R v Solodia [2005] SBMC 5; PMC 2821 of 2005 (20 October 2005)

IN THE PRINCIPAL MAGISTRATE’S COURT HELD AT HONIARA
IN THE SOLOMON ISLANDS

Case No 2821/05

R

-v-

PHILIP SOLODIA

Before Deputy Chief Magistrate K F Chapman

20 October 2005

Mr Little for the DPP
Mr Ashley for the Defendant

RULING ON THE ADMISSIBILITY OF THE STATEMENT OF THE DEFENDANT

Introduction

At the commencement of the trial of this matter the prosecution sought to tender in evidence two audiotapes of a record of interview with the defendant recorded on the 31 March 2005 together with a typed transcript of the interview. The defendant took objection to this. The tapes became MFI 1(a) and 1(b) and the transcript MFI 2.

Counsel for the defendant requested an adjournment to enable him to listen to the tapes and compare them with the transcript. This is a matter that should have been undertaken well before the commencement of the trial.

Rather than grant an adjournment I had the relevant parts of the tape played in Court and was able to make the observation for myself. In view of some of the submissions made by counsel for the defendant on the admissibility of the statement this was a useful exercise.

The Law

Police officers are required to act fairly when investigating offences which requires compliance with:

[i] the Constitution; and

[ii] the Judges’ Rules.

Section 10(2) of the Constitution states (in part):

‘Every person who is charged with a criminal offence –

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice.’ (emphasis added)

In Joel Nanango (Unrep. Criminal Appeal Case No. 4 of 1996) the Court of Appeal stated at page 2:

‘The Judge’s Rules of the English High Court, once applied in the Solomon Islands, were replaced by the rules issued by Daly CJ in the early 1980’s. These rules are essentially the same as the English rules but have the added advantage of Pidgin translations of the various cautionary statements.’

However, in Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal held at page 8:

‘A breach of the old Judge’s Rules 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.’ (emphasis added)

It is clear from this that the real issue for the Court to decide is the fairness in the particular circumstances and the failure to follow the Judges Rules does not necessarily mean the statement made by the defendant will be excluded.

The following are the current Judge’s Rules applicable to Solomon Islands which were issued by Daly CJ as ‘Practice Direction No. 2 of 1982’:

‘RULES BY CHIEF JUSTICE ON INTERVIEWS IN CONNECTION WITH CRIME

(These Rules replace the Judge’s Rules of the English High Court Judges which have been applied up to now in Solomon Islands. The Rules have been produced after wide consultation.

The pidgin version uses the spelling of words at present used in Solomon Islands in official publications. However should it be found that another form of spelling is more easy for police and suspects to understand then there is no objection to that spelling being used. The important thing is for the sense to be retained.)

Preliminary:

Courts want to be fair to police officers who have a hard job to do in bringing cases to court but also to be fair to persons who are suspected and accused of crimes. The law says that if a man says something it may be brought up in court as evidence. But the court must be satisfied that the man said what he did of his own free will, that is, that he was not forced or threatened or promised something and he knew what he was doing. The following rules should be used in relation to interviews as then the court can see that a man was given the right warnings.

There are four stages in the interview of persons in connection with criminal offences. These rules set out what a police officer or other person in authority shall do at each stage so that a court can see that the interview was kept fair. If the interview is not fair because these Rules have not been kept or some other reason the court may refuse to hear evidence of what a person said.

Stage 1: Interviewing Witnesses

A police officer has a right to ask and record any questions or answers or statements when interviewing witnesses. Before the police officer has strong evidence that a crime has been committed, and that the person interviewed has committed it, all persons are interviewed as witnesses. (‘Strong evidence’ here means strong evidence that could prove before a court that the person is guilty).

Stage 2: Interviewing Suspects

When a police officer has strong evidence that a person has committed an offence he shall warn him to be careful of what he says. All warnings should be in a language easily understood by the person warned. All persons under arrest or in custody shall be so warned. This is so a court will know that the person was talking seriously and understood what he was doing. This warning given to suspects shall be –

(Suspect Interview Warning)

If you want to remain silent you may do so. But if you want to tell your side you think carefully about what you say because I shall write what you say down and may tell a court what you say if you go to court. Do you understand?

In Pidgin:

Sapos in laek fo stap kwaet no moa iu save duim. Bat sapos in laek fo tell aot stori blong iu iu tink hevi nao long wannem nao iu tellem. Bae mi ratem kam samting nao iu tellem. Sapos iu go long court bae maet me tellem disfella court toktok blong iu. In minim?

Questions and answers should be recorded either during the interview or very shortly after it and agreed by all police officers present. The date and time when questioning began and finished should be written down together with the names of all present.

The best thing is for the suspect to also agree and sign the record but this is not essential.

Stage 3: Taking of written statement from suspect

Again it is important that a person against whom there is strong evidence that could prove he has committed an offence should only make a written statement after warning of what he is doing.

1. If he wishes to make a written statement this warning shall be given: --
   

(Suspect Statement Invitation)

If you wish to remain silent you may do so. If you wish to, you may give a written statement. You can write it or I will. That is up to you. If you give a written statement it may be produced to a court if you go to court. Do you wish to give a written statement?

In Pidgin:

Sapos iu laek fo stap kwaet no moa in save duim. Sapos iu laekem iu save givem stori blong iu long paper. Iu save raetem kam seleva o mi save raetem. Hemi saed blong iu. Sapos iu givvem wan fela stori long paper ia bae misfella save taken disfella paper long court for showem long court ia sapos iu go long court. Waswe, iu laek fo givvem stori blong iu long paper?

2. If the suspect agrees and asks the police officer to write the statement it should start—
   

(Suspect Statement Start)

I agree to give this statement of my own free will. I want the policeman to write down my statement. I have been told I can remain silent. I know the statement may be used in court. It is true what I now put in the statement.

In Pidgin:

Mi seleva agree fo givvem stori blong mi long paper. Mi laekem policeman fo raetem kam stori blong mi. Olketa tellem mi finis mi save stap kwaet no moa. Mi save tu disfella paper ia might hem kamap long court. Stori bae me tellem hem turu wan.

(If the suspect writes the statement himself leave out the words “I want the policeman to write down my statement” or their pidgin equivalent)

This should be signed first or the suspect’s mark affixed and the statement then written by the suspect or told by him to the police officer who writes it down in the words used.

100. The suspect should be given a chance to read the statement or it should be read to him. He should be asked if he wants to alter anything, correct anything or add anything. If he says he does, alterations should be made as requested or he should make the alterations himself. There should then be added the following certificate;
     

(Suspect Statement End)

‘I understand what is in the statement which I have read (or “which has been read to me”). It is true.’

In Pidgin:

‘Mi save gudfella wannem nao in saet long disfella paper ia. Mi readem finis (o “olketa readem hem kam long me finis”). Evri samting hem turu noa.’

This certificate should be signed by the suspect (or his mark affixed to it) and signed by any persons present. If the suspect refuses to sign or affix his mark, this fact should be noted on the statement. The date and time when the statement is finished should be recorded.

Stage 4: Charging of Accused Person

When a person is charged, the charge should be read to him. Afterwards he should be warned as follows:--

“Do you wish to say anything about this offence which it is said you have committed? If so, I will write down what you say and the court may hear what you say. You may remain silent if you wish.”

In Pidgin:

Iu laek fo tellem eni samting about disfella samting ia wannem olketa say iu duim? Sapos iu tellem eni samting bae mi raetem and bae mi save tellem disfella samting long court. Sapos iu laek fo stap kwaet no moa iu save duim.”

(Stage 4 is the formal charge when the case is ready to go to court. When a man is arrested he must be told why he is arrested but that is not the time when he is charged for this stage.)’

I refer specifically to the Judges Rules under the heading of “Preliminary”. It will be apparent from that that the Rules emphasis the notion of fairness. Not only to the defendant but also to police officers who are in reality acting on behalf of the community.

For the purpose of considering the admissibility of the statement, evidence was taken from the police officer that conducted the interview but the defendant chose not to call any evidence.

Counsel for the defendant made a number of criticisms in the way the record was made which included: -

1. the fact that the caution was not given until Q 23. That in my view overlooks Stage 1 of the Judges Rules.
   

On the evidence before me it is clear the interview up until that stage had not proceeded past this point. In my view the criticism is without foundation.

2. the caution should have included reference to the issues that the police officer intended to cover in the interview.
   

When asked for authority to support this position counsel was unable to cite any. I am again of the view the criticism is without foundation.

3. once the defendant indicated he wanted a lawyer the interview should not have continued until one was present.
   

The Judges Rules do not specifically cover this issue and counsel for the defendant relied on a decision of Goldsbrough J unreported 325/2004 delivered on 6/7/05.

The facts before me are quite different from those before His Honour. The following are some of the relevant issues:-

❑ the interview took place during the day and was not oppressively lengthy.
❑ The interview was recorded
❑ The defendant was a senior police officer who should have been well aware of the Judges Rules and of his rights
❑ The interview took place at his station
❑ There was no misuse of an interpreter
❑ It was the defendant who indicated there was no lawyer available
❑ There is no evidence his free will was overborne

Again I consider the criticism to be without foundation.

4. counsel suggested the defendant was intimidated by the fact that the police officers were carrying firearms and he was threatened by the comments of the police officer at Q 109.
   

Q 109 has to be considered in context. Not only have I had the opportunity of reading the transcript of the interview but also I have listen to the relevant parts of the tape.

In my view the police officer handled a potentially volatile situation in an appropriate manner and the comments were not made as a threat.

Counsel for the prosecution led evidence that the firearm of the police officer had no clip in it. In my view that is irrelevant. How was the defendant to know that?

I again find the criticism of the defendant without foundation.

In Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal stated at pages 4 – 5:

We think it will be helpful if we set out courses that may be acceptably followed when there is a challenge to the admissibility of an accused’s statement. The challenge may be either on the grounds of non – voluntariness or that in its discretion the Court should refuse to admit the statement as having been unfairly obtained or that its use would in some other way be unfair.

In the former case there is a positive evidential burden on the Crown to prove voluntariness; in the latter case the accused must be able to point to some material in the evidence, either that which had already been given, or which was called by either party on the voir dire, which will satisfy the Court that admitting the evidence would be unfair.’ (emphasis added)

Having considered all of the evidence before me I am satisfied to the degree required that the statement was made voluntarily.

Further I am satisfied to the degree required that the statement was obtained fairly and that it can be admitted into evidence without being in some other way unfair to the defendant

Conclusion

I would therefore admit the tapes and the transcript into evidence they becoming Exhibits 1 (a) & (b) & 2 respectively.