R v O'ai [2021] SBHC 139; HCSI-CRC 332 of 2017 (9 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v O’ai
Citation:
Date of decision:	9 November 2021
Parties:	Regina v Joseph O’ai
Date of hearing:	27 September 2021
Court file number(s):	332 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	In all that I say, I am satisfied beyond reasonable doubt that the caution statement defendant gave was not subjected to involuntarily and unfairly obtain statement. I will accordingly admit the caution statement for use as evidence in this trial.
Representation:	Mr. Kelesi (DDPP) for the Crown Mr. Aupai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Tofola v Reginam [1993] SBCA 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 332 of 2017

REGINA

V

JOSEPH O’AI

Date of Hearing: 27 September 2021
Date of Ruling: 9 November 2021

Mr. Kelesi (DDPP) for the Crown
Mr. Aupai for the Defendant

Keniapisia; PJ

Ruling on voire Dire Application

Introduction

1. Defence contend that the confession statement of the defendant should not be admitted as evidence. Defence alleged that the contents of the confession statement were involuntarily and unfairly obtained by the police investigator, Mr Melatua. The confession statement (“caution statement”) was taken at the Central Police Station inside of the CID office, on the 10^th May 2017. The caution statement was dated 10^th May 2017. And was signed by Joseph O’ai (accused), Officer Melatua (recording officer) and Officer Gerehe (witnessing officer). I found informative, interesting and helpful detailed submissions and case law authorities from both counsel. I am grateful to counsel for the assistance.

Was Joseph O’ai’s (“JO”) caution statement obtained involuntarily?

2. Defence alleged that the accused was forced to make the confession statements under threat, fear, intimidation and coercion. That Officer Melatua had hit the head of JO so hard against an iron bar door, at Henderson Police Station holding cell. That JO’s head had sustained injuries. Because of this assault, Mr JO was scared and made the confession statement that Officer Melatua had put together during the interview at the Central Police Station in Honiara, on 10/05/2017. Additionally, a person who accompanied Officer Melatua had shown a knife to JO at the Henderson cell. Mr. JO could not say who that person was (unknown identity). The knife incident also caused JO to be intimidated at interview next day.
3. Mr JO alleged that Officer Melatua (recording officer) assaulted him physically and verbally. The nurse at Rove Correctional Centre cell had to treat JO’s head injury sustained from the physical assault incident. The verbal assault relates to threatening and violent words Officer Melatau uttered to JO during initial encounter at Henderson Police Post holding cell. Mr. JO alleged that Officer Melatua shouted at him and violently said words to the effect “My brother, you are so lucky that you are here at the police cell. If you are outside, I will kill you, because you killed my aunty.”
4. I will not go into the details of the physical and verbal assault allegedly made on Mr. JO. Suffice to say, the physical assault was when Melatua pulled JO’s dread lock hair and pushed his head powerfully against the iron bar door at Henderson Police Post holding cell room, causing injuries to JO’s head. And that some police officer(s) or person(s) have shown him a knife, at Henderson Police Post holding cell. The verbal assault was when Melatua spoke violently to JO saying that if JO was somewhere outside, he would have killed him, because JO killed his aunty (JO’s deceased wife is from Santa Cruz and Officer Melatua is also from Santa Cruz).
5. As a result of these assaults taking place, a day before the interview, Mr. JO had fear in his mind, going into the interview the next day. And was forced to give confession statements at the interview, recorded by Officer Melatua and witnessed by Officer Gerehe. Officer Melatua and Officer Gerehe both deny the physical and verbal assaults. The evidence was two against one (two police officers against the sole evidence of the accused, Mr. JO). This is a situation where the bare statements (allegations) of the accused must be weighed against the evidences of the two police officers. So I have to be convinced beyond reasonable doubt that the evidence of the prosecution was undermined in a material way. I am not satisfied on the proper standard that damage was occasioned to the evidence of the prosecution. Defendant failed to provide supporting evidence on physical and verbal assaults.
6. Defence could have produced supporting evidence through: -
   • (i) Two Henderson police officers (one from Are’ Are and the other from Guadalcanal). The two officers were around when the alleged physical and or verbal assault occurred at Henderson Police Post holding cell, according to Mr. JO’s evidence. Names were not supplied. So I do not think it was possible for prosecution to call the two officers to give evidence.
   • (ii) Nurse at Rove Correctional Centre. Mr. JO said in evidence that the nurse treated the injuries he sustained on his head from the physical assault injury. Name was not given. So I do not think it was possible for prosecution to call the nurse to give evidence.
   • (iii) Lodge criminal complaint to authorities. Mr. JO could have filed a complaint to the Police or Correctional service authorities.
   • (iv) Lawyer spoken to during interview break. First early opportunity arose when Mr. JO was given a break to speak to a lawyer from Public Solicitor’s Office during the record of interview. At that point in time, he could have refused to continue with the interview and raised the assault issues with the lawyer he spoke with.
   • (v) Early alarm bell. From 2017 to 2021 is about 4 years. Four years have gone and Mr. JO did nothing to raise the early alarm bells. Issue was only raised when prosecution was about to close its case. Accused may have other motives for doing this at the last minute.
7. Due to lack of supporting evidence (mere bold assertions) defendant has failed to produce evidence to raise a reasonable doubt in my mind, that, the prosecution had obtained the caution statement from Mr. JO in an involuntarily, coercive, intimidating and forceful manner. Because of the mere bare assertions of one witness against two police officers witnesses, I am not inclined to look into the possible motive behind the alleged physical and verbal assault. Mr. JO tried to lead evidence towards motive when he said Officer Melatua and his deceased wife are both from Santa Cruz and are related. I am not satisfied beyond reasonable doubt that the caution statement Mr. JO gave was taken under circumstances tantamount to involuntarily confession.

Was the accused’s caution statement obtained unfairly?

8. The main unfair allegation that defence put forward at voire dire hearing, was that the recording police officer did not follow strictly the four (4) stages required for the conduct of administering of caution statements on an accused before laying of charges. Closely connected to that, the recording police officer omitted to record some of the things said at caution statement interview. Defence counsel also submitted that Mr. JO was not cautioned.
9. It is not a legal requirement that the 4 stages sequence stipulated in the Judges Rule must be strictly adhered to when conducting caution statement on an accused. Case law authorities cited are clear on this. In Tofola v Reginam^[1] , Court of Appeal relevantly stated:-
   • “A breach of the old Judge’s Rule or the new Solomon Islands Judge’s Rules does not automatically mean that a statement must be excluded; the Rules were and are rules of guidance, not of law, to assist the court in deciding upon the matter of fairness in the circumstances”
10. It is clear the Court of Appeal was saying that the real issues for the Court to decide is fairness in the particular circumstances. And that failure to follow the Judges Rules does not necessarily mean, the statement made by the accused is unfair and will be excluded.
11. Consistent with the Court of Appeal pronouncement, I do not subscribe to the notion that the recording police officer must strictly follow the 4 stages in the Judge’s Rule when conducting the interview. The 4 stages are: - (i) interviewing witness (all witnesses generally); (ii) interviewing suspect witness – must give caution; (iii) taking of written statement from suspect – accused can make written statement with prior caution and (iv) charging the accused person – charge is read to him with caution. The essence of the Judge’s Rule and the 4 stages contained therein, is to “ensure that the suspect is fully informed about his/her right to remain silent, if he/she chooses to. But if he/she chooses to speak, what he/she says will be recorded. And will be used as evidence in Court against him/her”. If the record of interview and the process conforms to this fundamental/essence, then the confession statement was administered fairly. In my mind, it is so fundamental that the suspect is “informed about his right to remain silent” – i.e cautioned. That he/she is “innocent until proven guilty” – presumption of innocence is a fundamental human right guaranteed under the Constitution^[2]. And the “prosecution has the onus to proof the suspect guilty”. Additionally, that the “accused must not incriminate himself”. No suspect as a person should be tricked, misled or uninformed about any investigation procedure and processes that may lead to the demise of the accused/suspect person, giving caution statement, which will incriminate him/her. This is why I say the suspect must be fully or adequately informed of his right to innocence until proven guilty. That right means, he/she/accused/suspect may not even say anything at all to the investigating police officers. This is what I know is called cautioning the suspect.
12. Considering the record of interview, evidence from the 2 police officers and evidence from the accused, I conclude that the caution statement was administered and recorded fairly in the circumstances because: -
    • (i) Bare statement with no supporting evidence. I repeat what I say above under involuntarily obtained statement that the assertions by the accused were daring assertions lacking supporting evidence - evidences of 2 police officers against the sole evidence of the accused. Hence I am not satisfied beyond reasonable doubt that the allegations are made out. And that in the circumstances, I am not satisfied that there was breach of the Judges Rule.
    • (ii) Defendant/Suspect was cautioned. From Questions and Answers 1 to 9 (QA 1- 9) we see record of introductory matters not relevant to the allegations. QA 1- 9 were introductory exchanges normal to any conversation. For instance, QA 1 records “Can you tell me your full name and correct address”? The substantive matters of the interview commenced at QA 10 and QA 11. At QA 10, JO was put on notice about the allegation made against him. Recording officer said he will be relaying to JO the allegation. Then JO understood in his recorded reply answer. At QA 11, the allegation was put to JO. JO understood in his recorded reply. At QA 12, the recording officer had actually warned or “cautioned” JO. The recording officer said that he will be asking questions. But if JO wants to remain silent he can choose not to answer questions. And if JO answer the questions, the answers will be recorded and may be used in court against him. JO answered that he understood. Police officer asked JO to think properly on whether to remain silent or to answer questions. Then at QA 13, JO was given a break to speak to a lawyer. He spoke to a lawyer for about 10 minutes. Speaking to a lawyer in my mind, is equivalent to a “caution”. JO was actually speaking to a lawyer who would have advised him of his rights. When interview recommenced at QA 14 downwards, JO still participated. It means having received legal advice (cautioned) he still proceeded with the interview. I am satisfied the interview was conducted fairly with caution thereafter (JO having received legal advice).
    • (iii) Suspect access to a lawyer. Mr. JO was given about 10 minutes to speak to a lawyer. And he did. Yet afterwards he continued to participate in the interview. Again having spoken to a lawyer, I am satisfied the accused had the opportunity to be informed about the investigation process. And about his right to innocence and to remain silent (cautioned).
    • (iv) Signatures. There is no challenge to the signatures. On every page of the record of interview sheets, Mr. JO signed the caution statement, indicating his willingness to participate in the record of interview.
13. So I am satisfied beyond reasonable doubt that the interview was fairly conducted. For the same reasons, I also reject defence counsel’s submissions that some of the things said at the interview were not recorded. We cannot be over expecting that every word said at interview must be recorded. The recorded caution statement is still subjected to scrutiny at trial (examination in chief and cross examination). Again, the fundamentals are the most important thing that the interview process must adhere to. The fundamentals are the “suspect be fully informed of his rights to remain silent, is innocent until proven guilty and the onus is on the state to proof the accused guilty”. The fundamentals in my respectful view were adhered to through the cautions, made at the interview.
14. Defence also alleged in submissions that JO was not properly fed, was hungry and was mentally weak. Therefore, he was forced mentally to admit what he confessed, in the caution statement. This allegation will not be considered. Defence counsel asked the accused only about evidences on the feeding or non-feeding. Counsel did not ask the two police officers who gave evidence for the Crown. This is offensive against the rule of evidence in Browne v Dunn. Consequently, I will not use any evidence relating to feeding or non-feeding of JO. Furthermore, JO had opportunity to raise this issue when he spoke to a lawyer during interview. The voir dire application was not properly presented, on this allegation. Defence counsel should have given advance notice to prosecution about what issues they will raise at voir dire hearing (involuntary, unfair caution statement and or feeding issue). Then prosecution may consider calling the right people to come and give evidence on the issue. Here defence counsel only asked questions on non-feeding from his own witness, during oral evidence. Counsel did not ask the police officers. Yet went on and made submissions on non-feeding. That is one sided trial and an ambush on the other side (unfair trial).
15. In all that I say, I am satisfied beyond reasonable doubt that the caution statement defendant gave was not subjected to involuntarily and unfairly obtain statement. I will accordingly admit the caution statement for use as evidence in this trial.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] [1993] SBCA 4; CA-CRAC 2 of 1993 (29^th October 1993); at top of page 7.
^[2] Section 10 (2) (a) of the Constitution.