R v Langi [1990] TOSC 7; CR 013-014 1989 (19 March 1990)

SUPREME COURT OF TONGA

CR 13-14/89

R v ‘OKALANI LANGI

19.3.90

RULING ON ADMISSIBILITY OF CONFESSION

The accused has challenged the admissibility of the record of interview, charge and answer, and statement, all dated 23rd October 1989.

I emphasise that this is the sole question with which the Court is dealing at present. The Court is not concerned with the truth of the confession at this stage.

There has been evidence from the Police officer who took statement, the witnessing Police officer, and the accused himself.

Under the law of Tonga and section 21 of the Evidence Act:

“No evidence shall be given of any confession in any criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise relating to the charge and proceeding either from the prosecutor or from some person having authority over the accused person and sufficient in the opinion of the Court to afford the accused person reasonable grounds for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in regard to the proceeding against him ... .”

The principal objection of the defendant to the confession is that before he made it or answered questions the statement of the complainant ‘Isileli Palu was read out to him or at least he was told what ‘Isileli had said against him and this induced him to make the confession.

However to argue that is to try to use section 21 partially without taking it all into account.

What section 21 stops is a confession where there was inducement which gave the accused reasonable grounds for supposing he would gain an advantage or avoid an evil and no evidence from either prosecutor or defence has emerged of likely advantage or evil.

There has been no evidence that the accused was forced to sign; was threatened to make him sign; was suffering from being in custody for about 30 hours (he had been to a Magistrate); was affected by custody; nor was suffering from lack of food. Threats or force were unlikely here, because the witness PO Mafua was a long time friend of the accused.

Nor was there any evidence that the accused was told he would be released if he confessed - on the contrary he was remanded in custody by the Magistrate later that morning (to prison on the Police request) for a further 8 days.

On the contrary the accused confirmed that nobody made him sign. So I find that there was no inducement within the terms of section 21.

I have to say I believe it is a very fair practice to make it clear to an accused what the Police know – it discourages any tricks.

A fairly similar case was R v Rennie [1982] 1 All ER 385 (CA) where the Police told the accused before interview of what they knew against him. Here is what the Chief Justice of England said (at p 388 h):

“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person [in authority]. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they may be able to bring both their interrogation and their detention to an earlier end by confession.”

and at p 389 e:

“How, in particular, is the judge to approach the question when these different thoughts may all, to some extent at least, have been prompted by something said by the police officer questioning him.

.... [the judge] should understand the principle and the spirit behind it [the law] and apply his common sense; and, we would add, he should remind himself that “voluntary” in ordinary parlance means ‘of one’s own from will’ “

Doing exactly that, it is quite clear that ‘Okalani’s interview, answer to the charge and statement were voluntary and may be admitted.

Knocking on the cell door was not necessary.

Now under section 22 of the Evidence Act a confession made in custody to a police officer in answer to questions by him may in the discretion of the Court be refused.

This Court previously laid down the test which should be applied in exercising that discretion is that in section 76 of the English Police & Criminal Evidence Act 1984: see R v Pailate [1989] Tonga LR 109 (120/88); R v Fainga’anuku 38-67/88. That test is in essence that the prosecution must prove beyond reasonable doubt that there was no oppression; and that nothing said or done was likely to render the confession unreliable.

In view of the evidence of the 2 Police officers and particularly the accused there were no circumstances in what was said or done to make it unreliable. The only piece of unreliability is that the accused said he was drunk that night and didn’t remember a thing, but that goes to the evidential value of the confession rather than its admissibility.

I believe for admissibility purposes the confession is reliable for the reasons already given re section 21. I am satisfied that the accused was arrested on reasonable grounds (ie statements at the time from the complainant and his mother); that there were probable grounds for holding him in custody beyond 24 hours (although I make no finding on that); and that in any event when he gave the statement he was being held in custody on the order of the Magistrate.

I have given some consideration to whether the prosecution cross-examination of the accused on the confession might be said to be questions as to the truth of the confession and it is possible it might be. I refer to Archbold (43rd Ed) para 15–34 and the case of Wong Kam Ming v The Queen [1978] UKPC 34; [1979] 1 All ER 939 (PC) where the Privy Council in London held that cross-examination by the prosecution in a trial within a trial on the truth of a confession was a substantial irregularity in the trial causing the conviction to be quashed. While according the greatest respect to the Privy Council that case is not part of the law of Tonga or even the law of England and I note that Archbold 15–54 states that it is at least open to argument that the truth or otherwise of a confession may sometimes be relevant to its admissibility, following the reasoning of Lord Hailsham in the dissenting judgment in Wong Kam Ming.

I therefore do not accept that it is part of the law of Tonga that prosecution questions to an accused during a trial within a trial should nullify the entire trial.

I therefore decline to exercise the discretion under section 22, and I allow the record of interview, charge and answer and confession as admissible, pointing out again that this still leaves open the question of their evidential value or weight.

R M Webster,
Judge of the Supreme Court.