Regina v Pentani [2017] SBMC 34; Criminal Case 259 of 2017 (16 August 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 259 of 2017

REGINA
-v-
PITSON PENTANI

Date of Hearing: August 16, 2017
Date of Decision: August 16, 2017

Mr. L. Adifaka for the prosecution
Mr. M. Pitakaka for the accused

RULING ON VOIR DIRE

1. The accused was charged with one count of careless driving contrary to section 40 (1) of the Road Transport Act following a motor vehicle collision that occurred on 18^th January 2017 at the Koloale junction road at China Town in Honiara. It is alleged that he was the one at fault by failing to give way to a vehicle using the main driveway traveling towards the Lawson Tama direction, when he made a sudden drive into the main road from the one-way road in front of the Chungwa School and caused the oncoming vehicle to bump into his vehicle.
   
2. He was arrested and interviewed by Kukum Police officers on two occasions. First on 18^th January 2017 where a statement under caution was obtained from him and the final occasion on 2^nd March 2017 through a record of interview. These two interviews were conducted inside the Kukum Police Station.
   
3. During the trial, he sought to exclude those interviews on the basis that the interviewing officers did not read back to him the contents of his answers he gave to police before he signed them and hence, the circumstances in which those statements were procured is unfair. Therefore, in his view, the Court should refuse to admit them on the basis of unfairness.
   
4. Stage 3 (C) of the Judge Rules is relevant to this issue and accordingly it states:
   

“C. 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.’”

5. The application to exclude a record of interview or caution statement on the ground of unfairness is a question of fact. Therefore, it is trite law for the accused who raised this allegation to point to the Court the evidence that supports such allegation, otherwise, the application will fail. This requirement was set out in the Court of Appeal case of R v Ben Tofola^[1] where the Court explained it in the following clear terms:
   

“We think it will be helpful if we now 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” ^[2] (underlined mine).

6. It is clear from the remarks made in the case of Tofola that in relation to the ground of unfairness, the accused who complains that the circumstance resulted in the obtaining of the evidence during the record of interview was unfair should not merely raised it but, must substantiate it with evidence. Those evidence can be adduced from the evidence of the interviewing and witnessing officer and the accused if he/she elects to give evidence.
   
7. Four police officers were called by the prosecution. They were; Harry Fititei and Nester Patson as interviewing officers and Basil Claui and Medeo Bau as witnessing officers for the two occasions.
   
8. The accused chose not to give evidence but elected to remain silent.
   
9. The questions need to be asked is; whether there is any evidence that expressly show the interviewing officers did not read back the statement under caution and the record of interview to the accused on those two occasions? Or alternatively, whether police failed to read the statements back to the accused? If so, is there any explanation why they failed to adhere to that requirement taking into account the accused right as provided under stage 3 (C) of the Judges Rules.
   

Statement under Caution dated 18^th January 2017

10. The evidence of Harry Fititei is straight forward in that, he was the one who interviewed the accused as witnessed by another police officer, Basil Claui. At the beginning of the interview, he cautioned the accused of his rights required under the Judge Rules. Towards the end of the interview, he asked the accused if he could read the statement over to him but the accused preferred to read it himself. He afforded him that choice and allowed him to read his statement. The accused did not want to add or alter any information to his answers and as a result, he signed each page of the caution statement. Fititei and Claui also signed that statement to confirm accepting and completion of the statement under caution taken from the accused.
    
11. This piece of evidence was supported by Claui who in his evidence said that Fititei gave the statement to the accused because he preferred to read the statement himself.
    
12. The lines of cross examination for these two witnesses are more or less the same. I have looked at the series of questions asked by the defence and unfortunately, there wasn’t any question being asked in cross examination to show that despite the accused had preferred to read the statement himself, it is incumbent on police to read it back to the accused to avoid any confusion before he could sign it. Further, there wasn’t any question being asked to suggest that the failure of police to do this during the course of the interview is still unfair to the accused taking into account his level of education.
    
13. The failure of the defence to point to any evidence that shows the accused was treated unfairly by the interviewing officer in unfortunate. This was exacerbated by failure of the accused to explain his side of the story in Court for this hearing. Thus, this precludes the Court to rely or believe the allegation of unfairness raised herein. Instead, what transpired is, it is clear in his answers to questions 20 and 21 that he preferred police not to read him the statement but decided to read it himself. He then made a conscious decision not to add or correct any of his answers. This reflects he had fully accepted his statement and therefore, having accepted it, it is needless for police to read it back to him since the requirement of the Judges Rules has already been complied with.
    
14. I find the failure of police to read back his statement in that particular circumstance is not unfair to the accused. Even if there is a need, his decision to read the statement other than for Fititei prevails over the need for police to read the statement to him. Therefore, there is no impropriety here on the conduct of the interviewing officer as the accused has elected Fititei to dispense with the requirement of reading over to him his caution statement. Hence, his ‘statement under caution’ dated 18^th January 2017 is accordingly admitted as evidence for the trial.
    

Record of Interview dated 2^nd March 2017

15. The record of interview of the accused was taken by Nester Patson and Medeo Bau inside the Kukum Police Station. For Nester, she stated in her evidence that after the interview, she asked the accused to read his statement before he could sign it. The accused then read the interview and straightway signed it. This evidence is contrary to the evidence given by Medeo who said Nester read over to him before he signed it. So who is actually doing the reading is still uncertain on the face of the evidence. Even if the record of interview was read to him or vice versa, it is expected that this should be recorded and reflected in that actual wording of the record of interview.
    
16. I have looked at the answers to questions 21 – 27 of the record of interview but failed to see any questions being recorded to show that the record of interview was read back to him or he preferred to read it himself. Unlike the statement under caution which is clear on this point, the actual wording of the record of interview does not reflect the evidence given by Nester in Court that she in fact asked the accused to read the interview before he signed it.
    
17. Not only that, but there was not any evidence being led from Nester to show whether she had hand-written down the answers or typed them during the course of the interview. This explanation is very important in light of the evidence given by Medeo that he clearly recalled Nester did not use any computer or laptop when she interviewed the accused but only hand-written the questions and answers as the interview progresses. If that is the case then it is expected that the hand written version of the record of interview should be used in Court. Instead, the prosecution produced the opposite, that is, a typed version but not the hand written one as seen by Medeo.
    
18. Since the prosecution now produced the typed version of the interview, it is crucial that Nester must read it to the accused or perhaps, allow the accused to read it again before he could sign it to avoid any modification of the answers.
    
19. Again, even if I accept there is nothing wrong with police to have the interview typed before the accused could sign it, I failed to see anywhere in the record of interview that the accused was afforded that right to read his statement as claimed by Nester or alternatively, she read it to him as stated by Medeo. To make assertions that police had done that whilst the document doesn’t say so is simply an explanation based on loose footing.
    
20. In this circumstance, I find the omission of the police to record in the interview whether the accused wants his statement to be read over to him or whether he decided to read it himself is unfortunate. In my view, such technique is not fair on the accused especially when he made admissions on the understanding that the interviewing officer had done her job fairly and properly. Also, there isn’t any explanation offered by Nester why she failed to record the occasion she offered the accused his right to read his statement or vice versa before he signed it as she claimed in her evidence. This is also one of the defects identified in the prosecution’s case.
    
21. The conclusion I reached is; the circumstance in which the answers given by the accused and procured by the police is not fair. It is not fair because the interviewing officer in this case, Ms. Nester Patson, has failed to record in the record of interview that she had given the accused his statement to read before he signed it or vice versa, so that the court is rest assured that his right has been duly afforded during the course of the interview. The absence of that is tantamount of reaching a conclusion that the accused was not afforded the right to understand the admissions he gave to police before he signed the statement. Therefore, the benefit of this must be given to the accused.
    
22. Having settled on this finding, I therefore refuse to admit the record of interview dated 2^nd March 2017.
    
23. Order accordingly.
    

------------------------------------------------------------------------------------

THE COURT

Augustine Aulanga – Principal Magistrate

---

^[1] [1993] SBCA 4
^[2] At page 4