Regina v Alagere [2015] SBHC 19; HCSI-CRC 203 of 2013 (26 January 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 203 of 2013

REGINA

V

Brian Alagere (aka Scophield Baro)

HEARING: 21st – 23rd January 2015
Ruling (voir dire): 26th January 2015

M. Manata (Ms) and R. Olutimayin (Ms.) for the Crown
Mr. G. Gray and Mr. Sevuloni Valenitabua for the Defendant

Palmer CJ.

• The defendant, Brian Alagere a.k.a. Scophield Baro ("the Defendant"), challenges the admissibility of the answers to questions 77 – 79 as recorded in his additional statement obtained under caution by police on the 16th October 2012 between 15:18 hours and 17:08 hours at the Interview Room of the Serious Crime Office, Rove Police Headquarters.
  
• Two main grounds are relied on, that of voluntariness and unfairness. Under the first ground of voluntariness it is alleged that force and threats were used. Under the second ground it is alleged there was unfairness in the way the interview was conducted.
  

Ground of voluntariness.

• The first issue which arises is whether there is evidence of force or threats? At least some evidence needs to be established or shown by the defence. Once that is shown the onus lies on Prosecution to prove beyond reasonable doubt that the confession was obtained or given voluntarily.
  
• Two witnesses were called to give evidence in support of the defence case in this voir dire application, the defendant and Rhoda Alagere (mother of the defendant).
  
• The first question is whether there is evidence of force. I think this can be shortly disposed of for there is none that has been adduced and has not been pursued by the defence in their submissions. I think it is important to point out that when the issue of voir dire was raised, three grounds were relied. Force was one of them and the line of cross examination of prosecution's witnesses was conducted along that line as well as when the defendant was examined in chief. The only element of force I could pick up from the evidence is that of an angry look from the interviewing officer, Joseph Roscal ("Roscal"). Apart from that no other suggestion of any force has been adduced. I say no more on that but do point out that this could be viewed adversely against the defendant because he has raised that but with little or no supporting material.
  
• The main ground relied on regarding voluntariness is that of a threat to allow the relatives of the victim (deceased) to enter the interview room if he did not agree with the answers given to questions 77, 78 and 79.
  
• The first issue to be considered is whether prosecution have established beyond reasonable doubt that no threat was issued. The evidence adduced in respect of this allegation is that when the defendant was asked question 77, he told the court that he had answered "no" to that question. Question 77 reads: "Waswe, any text message iu sendem go lo dadi blo Flora?" The answer recorded reads: "Yia, text FLORA nao mekem an hem save nao lo draft me lukem so mi sendem nao lo end blo September."
  
• The Defendant asserts however that Roscal had insisted that the text was sent by him. He then pulled the curtain aside and told him that if he did not agree with the answer that was written that he would open the door and let the relatives of the victim (deceased) come in and beat him up.
  
• I have had the opportunity to consider the evidence of the Defendant and that of the prosecution witnesses in this case and come to the following conclusion. I find that no such threat was issued for the following reasons.
  
• I am satisfied that all processes and requirements pertaining to the making of a statement under caution had been complied. Both prosecution witnesses, Roscal and Lawrence Iko ("Iko") confirmed to the court that all requirements of the Judge's Rules were complied with. They told the court the Defendant was notified of his rights to see a lawyer, to remain silent and not answer any of the questions. They also told the court that at the end of the interview the Defendant was given the interview to read through his statement and to make any alterations or changes before signing and confirming the accuracy of the statement. They also told the court that at some point in time they took a break of about five minutes for refreshment and then resumed thereafter. I am satisfied there is nothing whatsoever to suggest that anything untoward or irregular happened during that interview that would raise any issue of concern. In particular at that point in time when questions 767, 78 and 79 were being asked. The records simply continued as normal and it has not been shown or established that something significant occurred at that point in time to warrant any intervention apart from the disagreement of the Defendant with the answers that were recorded.
  
• The crucial issue in this allegation is one of credibility. There are a number of ways credibility can be tested. First in terms of consistency. I find the evidence of the two prosecution witnesses fairly consistent right through. The only slight discrepancy is in the evidence of Roscal when he stated that there was no window while Iko confirmed there was a window but that Roscal had his back to it. He also pointed out there was a curtain but not with clothes. The second discrepancy relates to whether Roscal had a mobile phone with him at that time or not but again Iko points out that the phone was in his bag. The essence of the prosecution evidence however remain consistent throughout that no threats were issued and no curtains were pushed aside as well as the denial of any phone calls to the mother of the Defendant. I pause to point out that that perhaps the issue of whether a phone call was made or not could have been further taken up with Telekom company to check if they had records of any such call but this was not pursued.
  
• When that is contrasted with the evidence of the Defendant I find inconsistencies in his evidence for instance in his assertion as to when the phone call for instance was made well after 4:30 pm and his mother stating she received a call at around 4:00 pm. As well there is no record of anything being done at that particular point of time and no suggestion was put to the two witnesses as to how and why they had not recorded that phone call if it did occur. The only break recorded occurred at 4:24 pm but that was only for a short break and there was no record of any phone call being made. The timing simply does not coincide.
  
• The second way in which credibility can be tested is in terms of the clarity, certainty and accuracy of the evidence that is adduced. Again I find the evidence of the two prosecution witnesses to be fairly clear, certain and accurate. It is important to keep in mind that police procedures and Judge's Rules that have been put in place are there for a purpose and that is to ensure that the statement is obtained freely, fairly and voluntarily. The role of the corroborating officer as well for instance, in this case Iko is to ensure that no illegal or improper force is applied or anything untoward done that could affect the voluntariness of the statement that is being done. Everything is then recorded meticulously and carefully. In other jurisdictions they have used technology to assist them such as audio recording or video recording. I have repeatedly recommended that something of this sort can be done to assist police in their investigative work.
  
• The Defendant on the other hand I find to be vague, ambiguous and evasive in his responses. For instance when he was asked about the answers to questions 77, 78 and 79, his responses were neither here nor there. He could not say if the answers were given by Roscal, that is he wrote those answers and forced them on him or whether he was the one who gave those answers. His explanation would seem to be that he gave those answers to please Roscal or because he thought that that was what he wanted to hear from him. But when it was put to him that he could not possibly know what was in Roscal's mind or what he wanted, he conceded this point.
  
• Other tests of credibility and I would simply summarise them for the purposes of this ruling would be whether the prosecution witnesses had any interest in this case as opposed to the Defendant, that would cause them to elicit or require an answer different to what the Defendant asserts he gave to them. I find none in this case other than in the normal course of their duties as investigative police officers. In contrast, the Defendant would have a direct interest in the matter if the truth of the answers recorded would implicate him or work against him.
  
• I also find no prejudice, bias or reason for the two prosecution witnesses to lie to court about their evidence. I also find no evidence of any corruption or bribery involved to suggest that two witnesses may have been bribed by anyone so as to distort the answers in the record of interview so as to secure a conviction. I also find no mistake that would suggest that the records should not or cannot be relied on.
  
• In contrast, the Defendant has a lot at stake and has more reason or cause to have those answers excluded as having been obtained involuntarily and or unfairly.
  

Ground of unfairness.

• This brings me to consider the issue of unfairness as it pertains to the assertion of a phone call having been made by Roscal to the mother of the Defendant specifically when the interview came to questions 77, 78 and 79. At this particular point in time, the interview would have been suspended or stopped and a phone call made. There is no record whatsoever of that. No suggestion or explanation has been made as to why this was not recorded if true. This would have been a major breach in the protocols and recording requirements that it was not accounted for, if true.
  
• As I pointed out earlier in this judgement, certain things can be tested or proved to see if what was said or alleged contains the ring of truth, that is, credible and therefore should be relied upon as correct and true.
  
• One of the requirements of a recorded interview is that any such stoppages or requests for a phone call etc. should be recorded. There is no evidence of such. Further, the timing of such a call if correct simply do not correspond, the mother puts the call at 4:00 pm in the afternoon, while the assertion by the Defendant puts it at sometime after 4:30 pm.
  
• In terms of credibility and reliability, I am simply not satisfied any such call was made. But even if it was made (which is denied), the mother in her evidence told the court that she told the Defendant to cooperate with the police if he knew anything about the incident or the matter that he had been charged with. And so even if that advice or conversation is to be taken into account, there would be nothing to suggest that it would have any unfair effect on the Defendant. The mother did not tell him to answer in a certain way or to suggest any answers to him. Her conversation was very basic and would seem to be what any concerned normal mother would suggest to a son. And so on that basis as well, I am not satisfied that such a phone call (which is denied) would amount to unfairness and would warrant the intervention of the court.
  

Decision

• I am satisfied prosecution has discharged the onus placed on it that the statement was obtained voluntarily and that there was no unfairness in the way and manner in which the statement had been obtained. I rule accordingly that the answers to those three questions are admissible.
  

The Court.