R v Mika [2020] SBMC 24; Criminal Case 158 of 2020 (1 July 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 158 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: WILLIAM MIKA

Ms Florence Hiroshachi for Prosecutions

Mr Paul None for Defence

Date of hearing: 29th of June 2020

Date of ruling: 1^st of July 2020

RULING ON VOIR DIRE

1. The Defendant in this matter is Mr William Mika. He is charged with one count of possession of dangerous drugs, which is contrary to section 8 (b) as read with section 39 (2) (b) of the Dangerous Drugs Act. Mr Mika was apprehended at the Yacht Club area, next to the Aola Base by the Security Officers of the Solomon Islands Ports Authority^[1].
2. He was found selling betel nuts and cigarettes, hence, he was invited by the security officers to their office. It was there that they found 81 rolls of Marijuana in his bag. He was later taken to the Central Police Station, and an interview was conducted on him^[2].
3. During the interview, police believed that Mr Mika had admitted to the allegations made against him. However, Mr Mika now challenges the admission he made, on the grounds that it was obtained unfairly. Mr Mika, through his legal representative believes that some of the questions posed during the record of interview (ROI), were not fitting for a person with limited educational background like him, to fully understand. He further believes that the answers he gave were obtained unfairly, hence, if the ROI was to be admitted as evidence by Prosecutions, it would be unfair on him.
4. During the voir dire hearing, Prosecutions called two witnesses. They are; Police Constable Ron Ghumi, who was the interviewing officer during the ROI, and Police Constable Lorna Poma. A copy of the record of interview (ROI) was also tendered by Prosecutions for identification purposes. I then proceeded into marking the ROI as PE-1.
5. At the end of the examination in chief and cross examination on both witnesses, I enquired if Mr Mika would wish to give evidence or not. I was then informed that Mr Mika was not going to give any evidence at this stage, but will do so during the trial in proper.
6. I then raised the contents of section 200 (2) and Section 143 of the Criminal Procedure Code. These are the sections that talks about the right to reply. I gave Ms Hiroshachi the opportunity to go and consult with her superiors in this regard, despite the fact that the sections referred to are clear and straightforward. On the 30^th of June 2020, when the court reconvened for closing submissions, Prosecutions also tendered a written copy of their closing submissions. I was then told that they have the right to reply because this is just a voir dire hearing and not the trial in proper. First and foremost, I must say, that a voir dire is a trial within a trial, secondly, the sections referred to, do not in any way distinguish whether they will only be applicable in trials or voir dires. For purposes of clarification, I will highlight the sections in dispute.
7. Section 200 (2) states: 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^[3].
8. Section 143 states: 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^[4].
9. Section 200 applies to the procedure in the Magistrate’s, while section 273 applies in the High Court. The wordings of section 200 (2) is the same as section 273 of the Criminal Procedure Code. In the recent unreported case of Regina v Tarifiu and Others, Mr Lawry raised the issue, whereby the Crown was not entitled to make a closing submission. This was because his clients did not call evidence, nor give evidence. The section he referred to in that regard, was section 273 of the Criminal Procedure Code, which as I explained earlier, bears the same effect as section 200 (2). Having sought time to seek instructions from the Director of Public Prosecutions, Ms Belapitu, informed the court, that they concede to what was raised by the defence and that they have no right to address the court, during closing stage. Hence the court proceeded towards delivering the verdict, based on the evidence adduced by the Crown and Defence’s closing submission^[5].
10. With this, I hereby rule, that this court will not be considering the closing submissions tendered by Prosecutions, with reference to section 143, and 200 (2) of the Criminal Procedure Code.

Law on voir dire

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

General Principles

12. A voir dire hearing, which is also referred to as a trial within a trial, is a set of proceedings that determines the admissibility of a confession made by an Accused^[6]. To some extent, such proceedings are being held to assess the competency of the witnesses and expert witnesses that are being called by the Crown^[7].
13. In this regard, the burden is upon the Crown or Prosecutions, to prove beyond a reasonable doubt that the evidence obtained either by way of caution or confessional statements, are admissible and should form part of their evidence in court.

In R v Treacy Humphreys J, in his judgement, stated at pages 96 & 236:

uIn our view, a statement made by a prisoner under arrest is either admissible or not admissible. If it is admissible, the properse for the prosecution is to prove it, and if the statement is in writing to make it an exan exhibit, so that everybody knows what it is and everybody can inquire into it and act accordingly. If it is not admissible, nothing more ought to be heard of it. It is a complete mistake to think that a document which is otherwise inadmissible can be made admissible in evidence simply because it is put to an accused in cross – examination^[8].'

Issue

14. The ground for challenging the admissibility of Mr Mika’s ROI can be found at page 3, of the Defence’s closing submission. It states and I quote: “whether or not the record of interview is fairly obtained and shows the admission of the Accused^[9]”.
15. In other words, the issue can also be put as: Whether or not the circumstances surrounding the alleged admissions, obtained on the 25^th of December 2019, were unfair in nature?
16. In terms of unfairness, I will now refer to the case of Ben Tofola v R^[10], where the Court of Appeal stated at pages 4 – 5, and I qoute:

[11]”.

17. During the voir dire hearing, Mr None, pointed out parts of the ROI, which he believes was obtained unfairly. Again, it is upon the Crown or Prosecutions to prove beyond a reasonable doubt, that the evidence adduced during the ROI was not obtained unfairly.
    

Prosecution Evidence

18. The evidence given by prosecutions, in this regard will be outlined as follows:

PW1

19. The first witness called by Prosecutions, was Police Constable Ron Ghumi. PC Ghumi was the interviewing officer, who interviewed Mr Mika, when he was brought to the Central Investigative Department, at the Central Police Station. Present during the interview was Police Constable Lorna Poma, who sat in as the witnessing officer. WPC Poma is PC Ghumi’s supervisor.
20. PC Ghumi adduced during the evidence in chief that he has worked as a Police officer for 10 years now and that he is currently working with the investigative department. He further explained his duties as an investigator and the procedure leading to the interviewing stage. He then proceeded into the interview that took place on the 25^th of December 2019, which was conducted on the Defendant, Mr William Mika. The interview commenced at 12:21 hour. A document was shown to him, which he identified as a copy of the record of interview (ROI), which took place between him and Mr Mika. He was asked as to his observation on Mr Mika, whether he spoke from his own free will, and the answered with a yes. He also said that when the allegation was put to Mr Mika, he responded by saying he understood. The language used at that time was Pidgin, which can also be seen throughout the ROI which I marked as PE-1.
21. He referred to specific questions and answers recorded in PE-1 to prove that Mr Mika had indeed made admissions from his own free will. The specific questions and answers referred to are questions 27 to 30 of PE-1. For purposes of this ruling, I see fit that the questions and answers be clearly outlined. Hence the questions and answers are as follows:
    • (i) Q27- Desfala maruana ia blong who ia

Ans- Blong James Soro.

(ii) Q28-Who nao James Soro

Ans- Cousin brother blong mi

(iii) Q29- Why nao olketa roll maruana ia stap long Basket blong

Ans- James Soro nao putim

(iv) Q30-Taem James Soro putim box wea hemi garem olketa marijuana rolls long hem, waswe u save

Ans- Yes mi save

22. He then gave evidence to the effect that during the ROI, he observed that Mr Mika had knowledge about the box of marijuana the moment it was put in his bag, by James Soro. It was based on this, that he was of the impression that Mr Mika should and is liable for the offence he is currently charged with. Towards the end of the evidence in chief, he pointed to where he had inserted his signature, as well as that of Mr Mika and the witnessing officer, WPC Poma.
23. During cross examinations, he confirmed the date in which the ROI was conducted, and the fact that WPC Poma was the witnessing officer. He was asked about how long he had been working at the CID. He said that he has been there for almost six months now. Mr None wanted to point out the fact that PC Ghumi was new at the job, however, he replied that he had been an investigator for quite some time now and that interviewing suspects was not new to him. It was then put to him that during the ROI, Mr Mika was not asked about his level of education, of which he replied with a yes. This would mean that PC Ghumi did not know whether Mr Mika had attended any means of formal education, or not.
24. Since Mr Mika had signed the ROI, he did not enquire further as to his level of education. From my understanding, signing of ROI’s is done at the end of all interviews, not before nor during. Further to that, he was cross examined as to the manner in which question 30 was made. Mr None stated that the question was asking two separate questions all at once. First PC Ghumi was asking about the white box which was later connected to the question regarding the marijuana. His response was that, his question only consists of a single question, and not two as initiated by Mr None. Mr None’s line of questioning was done to establish the fact that his client’s answer to question 30, was in relation to the white box, and not the marijuana. In response to this, PC Ghumi said that when he asked question 30, Mr Mika replied that he knew.
25. He was further led to question 39 and the answer given during the ROI, which states
    • (v) Q39-Now dat police hemi findm marijuana long possession blong iu wat nao bae iu talem court taem bae iu kam long court

Ans-Bae mi talem court dat hemi turu wan bat mi no save nao dat marijuana inside long basket blong mi.

26. With the question asked and the answer given, it was then put to PC Ghumi that Mr Mika had not admitted to question 30. The response to this was no.

PW2

27. The second witness was Police Constable Lorna Poma. WPC Poma was the witnessing officer present during the interview conducted on Mr Mika. In her evidence in chief, she corroborated the preliminary questions and answers given by PW1. This was only in relation to the role she carried out during the ROI and the procedure leading to a suspect being interviewed and charged.
28. On the 25^th of December 2019, she was at work (CID- Central Police Station), and that there was a suspect by the name of William Mika. She confirmed that she was the witnessing officer and that the interview commenced at 12:21 hours, she also confirmed that during the whole interview, she did not leave the room they were using.
29. A document was shown to her, which she confirmed to be the ROI (PE-1) conducted on Mr Mika. She further confirmed that when the allegation was put to Mr Mika, he appeared to have understood what was said. She supported her assumptions with the response given by Mr Mika that he understood what had happened and that he knew. Just like PC Ghumi, she gave evidence relating to what was stated under questions 29 and 30. Based on her observation, she believes that Mr Mika was well aware that there was marijuana in the box that was placed in his bag by James Soro. The fact that Mr Mika had signed the ROI, as put by WPC Poma, should indicate that he knew.
30. In cross examination Mr None asked, whether PC Ghumi had enquired into his client’s level of education, and in response she said yes, however, she came to realise that such enquiries were not done. The only question that was asked, was with regards to Mr Mika’s occupation. This was raised under question 18, and the answer was, and I quote, “Nomoa”. In English, this would mean that he is not working.
31. It was then put to her that since Mr Mika did not attend school, he did not understand the questions put to him, but she replied that he should have understood since the ROI was conducted in Pidgin, unless it was conducted in English. When asked if they just assumed that Mr Mika understood everything, she said and I quote, “yes, ating hemi understand nmoa”. Following this, it was put to her that Mr Mika had not reached class 6 (Grade 6), hence his level of understanding was below the level in which the questions were put to him. Furthermore, he was confused with some of the questions but they kept on recording his answers. The fact that Mika had not reached class 6, was not put to PC Ghumi when he was cross examined, except the fact that Mika’s level of education was low. WPC Poma maintained that Mika understood the questions.
32. When the referred to question 30 of the ROI and the fact that there were two question contained in one question, she said that she did notice, but maintained that Mika was not confused with the questions. In light of the answer given in question 39, None suggested that the answer regarding question 30 was made in reference to the white box and not the marijuana, and she said yes. However, when the response to question 39 was finally put to her, she insists that he knew, or as put in her own words, “Nmoa hemi savve nmoa ya”.

Judges Rules

33. The preliminary part of the Judges Rules, put in place by Chief Justice Daly in 1980, states and I quote,

“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^[12]”.

34. There are 4 stages to the Judges Rules, the stage I find relevant in this regard, is stage 2. Stage 2 deals with interviewing of suspects and the factors that are ought to be considered. In detail, stage 2 provides as follows:

“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^[13]” –

ect Interview Wiew Warning)

u>“If you want tont 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 you say if you go to court.ourt. Do you understand^[14]”?

In Pid#160;<160;

“Sapos iu laek fo stap kwaet no moa iu save duim. Bat sapos iu laek fo tell aot stori blong iu iu hevi nao long wannem nao iu tellem. Bae mi ratem kam samting nao iu tellem. Sapos iu go logo long court bae maet me tellem disfella court toktok blong iu. Iu minim^[15]”?

With regards to the ROI, which I marked as PE-1, the caution wne under question 9, which reads: “Before mi askemaskem iu any further question moa, mi must cautionim iu or warnem iu fastaem that if iu laek for stap quite, iu save duim, wasse iu understandim? The reply was, “yes, mi understandim^[16]”.

Analysis

36. Question 11 goes on to ask whether Mr Mika wanted a lawyer or a relative present, to which he answered by saying, “continue wetem interview nomoa”. It was until question 21, that the allegation was put to him. His reply was and I quote, “yes, mi understandim”.
37. With the high level of illiteracy this country is faced with, as compared to the level of literacy, police officers who are tasked with the important duty of interviewing suspect, should not be making mere assumptions to determine a person’s level of understanding. The right to remain silent, in my view, is one that needs to be explained clearly in a manner that is suitable to a suspect’s level of understanding. If we are to compare the wordings of the caution put to Mr Mika, to the pidgin version under the Judges Rules, you would have note how the caution done to Mr Mika was so shallow compared to the actual pidgin version. In actual fact, it had omitted the very part which requires Mr Mika to think carefully before saying anything, should he wish to tell his side of the story.
38. Still on the issue of cautions, I wish to refer to the case of Regina v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala and Willie Zomoro, where Muria CJ, as he was then, addressed the issue regarding a defective caution. In his words, his Lordship stated as follows:

“When one compares the rule as I outlined with the warning given by the police to the accused one sees the obvious difference. There is a clear omission of the warning that the accused has a right to remain silent. This part of the warning is important in this country for three reasons. Firstly, it must be remembered that our Judges Rules were made after 1978 and clearly the fundamental rights of a person suspected of a criminal offence as protected under the Constitution must be borne in mind. Secondly the right to seek legal assistance is also protected by the Constitution. Access to legal advice in this country is something that does not come easily in view of the limited manpower resources that we have. A suspect or an accused person must be given the opportunity to obtain legal advice or assistance. It is important therefore to advice a suspect of his right to remain silent in order that he be given the opportunity to make use of his constitutional right to seek the assistance of a lawyer. Thirdly, an accused person who is in official custody is an environment which is not familiar to him. There may not be any threat or actual violence exerted upon him while in custody. But the potential for such an occurrence in such an environment cannot be simply ignored as far as the person in custody is concerned. In such a situation he must still be given the opportunity to appreciate his right to remain silent despite being in such an unfamiliar environment^[17].

It was the warning given to these accused upon which the fate of caution statement now turns. The breach of the Rule as I see it in this case is not just a defect in the wording of the warning but a fundamental omission in the warning itself which has an impact on the fundamental rights of the accused to remain silent. The interviewing officer or authority must ensure that such a right should not be overlooked. It is both in the interest of the suspect of accused as well as the interviewing authority^[18].

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. In this case the provisions of the Judges Rules to which I have already referred had not been complied with. That non-compliance in this case clearly offends section 10 of the Constitution and is therefore fundamental and as such it renders the caution statements though admissible taken in respect of each of these accused liable to be excluded in the exercise of the courts discretion^[19].”

39. With regards to the case at hand, I find that not only was the caution not fully explained to Mr Mika, but the choice of words were in fact complex for him to understand.
40. The right to remain silent, is a right accorded by law, and is one that does not compel someone to incriminate him or herself. The right to remain silent, in my view, is an opportunity one would exercise, had he or she fully understood what it means. In his remarks in 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, Palmer J, as he was then, stated that:

'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^[20].'

41. In the case of Regina v Talu, his Lordship Palmer CJ, highlighted at page 4, that:

The situation in Solomon Islands is similar. The common law right to silence has been incorporated into the Rights provisions of our Constitution as set out above to the extent that where such warning is defective, it entitles the court to exercise its discretion to exclude such statement. The Rights provisions in my respectful view elevates the common law right to silence to a right which cannot simply be overlooked by Police Officers in formal interview situations. They are obliged to disclose fairly and fully to the accused when interrogating him that his rights include the right to remain silent or to speak and tell his side of the story or to answer questions. Where an accused has not been given the opportunity to exercise his discretion whether to speak or to remain silent, then such statement is liable to be excluded unless it is clear the accused decides to waive such rights^[21].

42. As clearly stated under stage 2 of the Judges Rules, all warnings should be in a language easily understood by the person warned. Hence, when words such as “cautionim iu”, is used, I doubt that Mr Mika, even knows what that meant. With his level of education, he was not in a position to understand what a caution means and the impact the answers he might give, would have on him. In other words, had he known his rights, he would not have incriminated himself.
43. In light of the issue of unfairness, the court can rule that an admission was not obtained unfairly, if Prosecutions proves beyond a reasonable doubt, that it was obtained fairly. In this regard, an admission maybe deemed to have been obtained unfairly, if the court finds that the suspect was not fully informed of his or her right to remain silent, in accordance to the Judges Rules.
44. From the answers given, specifically to questions 30, 39 and 40, and due consideration to Mr Mika’s level of literacy, I do not think, he fully understood what he was putting himself through. He knew there was a white box placed in his bag, by his cousin, James Soro, but he maintains that he does not know that there was marijuana inside. His responses, should have signalled both the interviewing officer and the witnessing officer that Mr Mika did not fully understand the questions put to him.
45. Before reaching my conclusion, I wish to highlight the fact that, our Police officers are tasked with a very huge responsibility. This includes ensuring that law and order is maintained. On that note, they are also responsible for bringing alleged offenders to face justice, to reach that extent, it is their responsibility to see that cases are being investigated and offenders are being charged. Prior to when an offender is being charged, there has to be an interview. This is where it is important that the Judges Rules be complied with. Failing to comply with the Judges Rules, might raise concerns relating to unfairness on the part of any suspect that has been dealt with.
46. With the findings reached, and having assessed the evidence adduced by prosecutions, I find that they have failed to prove beyond a reasonable doubt, that the admission made by Mr William Mika on the 25^th of December 2019 was obtained fairly, with reference to section 171 (1) and (2) of the Evidence Act 2009. Further to that, his constitutional rights to remain silent were never explained properly to him.
47. Hence it is with this, that I hereby order as follows:

ORDERS

(1) That the record of interview (PE-1) conducted on the 25^th of June 2019, be excluded as part of the evidence against Mr William Mika; and
(2) Right of appeal applies.

Dated this 1^st day of July 2020.

_____________

THE COURT

Emily Z Vagibule-Magistrate

---

^[1] Memorandum of agreed facts, filed on the 22^nd of June 2020
^[2] Above n1
^[3] Section 200 (2) of the Criminal Procedure Code of the Solomon Islands, Cap 26.
^[4] Section 143 of the Criminal Procedure Code of the Solomon Islands, Cap 26.
^[5] (Unreported) Regina v Tarifiu and Others, CMC-CRC 379 0f 2020, at paragraph 51.
^[6] [1963] HCA 19; (1946) 109 CLR 559 at page 573
^[7] Above n6

^[8] 1944) 30 CrAppR 93; [1944] 2 AllER 229
^[9] Defence’s closing submissions, at page 3.
^[10] (Unrep. Criminal Appeal No. 2 of 1993)

^[11] At page 8.
^[12] Judges Rules By Daly , CJ, 1980
^[13] Above n12
^[14] Above n 12
^[15] Above n 12
^[16] Above n 12
^[17] (Unrep. Criminal Case No. 20 of 1995
^[18] Above n 17
^[19] Above n 17

^[20] (Unrep. Civil Case No. 423 of 1999)
^[21] Regina v Talu [2005] SBHC 170; HSCI-CRC 402 2004 (13 July 2005)