Regina v Rokoto [2020] SBMC 15; Criminal Case 234 of 2019 (22 June 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 234 of 2019

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: MARKIE ROKOTO

Before: Emily Zazariko Vagibule

Crown: Ms Hellen Naqu and Mr Samuel Tovosia

Defence: Mr George Gray and Ms Tracey Aisa

Date of hearing: 17^th of June 2020

Date of ruling: 22^nd of June 2020

RULING ON VOIR DIRE

1. The Defendant in this matter, is Mr Markie Rokoto. He is charged with offences relating to the Road and Transport Act and the Police Act 2013. The traffic related offences premises on the alleged incident that occurred on the 19^th of February 2019^[1], while those relating to the Police Act of 2013 were alleged to have occurred on the 20^th of February 2019^[2].
2. This matter has been set for trial following the not guilty pleas recorded by the court on the 19^th of May 2019. The Crown in this regard, intends to tender the record of interview, conducted on Mr Rokoto on the 27^th of February 2019, as part of their evidence to the court. Defence on the other hand objects to this, hence a voir dire was conducted for the court to rule on whether or not the record of interview should be admitted as part of the Crown’s evidence.
3. The voir dire hearing was done on the 17^th of June 2020. For purposes of this hearing, the Crown called two witnesses to give evidence. The witnesses were none other but Staff Sargent Michael Aevo, who was the recording officer during the interview conducted on Mr Rokoto, and Police Constable Hellen Inapi, who also took part in the interview as the witnessing officer.
4. Mr Rokoto did not give evidence during the voir dire hearing. The following day, parties submitted their closing submissions and the matter was further adjourned for ruling on the 22^nd of June 2020. After the matter was adjourned, the court came to realise that the record of interview was never tendered to the court for identification purposes. It was due to this that the court requested an urgent appearance of all counsels involved, on the afternoon of June 19, 2020. On that day, the court referred to the case of Regina v Simon Mani^[3] as the basis for recalling counsels after the Crown had already closed their case. Counsels were informed (after enquiries raised by Mr Gray on whether or not the Crown will re-open their case and the procedural issues that might arise if the Crown were to re-open their case), that the Crown is not required to re-open their case, since it was an oversight on their part to have the record of interview tendered and marked for identification purposes.
5. Mr Gray also raised another issue relating to the closing submissions tendered by the Crown. He submits that, since Mr Rokoto did not adduce any evidence, the Crown was not entitled to make a closing submission. He made reference to section 200 (2) of the Criminal Procedure Code of the Solomon Islands. The court then informed Mr Gray, that this issue will be addressed in the ruling which is to be delivered on the 22^nd of June 2020.

PART IV Criminal Procedure Code (CPC): Procedure in trials before Magistrates Court:

6. The procedure that parties are inclined to follow in the Magistrates Court during trials, can be found under Part IV of the CPC, as highlighted above. The section referred to by Mr Gray comes under Part IV, and it states that:

Section 200(2) Opening and close of case for prosecution and defence: - If the accused person, or any of one of several accused persons, adduces any evidence, the prosecutor shall, subject to the provisions of section 143, be entitled to address the court at the close of the evidence for the defence and before closing speech (if any) by or on behalf of the accused person or any one of several accused persons^[4].

7. Section 143 of the CPC states Right to reply:

In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply^[5].

8. These sections are very clear when it comes to how and when a right of reply can be done by the Crown. The High Court case of Regina v Bela - Judgment [2004] SBHC^[6], clearly highlights when a right of reply can be allowed on the part of the Crown. While the section applicable in the High Court, is not the same as that in the Magistrates Court, they both have the same effect in the trial process.
9. The section that is applied in the High Court, which bears the same effect as section 200 of the CPC, is section 273. In his remarks, Kabui J, as he was then, stated and I quote: I have thought about section 273 of the CPC and its implications in this regard. This section represents the rule of practice in this jurisdiction and obviously assumes that proper practice is adhered to at all times by practitioners and the courts. Where this rule of proper practice under this section is abused, misapplied or misunderstood with the result that unfairness may occur disadvantaging the Prosecution, the Prosecution, in my view, may rebut after reply^[7]. I end with these words-

“The last word, in a criminal trial, leaving aside the judge’s summing- up, belongs to the defence. After the prosecution closing speech, defence counsel sums up his case to the jury. He has a broad discretion to say anything he considers desirable on the whole case, but he should not allege as facts matters of which no evidence has been given. As it was put in R. v. Bateson (1991) The Times, 10 April 1991, he should not ‘conjure explanations out of the air’, but he is entitled to suggest, for example, that there might be an innocent explanation for his client’s lies if there was evidence in the case on which to base such an explanation. The rule applies equally to prosecuting counsel, but defence counsel may be more tempted to transgress it.” “(See Emmison on Criminal Procedure, by John Sprack, 5th Edition, 1992 at 143)^[8]”.

10. In this regard, the Crown is not required to re-open their case, but to simply agree on tendering the record of interview for identification purposes. The circumstances in the case highlighted above may be slightly different since the Crown was given the opportunity to re-open their case.
11. Hence, it is in my view, that since Mr Rokoto has not adduced any evidence, I am inclined to consider section 200 (2) of the CPC, and am of the view, that the Crown is not entitled to make a closing submission. Regardless of this, I still applaud the efforts taken by the Crown to go the extra mile in preparing closing submissions.
    

Law regarding voir dire

12. The law regarding voir dire in the Solomon Islands, is section 181 of the Evidence Act 2009.

Ground for challenging of record of interview

13. I note that there is only one ground advanced by the defence to challenge the admissibility of the record of interview, that is:
    • (i) The Recording /Interviewing Officer failed to advise the Accused Markie Rokoto of his entitlement in law to consult legal advice before and during the conducting of the record of interview on the 27^th of February 2019; thereby failing to afford fairness the Accused^[9].

Since I have ruled out the closing submission tendered by the Crown, my analysis will only be confined to the evidence adduced by the two witnesses called by the Crown, and defence’s closing submission.

Crown’s evidence

14. For purposes of this hearing, I will reemphasis on the fact that two witnesses were called by the Crown. Further to that, the record of interview was also tendered, and was marked as PE-1 for identification purposes. The first witness called by the Crown was Staff Sargent (S/Sgt) Michael Aevo. S/Sgt Aevo gave the following evidence:

That he has been serving in the Royal Solomon Islands Police Force (RSIPF) for 27 years now. He joined the Force in 1993, and since then, he has worked in different departments within the RSIPF. He spent two years on probation. After receiving his confirmation he then worked in the Central Investigation Department. His job involves general duties. In 1998 he received his confirmation as a Detective Constable within the Central Investigation Department. He worked there until 2005 when he took up his new appointment with the Professional Standard Internal Investigations (PSII). All along he has been stationed at the Central Police Station.

15. During his probation period, he only did general policing. His confirmation was done following recommendations by his supervisor. When asked about his knowledge with regards to dealing with suspects, he said that he has dealt with suspects who have committed crimes and are brought to the station. He further clarified what he meant when he mentioned suspects being brought to the station. He states that before dealing with any suspect, a case must be registered, after that, investigations are carried out. When there is evidence relating to the matter, suspects are then arrested and brought to the station.
16. At the station, the suspects are interviewed, and following that, a charge is laid, which requires them to appear in court. He was later asked about his understanding with regards to the Judges Rules, and he stated that it is a requirement that is applied during the process of interviewing a suspect. This is purposely to allow the suspect to know about his or her rights during an interview. When he was asked to briefly state the requirements under the Judges Rules, he said that it is just a warning to let them know about their rights on whether to participate in the interview or not.
17. With regards to his understanding on what a caution is, he stated that it is just a warning. He was asked as to what the warning is about and he said, and I quote: “warning for mekkem save about oketa rights blo hem, whether for hemi participate or whether for hemi remain silent lo disfala process ya”. He further clarifies that when he said rights, he was referring to the rights of a suspect. He also spoke briefly on his experience when it comes to dealing with suspects. In his experience, there have been suspects that were cooperative and others who were not. He also said that when suspects are cautioned, everyone understands what is put to them, because that is when they respond on whether they will answer the questions put to them or not. There were some who would state their wish to remain silent and only talk in court, and there are others who would cooperate by answering the questions put to them.
18. In terms of the nature of his current job, he stated that they mainly deal with the conduct of police officers, both criminal and discipline. He was not able to recall the exact number of discipline cases that he had dealt with, but he states that he had dealt with a number of discipline cases. The same was stated in relation to the criminal cases he has dealt with. However, he estimated that he may have dealt with five (5) cases that have gone before the court. He recalls that these cases all ended up with convictions.
19. After a lengthy enquiry into S/SGt Aevo’s work experience, he was finally asked about the interview conducted on Mr Markie Rokoto. This interview was conducted at the PSII office. When asked as to why this particular interview was done, he answered stating that it was done following the allegations against Mr Rokoto’s involvement in a traffic accident. The interview took place on the 27^th of February 2019. The witnessing officer present during the interview, was Police Constable Hellen Inapi.

He described where each of them was sitting during the interview and, he later pointed to the table in front of the bench area in court room 1 as an estimate to the length of the table used during the interview.

20. The interview commenced at 11:49 hours and ended at 15:14 hours and was conducted in English. When asked whether Mr Rokoto understood what he was saying, he said yes. He stated that at the beginning of the interview, he explained to Mr Rokoto as to why he was interviewed.
21. When asked whether he recalls cautioning Mr Rokoto, he answered as follows: b4 me admininsterm disfala caution, me explain hem datfala allegation wea hemi againstim hem. Me askem hem if hemi understandim, in response hemi seh me understandim. Earlier on, he mentioned that the interview was conducted in English, hence, I enquired as to whether Mr Rokoto replied in English or Pidgin. The response to my question was that it was in English and so if it was to be put in Pidgin, the answer was: me understandim.
22. As per my records, Ms Naqu posed the following question, and I quote: after u explainim allegation, “what na u seh tym u mekem caution lo hem?” The response was: “after hemi seh dat me understandim, then me apply na dat warning or caution ya, the caution me askem hem nmoa weda hem wish for remain silent or weda hemi laek fo gvm stori blo hem and talm hem dat whatever story talm bae mifala raetim down inside process blo ROI and tekm osem evidence b4 court, afta then me askem hem if hemi understandim, then hem talm me bak lo pidgin that hemi understandim, hemi agree for givm story blo hem”. In terms of recording, the answers obtained were typed into a computer that was in the interview room at the material time.
23. He then admitted the fact that he did not ask Mr Rokoto on whether he wanted a lawyer or not. This was because he had forgotten and had overlooked that question. Towards the end he was asked whether, he had shown what was typed into the computer to Mr Rokoto, and he said that the computer screen was turned towards Mr Rokoto and that the response from Mr Rokoto was: “hemi ok, me satisfy nmoa lo the interview ya”. After that, he asked Mr Rokoto whether he agrees to signing the document containing the record of interview, and since he had agreed, they all proceeded into signing the document. A document was later shown to him of which he confirmed to be the record of interview relating to Mr Rokoto. He later pointed to where Mr Rokoto, PC Inapi and himself, have inserted their signatures.
24. S/Sgt Aevo also gave evidence on the fact that Mr Rokoto had been in the Force for 13 years and is part of the Police Response Team (PRT).
25. In cross examination, he was asked whether he knew how long Mr Rokoto had been in the PRT, and since he was not in the position to answer that question, it was put to him that Mr Rokoto had been with the PRT for 11 years.
26. Based on what he stated about his work experience during the examination in chief, it was put to him that he has 25 years of experience as a detective with the CID, an experience that Mr Rokoto does not have since all along he was with the PRT.
27. He was also asked in relation to the five cases that he mentioned earlier, that have gone before the court and have all resulted in convictions, specifically whether the officers involved have all been dismissed. His answer was, not everyone were dismissed. He was later asked if he agrees that dismissing an officer is determined by the nature of the charge involved, and he said that it depends on the court. If a conviction is entered for traffic offences, then it will depend on the recommendation made by the PSII. In my view, the recommendation he is referring to is in relation to whether or not an officer should be dismissed from the Force if he or she is convicted for any traffic offence.
28. It was also put to him that, Mr Rokoto was not only charged with traffic related offences, but was also charged with some criminal offences, of which he agrees. Defence then tendered a copy of the charge, which was later marked as DE-1, for identification purposes. He also agreed that once the court is to convict Mr Rokoto for counts 5 and 6, it might result in a dismissal, however, he said that it would all depend on the Police Commissioner.
29. He once again admitted his failure to ask Mr Rokoto on whether he wishes to seek any advice from a lawyer before and during the interview. He also agreed that had Mr Rokoto consulted with a lawyer he would have understood what it meant, to remain silent, and he would not have incriminated himself during the interview.
30. The second witness called was PC Inapi. The first part of her evidence in chief relates to the various departments within the Force, she has worked in and the specific duties she had performed. When asked whether she has done any job relating to record of interviews during her probation, she stated that she did sat in, to witness the officers carrying out the actual interview. When asked about her understanding on the Judges Rules, she said that when dealing with offenders there must be fairness. In her view, the requirements under the Judges Rules involves the right to remain silent. In terms of her views on what a caution is, she said that when a suspect is interviewed he or she must know about his or her rights and whether they understand it.
31. She confirmed her role during the interview and the location and date in which it took place. She also confirmed that S/Sgt Aevo had cautioned Mr Rokoto before the interview started. This part of her evidence corroborated what was earlier stated by S/Sgt Aevo.
32. As a witnessing officer, she briefly outlined her role, which involves ensuring that the interview was conducted fairly. She also stated that if the interviewing officer had forgotten to ask questions based on the answers given by the offender, then she would step in and raise those questions.
33. Surprisingly, she could not remember if Mr Rokoto was informed of the reason behind the interview. Further to that, she could not even remember whether the allegations against Mr Rokoto were put to him or not, except for the fact that he was charged for traffic related offences. When asked if Mr Rokoto was only charged with traffic offences, she said she could not remember.
34. She does not even remember if S/Sgt Aevo had asked Mr Rokoto on whether he needs a lawyer or not. Like S/Sgt Aevo, she confirmed to the court that she had signed the record of interview, by way of pointing to where her signature was on the document.
35. In cross examination she agrees that the duties performed in each branch of the RSIPF differ from each other. This would mean that not all the branches within the RSIPF will deal with conducting of record of interviews. Mr Gray suggested that an officer working under the PRT would not be expected to do record of interviews and she agreed. She once again confirmed that she did not recall whether S/Sgt Aevo had asked Mr Rokoto if he needs a lawyer or not. Since she outlined her role as the witnessing officer and the fact that she could raise questions not asked by the interviewing officer, Mr Gray asked her why she did not remind S/Sgt Aevo about the need to ask Mr Rokoto on whether he needed a lawyer or not. She replied that since S/Sgt Aevo was a senior sergeant and is more experienced than her, she chose to say nothing and later apologised for what had happened.

Judges Rules

36. The process of interviewing a suspect or accused is guided by Section 171 (1) (2) of the Evidence Act 2009, and the respective stages within the Judges Rules. Stage 2 deals with interviewing of suspects, it states: 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^[10] –

(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^[11]?

In Pidgin:

Sapos iu laek fo stap kwaet no moa iu save duim. Bat sapos iu 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. Iu minim^[12]?

37. Having had the opportunity to peruse PE-1 (ROI), I note that the English version of the suspect interview warning, was raised in question 8, where the answer was yes^[13]. The relevant provision regarding cautions, is section 171 of the Evidence Act 2009.
38. Question 7 states and I quote: “I am going to interview you in relation to your involvement into the single motor vehicle that you are driving to wit a White marked Police Land Cruiser Registration No: G3686 to which involve in an accident in which ditch into a drain as a result the front right spring was damage and the engine oil was spill off. Incident occurred at the Town Council area Holy Cross road on the 19^th of February 2019 at between 23:00hrs-23:30hrs. Do you understand^[14]?” The answer to this question was yes^[15].
39. On that note, I wish to highlight how Question 7 of the record of interview was only confined to the traffic related offences. The charge document which is marked as DE-1, outlines a total of six counts^[16]. The first three were traffic related, while the other three as put by Mr Gray are criminal in nature. Count 5, relates to possession of police property, which includes some ammunition.
40. You would note from PE-1 that Questions 1-44 were in relation to the traffic related offences, while Questions 45-55 were in relation to the criminal related offences. Question 56-58 touched mainly on the traffic related offences and partly on the criminal related offences.
41. In the High Court Case of Regina v Keaviri [1997],Muria CJ, as he was then, uttered the importance of complying with the Judges Rules when it comes to dealing with suspects. At page 7 of his judgment he stated the following:

This court however is required by law to ensure that the rights of an individual, including those accused of committing crimes are protected. This it will do by ensuring compliance with the rules and other legal provisions in this regard^[17].

42. The gist of the defence case premises on the interviewing officers failure, to inform Markie Rokoto on his rights to consult a lawyer. They believe, that had Markie Rokoto consulted with a lawyer, then he would have known what it really means, to remain silent. If this had been the case, then he would not have answered any question to the extent of incriminating himself.
43. In the case of Regina v Iro, Goldsbrough J, as he was then, clearly states that:

There is no particular right, it seems to me, to have a lawyer present during an interview. But to consult a lawyer at the stage in proceeding is a well-established rule. The right to consult a lawyer at this stage is inextricably connected with the right to silence that is reflected in the words of the caution. It is not helpful and may well be taken by some as mischievous to suggest that the interview take place first and the lawyer can give advice at a later stage...a suspect should know that he has a right to remain silent and is entitled to legal advice on that^[18].

44. I personally believe that the failure to provide an accused the reasonable opportunity to consult a lawyer, does have a significant effect on the right to remain silent and to some extent, the presumption of innocence. To support my view in this regard, I would like to direct Counsels attention to section 10 (1),(2)(a-d) and (7)of the Constitution, which sets out as follows:

10.-(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law^[19].

(2) Every person who is charged with a criminal offence^[20] -

(a) shall be presumed to be innocent until he is proved or has pleaded guilty^[21];

(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^[22];

(c) shall be given adequate time and facilities for the preparation of his defence^[23];

(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^[24];

Section 10,-(7) goes on to say: No person who is tried for a criminal offence shall be compelled to give evidence at the trial^[25].

These sections, in my view, are clear enough to support the view taken in paragraph 44.

45. While the above mentioned sections are already clear in this regard, I hereby make further reference, to the case of Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police, where Palmer J, as he was then, stated:

'The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court^[26].

46. During the cross examination stage, it was put to S/Sgt Aevo that counts 5 and 6 of the charge against Markie Rokoto were very serious, in the sense that they involve possession of police property (ammunition) and offensive behaviour within police premises. This then raises another concern on my part, that is, the fact that the whole allegation against Markie Rokoto was never put to him as seen in Question 8 of PE-1. In fact, what was put to him, in my view, is incomplete and falls short of the need to communicate clearly as to the whole allegation at hand. Mr Gray believes, that offending’s such as counts 5 and 6 will not be taken lightly by the court, as well as the Police Commissioner if a conviction is entered against each of these counts. Hence reference was made to paragraph 44 of the appeal case of Lele v Regina, which states:

“We have said that whether or not advice as to legal representation should be given has to be determined on the circumstances of any individual case. One of the powerful circumstances for consideration will be the seriousness of the charge faced, and the possible sentencing consequences^[27]”.

47. Going back to the evidence adduced by both witnesses during the examination in chief and cross examination, I would say that the evidence given by PC Inapi to some extent does not corroborate what was adduced by S/Sgt Aevo. I say this because out of the 70 questions I recorded during her evidence in chief and cross examination, I further recorded a total of 8 times, when she said that she does not remember. This alone should draw the concern of whether or not the interview was done fairly. PC Inapi’s role was simply to corroborate what had happened during the interview, instead her response to most of the questions relating to Markie Rokoto’s interview, was and I quote: “me no remember”.
48. The fact that Markie Rokoto is a police officer should not be taken to infer that he is well aware of what takes place during a record of interview. As stated by PC Inapi, the duties carried out under each branch of the RSIPF are different in nature. We cannot expect an officer working under the PRT like Mr Rokoto, to master the work carried out by CID officers, especially during record of interviews.
49. It is my respectful view, that the very sections referred to under paragraph 44, promotes the common law right to silence as one that should not be taken lightly, overlooked^[28] or as was in this case, forgotten during any record of interview. The police are indulged to disclose all allegations to an accused in full and in fairness^[29]. With such, they should ensure that an accused really understands what it means to remain silent^[30]. Hence, if an accused is proved to have been denied the opportunity to exercise his or her constitutional rights to remain silent, then any evidence obtained through that manner, cannot be rendered as admissible, unless it was given freely^[31]. These views are made with reference to the remarks made by Palmer CJ, in the case of Regina v Talu.
50. It is with these findings, and with the greatest respect to the work our police officers are doing, and the sacrifices they have made to bring people to face justice, I am of the view that Mr Markie Rokoto’s constitutional rights, were indeed breached as far as Section 171 (1) (2) of the Evidence Act 2009 is concerned.
51. With this, I hereby order as follows:

ORDERS

(i) That the record of interview carried out on the 27^th of February 2019 be excluded as part of the evidence against Mr Markie Rokoto; and
(ii) Right of appeal applies.

Dated this 22^nd day of June 2020.

___________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

---

^[1] DE-1
^[2] Above, n1.
^[3] CRC 49 93 HC

^[4] Section 200 (2) of the Criminal Procedure Code of Solomon Islands.

^[5] Section 143 of the Criminal procedure Code of the Solomon Islands.
^[6] HC-CRC NO. 100 OF 2002
^[7] Above n5
^[8] Above n5
^[9] Page 2 of Defence’s closing submission at para 1.4
^[10] Practice direction No. 2 of 1982
^[11] Above n9
^[12] Above n9
^[13] PE-1
^[14] Above n 12
^[15] Above n12
^[16] Above n1

^[17] (Unrep. Criminal Case No. 20 of 1995 [Judgment])

^[18] [2005] SBHC 8
^[19] Section 10 (1) of the Constitution of the Solomon Islands
^[20] Section 10 (2) of the Constitution of the Solomon Islands
^[21] Section 10 (2) (a) of the Constitution of the Solomon Islands
^[22] Section 1 0(2) (b) of the Constitution of the Solomon Islands
^[23] Section 10 (2) (c) of the Constitution of the Solomon Islands
^[24] Section 10 (1) (d) of the Constitution of the Solomon Islands
^[25] Section 10 (7) of the Constitution of the Solomon Islands

^[26] Unrep. Civil Case No. 423 of 1999)

^[27] [2014] SBCA 32; SICOA-CRAC 35 & 36 of 2013 (17 October 2014)
^[28] [2005] SBHC 170; HCSI-CRC 402 of 2004 (13 July 2005)
^[29] Above n28
^[30] Above n28
^[31] Above n28