R v Fainga'anuku [1989] TOSC 1; CR 38-67 1988 (10 April 1989)

SUPREME COURT OF TONGA

CR 38-67/88

R v 'OLIVIA FAINGA'ANUKU

TRIAL BEFORE MR JUSTICE WEBSTER AND A JURY AT PANGAI, HA’APAI,
5TH, 6TH, 7TH AND 10TH APRIL, 1989.

RULING ON ADMISSIBILITY OF CONFESSIONS ETC

The prosecution have sought to produce as evidence 13 confession statements made by the accused and 1 letter allegedly written by the accused to the Chief Superintendent of Police.

The defence submitted that the statements were gained under duress from beginning to end and should be excluded. The prosecution contested this. The defence also objected to production of the letter, which the accused denied writing.

During the hearing on these questions 3 Police officers gave evidence for the prosecution and the accused herself gave evidence for the defence. It is a matter of regret to say that a feature of the hearing was that none of this evidence was of high quality - and I do not like having to say such a thing. It varied from muddled through seriously misleading to downright unbelievable evidence. Even allowing for these events being 18 months ago it seemed to the court that at times witnesses were saying what they thought they were expected to say, rather than the truth which they had sworn to tell. In the much derided words of a top British civil servant they were "being economical with the truth". The relevant law is contained in sections 21 and 22 of the Evidence Act, Cap 13. Under section 21 a confession is not admissible if its making appears to the Court to have been caused by any inducement, threat or promise relating to the charge from the prosecutor (or other person in authority) and sufficient in the opinion of the Court to afford the accused reasonable grounds for supposing that by making it she would gain any advantage or avoid any evil of a temporal nature in regard to the proceeding against her.

Section 22 says among other things that a confession may be admissible even if no warning was given that the accused was not bound to make a confession and even if the accused need not have answered the questions. However the proviso is added that where a confession is made to a police officer in answer to questions when the accused is in custody, the Court has a discretion to refuse to admit evidence of the confession.

By Section 107 of Cap 13 the burden of proving any fact, necessary to be proved in order to enable evidence of some other fact to be given, rests on the person who wishes to give the evidence, in this case the prosecution. Similarly under section 108 in a criminal case the burden of proving that the accused does not come within any exception lies on the prosecution. In other words the prosecution have to prove beyond reasonable doubt that there was no inducement or threat which caused the accused to make the confessions.

What happened on the first day on which the accused was questioned by Inspector 'Unga Fifita, Thursday 8th October 1987, is crucial to this whole issue, because if any inducement or threat was made on that day it carried over to the other days on which the accused gave confessions and taints all of them too.

Now Insp Fifita admitted that as a result of the auditor’s report (Exhibit 3) which he had seen, suspicion was on the accused before he started questioning her. Indeed that was the purpose of his visit to Ha'apai. He also admitted under cross-examination - in direct contradiction to his earlier evidence, which can most kindly be described as misleading - that the accused was not cautioned before he started questioning her, nor were the initial questions and the accused's answers recorded in writing. This was only done when a formal charge was put to the accused later.

Proper police practice is that in serious cases all questions and answers put to an accused should be recorded in writing - and I know that this is done because I have seen such records in other cases. Then, as soon as there are reasonable grounds for suspecting that an accused has committed an offence, he or she should be cautioned. So this should have been done before Insp Fifita ever spoke to ‘Olivia about this matter. Under section 22 (d) and (e) this in itself is not an objection to the confessions being admitted, but it has to be a factor which the Court can consider in the general picture along with all other relevant factors in deciding whether to exercise its discretion under section 22.

These police procedures are all designed to ensure fairness to an accused person and to avoid any inducements or threats. If they are not complied with properly, what happens is that it makes it much more difficult for the prosecution to prove that there were no inducements or threats.

Another matter on which police procedures were not followed was that a woman police officer was not present on this day, or for much of the time when these statements were taken. On this point I accepted the evidence of ‘Olivia as it was confirmed by WPC Elisepa Taufa, the only WPC on Ha'apai at the time. Again under cross-examination the Inspector conceded that his initial evidence that a WPC was present all the time was not correct. This is an important rule as the presence of another woman will make a woman feel less threatened by any questioning, especially in Tongan society. It also has the important aspect that it should protect the male police officers present from any allegations that sexual improprieties or threats were used to obtain confessions, though I am not suggesting that any such thing took place here.

‘Olivia stated in evidence that at the beginning of this first interview the Inspector told her that, if she did not tell him, she would be put in prison for 8 days or that it would make things get over quickly if she told and if not she would be liable to be put in prison for 8 days. She was cross-examined on this but did not alter her evidence and on this aspect of her evidence I believe her. It is immaterial that the request that she might get home quickly may have come from her. While this point was not put exactly to the Inspector it was put to him that the accused's evidence would be that the statements were not voluntary and he answered that he believed that they were voluntary because ‘Olivia signed them, but then that is not the real test of voluntariness, the Court must look at all the circumstances. In any event in view of the 2 instances already cited of bland evidence from the Inspector later being accepted by him as incorrect, the Court has to view the Inspector’s evidence with a certain amount of caution. In another instance he assured the Court that on the 14th there was a break in questioning for lunch, but if this was so it is clear from the statements themselves that this has been no longer than 11 minutes at the maximum, from which there has to be deducted the preliminary unrecorded discussion.

In evidence in the main trial the Court was told by the auditor Lisiate Maileseni that in August ‘Olivia told him she did not know anything about the differences in the receipts, so clearly something happened between August and the time on 8th October when ‘Olivia admitted what she had done and agreed to make a confession statement. No evidence has been given to the Court by either side of any other events in between affecting this matter, so there is certainly an inference that the unrecorded discussion and questioning by Inspector Fifita prior to the first charge being made at 1625 on 8th October may have done something to change ‘Olivia's attitude.

It is unfortunate that the prosecution did not lead evidence from the countersigning officer of this first statement, Cpl Mesui Taufa. While it is not essential for a confession statement to be witnessed or for the evidence of its taking to be corroborated by another witness, in a case like this it becomes more difficult for the Court to get a complete picture of what happened and so more difficult for the prosecution to establish the voluntariness beyond reasonable doubt.

It was not disputed that at this time ‘Olivia was in an advanced state of pregnancy some 2 months before she gave birth. She admitted that the first interview took a short time, around 20 minutes (from the statements it was from 1625-1652) and so I do not put any great emphasis on the physical stress on a pregnant woman being questioned that day. In any case she had been working more or less normally up till then. Many healthy young women carry on working a full day up until much nearer the time they give birth. But where her condition does have a bearing on this question is that it is well known that pregnant women sometimes act unusually - they get crazes for eating unusual foods or doing odd things and they may act irrationally. Therefore the Court has to be doubly careful if considering whether in this particularly fragile mental state, ‘Olivia was more susceptible to inducements or threats. What may not have been a threat to a tough young man may have seemed a real threat to a pregnant young woman. One of the Police witnesses, LCpl Ahokava, admitted that he would not have brought in ‘Olivia for questioning while she was pregnant.

Evidence was also given that during the questioning, in addition to Inspector Fifita and the countersigning officer, there may have been 2 other police officers also present in the CID room where it took place. The Inspector and ‘Olivia sat at adjacent sides of the table and Mr Talanoa for the defence submitted that this was contrary to good police practice, under which the investigating officer should sit on the opposite side of the table to the person being questioned and beyond arm's length. Mr Talanoa submitted that both these facts amounted to oppression or threats in relation to a small, pregnant young woman and while I would not exclude this confession on these grounds alone they do amount to circumstances which the Court takes into account in reaching its decision.

Another factor to be taken into account is that although ‘Olivia was an educated young woman the confessions were written down by the Inspector. It is always preferable that a literate person writes his or her own statement in his or her own words. If not, the confessions are more vulnerable to challenge.

The Solicitor General for the prosecution submitted that the confessions were voluntary and that there were no inducements, threats or promises to warrant them being rendered inadmissible. He submitted that the reference to being kept in custody for 8 days was not an inducement or threat and quoted para 15-23 of Archbold on page 1090, which however was dealing with a situation where it was not accepted by the court that threatening words had been spoken.

Para 15-35 of Archbold says that in deciding whether an admission is voluntary, the court has been at pains to hold that even the most gentle threat or slight inducement will taint a confession (R v Smith [1959] 2 All ER 193). In another case, Commissioners of Customs & Excise v Harz & Power [1967] 1 All ER 177 Lord Reid said “It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men or women; they may be very ignorant and terrified by the predicament in which they find themselves. So it may have been right to err on the safe side”.

In para 15-36 a clear distinction is drawn between saying to an accused "Tell the truth", which is not improper, and including some kind of inducement or threat e.g. by saying “It would be better if you told the truth", or made a statement, and so on, which can amount to an inducement.

The facts that ‘Olivia has admitted in the witness box that she signed the first confession and that it was true are not relevant to the question of its admissibility. (Archbold 15-28). Under our system of criminal prosecution an accused person has a right to remain silent throughout the whole procedure from initial investigation to the end of the trial. He or she need not have any defence but is entitled to sit back and make the prosecution prove its case beyond reasonable doubt without any help from his or her side unless it is help given voluntarily. Nor can the prosecution use in the main trial evidence of what ‘Olivia said in this trial-within-a-trial.

In all the circumstances I therefore find that the first confession on 8th October, and consequently all the other confessions also, were caused by the inducement of not being kept in custody for 8 days, or alternatively by the threat of so being kept in custody. From this it follows that I find that the prosecution have not proved beyond reasonable doubt that there was no inducement or threat and I rule all the confessions and evidence about them are inadmissible. Nor can the accused be cross-examined about them.

If I am wrong in this, I believe that ‘Olivia was in reality in custody meaning confinement or imprisonment at the time she made these confessions. It is true that she had not formally been arrested, but this was because she worked in the Police Station and went there normally. Because of this the Police did not require to arrest her, but in reality she had no option but to attend these question sessions. It is inconceivable that she could have got up in the middle of a session and. walked out, the Police would immediately have arrested her and brought her back - the Inspector's initial threat indicated this.

There are a number of cases supporting this view whether or not a person been arrested depends not on the legality of the arrest, but on whether he has been deprived of his liberty to go where he pleases. (Spicer v Holt [1976] 3 All ER 71 (HL)). A person can be arrested without his knowing it (Meering_ v Graham-White Aviation (1919) 122 LT 44 (CA)) and this may occur by action or words restraining the person from moving anywhere beyond the arrester's control (Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL)). All these and others were approved in the recent House of Lords case of Murray v Minister of Defence [1988] UKHL 13; [1988] 2 All ER 521 (HL).

In R v Pailate & Others [1989] Tonga LR 109 (120/88) the learned Chief Justice held that the test to be applied exercising the discretion in section 22 where an accused was in custody should be that in section 76(2) of the English Police and Criminal Evidence Act 1984. This is in essence that the prosecution must prove beyond reasonable doubt that (even if the confession may be true) there was no oppression or nothing was said or done to make it unreliable.

For the reasons given earlier in this ruling I therefore find that the accused was in custody and I exercise my discretion to refuse to admit evidence of the confessions.

Before I leave the confessions I wish to comment on the session on 14th October from 1150 to 1455 when 8 statements were taken, without any real break. It seems to the Court improper to have subjected a woman in a delicate condition to 3 hours of continuous questioning without any proper break for refreshment and relaxation. Such circumstances are relevant to the voluntariness of confessions and will always be taken into account in decisions on this.

Further I have to say what I have said before, and will continue to say, that a confession is not a touchstone or measure of a sound prosecution case. What does make a good case for the prosecution on a criminal charge is good solid evidence from independent witnesses and a confession - which can always be challenged - is no substitute for independent evidence.

I turn now to the letter alleged to have been written by ‘Olivia to the Chief Superintendent of Police, Sinilau. ‘Olivia denies writing this but I am sorry that I find it difficult to believe her though I understand her embarrassment and reluctance to admit to it. She admits that the handwriting is similar and it is clear from its contents that the letter is only likely to have been written by her.

But as I have said a criminal trial is not some kind of conjuring show where the prosecution can produce surprises as if by magic. Nor is it war where the prosecution can ambush the defence. To ensure fairness to the accused, the prosecution are under a strict duty to disclose to the defence in advance not only all the evidence which they intend to use at the trial, but also any other relevant evidence which they have but do not intend to use.

The prosecution are doing their job in the public interest and are to act as ministers of justice assisting in the administration of justice, rather than struggling for a verdict against the accused at all costs.

This letter has been known to the Police since 16th October 1987 but a copy was only given to the defence on the second day of the trial. The Solicitor General submitted that the requirements on disclosure did not apply because the letter came from the accused but I do not accept that this alters the position - as is shown from the accused's challenge of its authenticity. What is more relevant is that it is not fresh evidence which has only just come to the notice of the Police - they have had it for 18 months.

In normal circumstances it might have been possible to adjourn a trial to give the defence a chance to consider newly produced evidence, but this is not a realistic option when the Court is on circuit and the jury have been sworn in and are in mid-trial.

It would be a breach of natural justice to allow the prosecution to produce the letter (and would probably afford the accused grounds for appeal if convicted) and I therefore rule that it shall not be admitted, nor is it to be referred to in evidence or cross-examination.

I have to add 2 further points. Firstly it seems that the proper person to produce a personal letter of this nature is Sinilau himself. Secondly I have serious doubts whether the letter amounts to any admission of the counts before this Court.

R M Webster

Dated 10th April 1989