the ROI and Manakako was his witnessing officer. Kesty was another constable who spoke with the accused at Balo village on the day of the incident.
    
43. In his evidence, Poleita said that he worked at the CID branch at the time of the interview and that he knew the requirements about cautioning suspects before conducting interviews with them. He said he had conducted a number of interviews with suspects previously and that, in the case where the suspects were Solomon Islanders, he had not come across any instance where he had to seek an interpreter to assist in translating pidgin into suspects' language. He said that all Solomon Island suspects he had interviewed in the past all spoke and understood pidgin. He said that when he conducted the ROI with the accused on 10th January 2010, the language used was pidgin and that the interview was conducted in Question and Answer form. He said he would think of a question, type it out on the computer in front of him and then put the question to the accused in pidgin. He would then type the answer in pidgin as given by the accused. He said the interview was conducted in pidgin because the accused spoke pidgin very well. He said even prior to the interview, the accused had been speaking with them in pidgin. He said he was a member of the police party that went to Aola to investigate the murder and that at Aola the accused spoke to them in very good pidgin.
    
44. Kesty said he was at Balo village when the accused was brought over to him and Toaki by his elder brother, James Soniluvu. He said they spoke with James and requested James to get the accused to come and see them. Kesty said that when the accused arrived, he spoke to them in pidgin and that it was during their conversation with him that he made the admission statement which was challenged earlier. Kesty said that hearing the accused speaking with them in pidgin at Balo village, he had no reason to believe that the accused did not understand pidgin.
    
45. Poleita also gave evidence that the ROI was conducted in pidgin and that the accused had been speaking good pidgin and therefore he had no reason to think that the accused did not understand pidgin. He admits that he did not ask the accused whether he wanted the ROI to be conducted in pidgin or in dogu language. He said that the reason why he did not ask was because the accused spoke very good pidgin.
    
46. Constable Manakako was the witnessing officer to the ROI. His evidence confirmed Poleita's evidence in regards to the administration of the caution at the time of the ROI and the language in which the ROI was conducted. Similarly, constable Kesty's evidence also confirmed Poleita's evidence in regards to the accused conversing in pidgin with the police party at Aola.
    
47. The accused, however, gave evidence saying that when he was interviewed at Rove, he did not understand what the police were telling him because his head was aching, he was feeling sick and he did not fully understand the pidgin the police were using. He said he could not read and write. In short, he completely denied understanding the questions put to him during the interview saying he did not understand pidgin and the picture he tried to paint during his evidence is that he had no clue whatsoever about what the police were saying during the interview.
    
48. I must say that having seen the accused in the witness box and having heard his answers, I find the accused a very unimpressive witness. He was evasive and pretentious. For instance, when cross examined as to whether he understood the advice given to him by the two lawyers, Galo and Gemu, he did not want to answer the questions directly but kept repeating that they had advised him not to say anything to the police. I am satisfied he understood very well the advice given to him by Galo and Gemu not to say anything to the police during the interview.
    
49. Furthermore, the accused claimed that he could not read nor write. I do not believe him. His signature on the ROI does not testify of his alleged inability to write or read.
    
50. As a tribunal of fact, a judge is entitled to assess the credibility of every witness who appears to give evidence in a case before him. This is because there is no guarantee that every witness who enters the witness box and swears on Bible, or makes an affirmation, to tell the truth is honest. Some will tell the whole truth, some half of the truth while some no truth at all. In the performance of his difficult task of assessing the credibility of the witness, the judge will have regard, not only to what the witness says, but also to his demeanor. Very often, the credibility of a witness is not determined on what he says but on what his demeanor says. It is his credibility that determines the reliability of his evidence.
    
51. In this case, I have observed and assessed the credibility of all the witnesses who gave evidence on this voir dire. I must say I accept the evidence by Poleita, Manakako and Kesty that the accused spoke and understood pidgin very well. He spoke pidgin very well with the police at Aola. He spoke pidgin very well during the interview. The answers he gave to the questions asked of him during the interview were not irrational or incomprehensible. They were the kind of answers which one would expect from those questions.
    
52. It is common knowledge that pidgin is a language, and the only language, commonly spoken by nearly all Solomon Islanders, both young and old. I therefore find it incredible that a 35 year old person who had reached standard 5 primary education, running a canteen at his village and travelling to Honiara almost every month to sell copra, would be so backward in this day and age as to lack any understanding of the pidgin language. I note the fact that a woman, Meverlyn Thugea, and a young boy, Oliver Thugea, had given evidence in court in this case prior to the accused giving evidence on this voir dire. These two witnesses also came from the same area as the accused. They did not appear as sophisticated as the accused. However, these two witnesses were able to give their evidence in pidgin and needed no interpreter to translate the questions to them in dogu language.
    
53. I am also satisfied beyond reasonable doubt that the accused understands pidgin very well and that he understood very well the questions put to him during the interview at Rove on the 10th January 2010. I am satisfied that the answers he gave were given freely and with the knowledge that he was not obliged to give the answers. He was advised by Galo and Gemu not to say anything to the police. He understood the advice yet chose to ignore it and confessed to the police. I am satisfied he understood both pidgin and the caution given to him at the commencement of, and during, the interview.
    
54. The objection to the admissibility of the ROI on the basis that the accused did not fully understand the pidgin language and that accused did not properly understood the caution is rejected.
    

Should the accused have been asked if he preferred to have the interview in his dogu language?

55. Counsel for the accused also submitted that the accused was not asked whether or not he would prefer to be interviewed in Dogu language. He submits that this is a substantial failure which affects the admissibility of the ROI.
    
56. I reject this submission. It is not a requirement of the Evidence Act or the Judges Rules that an interview must be conducted in the accused's language or in a language preferred by the accused.
    
57. The Evidence Act and the Judges Rules are concerned with ensuring that the accused knows of his right to remain silent or, where he chooses not to remain silent, that he understands the risks he is taking if he makes a confession which might be used against him as evidence in court. It is the right to remain silent and his understanding of the risk of making confessions that could be used against him in court which the Evidence Act and the Judges Rules seek to protect. The Rules require that the caution must be given in a language easily understood by the person warned[9]. The Evidence Act says that the caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency..."[10]. The caution and the ROI in this case were given, and conducted, in pidgin - a language which, I am satisfied, the accused understands very well and in which he was able to communicate reasonably fluently. In my view, it is not necessary that the accused should have been asked in what language he would prefer the ROI to be conducted.
    

The accused was not asked whether he would prefer to write his statement or whether the police should write it down for him.

58. Counsel also submits that the accused should have been asked whether he would prefer to write his statement or whether the police should write it down for him as required under Stage 3 of the Judges Rules. Counsel argues that the failure to do so is a substantial omission which affects the admissibility of the ROI.
    
59. It is conceded that it is vital to ask this question to the accused. However, where the accused himself says that he could not read nor write, the need to put the question to him would be a futile exercise. In any event, it would be appropriate to ask that question only where the accused knows how to read and write. In the case where, as here, the accused himself said that he could not read or write, asking him that question would serve no purpose at all. I reject that submission.
    

The cautions in the ROI were not signed in the proper places.

60. Another issue raised by counsel for the accused is that the cautions in the ROI were not signed in the proper places.
    
61. I do not think this ground has any merit. Whether or not it is a requirement that the cautions should have been signed in a specific place, it is my view that failure to comply with such rule is not a substantial breach justifying refusal to admit the ROI into evidence. These are directory provisions breaches of which are not fatal to the ROI. As long as the ROI is signed by the recording officer, the witnessing officer and the accused confirming that the confession was voluntary, minor omissions such as the one being complained of here should not affect the voluntariness of the ROI. As I said earlier, such a breach will not automatically result in the exclusion of the statement from the evidence.
    

The accused was not feeling well during the interview.

62. The final ground raised by counsel in support of the objection to the admissibility of the ROI is an allegation that the accused did not have a good sleep at the Central Police Station on the night before the interview because a drunken person was made to share the same room with the accused.
    
63. Unfortunately, the accused did not say what was it that the drunken person did which disturbed him that night. All he said was that there was a drunken man in the cell with him at the Central Police Station and therefore he did not have a good sleep. Did the drunken man make a lot of noise that night? Did he shout all night? Did he sing and dance all night? Did he continue drinking all night? Did he play songs all night? Was he in pain all night? There is no evidence that any of those things happened. A bare assertion unsupported by evidence is not good enough.
    
64. In any event, the complaint that the accused did not have a good sleep that night was not raised with Poleita or Manakako when they gave their evidence earlier. As such, I reject this ground. I do not believe the accused that he had had a hard time the previous night and was not feeling well during the interview time. In fact, when asked at the commencement of the interview whether he was feeling "sick", he said he was alright except that his head was feeling a bit heavy, not because he did not have a good rest the previous night, but because it was his first time, as he said, to do "samting ia".
    

Order.

65. I am satisfied beyond reasonable doubt that the ROI was voluntary and fair and I order that it be admitted into evidence.
    

THE COURT

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^[1] Practice Directions No. 2 1982.
^[2] R v Swaffield [1998] HCA 1; 192 CLR 159.
^[3] Ibid.
^[4] R v Jeffries, 1946 State Reports at p. 312 as quoted in R v Lee [1950] HCA 25; 82 CLR 133 as further quoted in R v Cawa [2006] SBHC 32; HCSI-CRC 315 of 2004 at p. 2.
^[5] Keke & Others v R CrApp Nos. 8,9, 11 of 2005; R v Cawa [2006] SBHC 32; McDermott v The King (1948) 76 CLR 501; Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; R v Amo & Amana (1963) PNGLR 22.
^[6] McDermott v The King (1948) 76 CLR 501.
^[7] R v Warickshall [1783] EngR 60.
^[8] R v Baldry 169 ER 568.
^[9] See Judges Rules, Stage 2, Interviewing suspects.
^[10] Section 171(3), Evidence Act 2009.