Rex v Mahe [2012] TOSC 80; CR 218, 220 of 2010 (14 September 2012)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 218, 220 of 2010

REX

v

1.SIMIFI MAHE
2. KONA'I BLOOMFIELD

BEFORE THE HON. JUSTICE CATO

VOIR DIRE RULINGS

The applicants on the voir dire challenged the admissibility of records of interview and associated statements they had made which incriminated them in an armed robbery of the Cowley bakery at Nukunuku on the 18th June 2010, and associated counts. Both accused alleged they had been offered inducements to make their confessional statements and accordingly they were inadmissible under s 21 of the Evidence Act.

Kona'i Bloomfield

Mr Bloomfield alleges that he was offered an inducement by the officer in charge, Detective Sgt Panuve Fifita, who is no longer with the force.

Mr Niu, who acted for both applicants, in his opening before the evidence was called, said that the case for exclusion of the evidence involved an inducement made to Mr Bloomfield in the following circumstances.

Mr Bloomfield, who had earlier been interviewed by Detective Constable Vea on the 19th June 2010, which was a Saturday, had been extensively questioned and had not admitted to any involvement in the robbery. On Monday the 21st June, he had been brought before a magistrate where his children were waiting to see him. Mr Bloomfield was informed that their mother was coming to get us to go back to America. He told his son to tell mum to come and see him when she comes.

At that point, he was returned to the police station at Nukunuku. Having been initially at Houma where he was first interviewed by Detective Constable Vea, he had been transferred at some time after the Saturday to Nukunuku. Vea it seems was stationed at Nukunuku. Mr Niu said that his instructions were that an officer had said to Bloomfield later in the day we have released your car to be taken by a relative of Bloomfield's so that his wife could be picked up from the airport. He was informed his wife was in Tonga and wanted to see him. He said that Detective Sgt Panuve Fifita who was stationed at Houma told him his wife could not see him whilst he was there. He said if you confess, I will let your wife see you. Then, I will take you to the magistrate to see if he will release you. Mr Bloomfield wanted to be released so that he could contest her taking the children back to America.

Mr Bloomfield asked Detective Fifita if he could see her before he confessed and he had allowed this. Then, his wife came to him and she was angry. She asked whether he had confessed. He told her no. She said if you go to prison, me and the kids are going back to America. Bloomfield said he would confess and she said okay. When they left Vea came and he confessed.

At trial, however, it emerged after Detective Fifita had been cross-examined by Mr Niu and denied the allegations put to him, that the station diary recorded that his wife had come to the police station on the 22nd June 2010 after Mr Bloomfield had confessed on the 21st June. Mr Bloomfield had made incriminating admissions nominating Mr Mahe as the person who carried out the robbery and admitted he was part of that plan.

Detective Sgt Fifita did, however, admit that he knew Bloomfield's wife was coming from America for the children and had been told this by Bloomfield before he was taken to the magistrate on the Monday. He also understood Mr Bloomfield was concerned about his release so that he could challenge the fact that the children were to be taken.

Plainly, the questioning on the voir dire concerning inducements made in the presence of his wife on the instructions of Mr Bloomfield was at odds with what appeared later in the station diary when it emerged that Wendy Bloomfield had not come to the police station until the 22nd of June, 2010.

After the defence case had closed, Mr Bloomfield was called to give evidence. He did not repeat his earlier allegations and advanced evidence that was quite different. He said that on the Monday when attending court he had received information from his children that their mother was coming and that his cousin Sione Bloomfield had been present. Bloomfield was also related to Detective Fifita. Sione told the applicant that Fifita had told him that if the applicant was to confess then he was to release me and let me see my wife and kids. During the course of his evidence I put to Mr Niu whether this was put to Detective Fifita, and Mr Niu responded that it was not put because he did not know about it. Sione Bloomfield gave evidence to the effect that Detective Fifita had conveyed an inducement to him that if Bloomfield confessed he would be released. The accused Bloomfield said he had before making his confession, approached Detectives Fifita and Vea and made a confession after securing their confirmation of the inducement. He said he confessed because he wanted to see his wife and kids before his wife went back to America. Mr Bloomfield said he had only recalled the offer mentioned by Sione as a consequence of evidence given by Detective Finau during the trial about his being annoyed with Detective Fifita because the latter had been drinking with Bloomfield after he had been released. I did not find that explanation at all, however, credible.

I was informed that Detective Fifita has left the force and did not pursue this matter although had he been a serving police officer still I would have expected him to be recalled to explain his actions concerning drinking with suspects or relatives. The Crown did not recall Detective Fifita and Mr Niu was critical of this. I discuss this later.

Detective Vea was, however, recalled by the Crown with my consent about this matter and he denied knowledge of any such inducement being given. He said that he had not interviewed Mr Bloomfield on Sunday 22nd June because he was involved for most of the day on Church business, and had made further inquiries on the Monday before resuming the interview with Bloomfield. He said he had received further information concerning the occupants of the car Bloomfield had admitted to driving before he recommenced his interview with him.

I do not accept the evidence of Mr Bloomfield that Detective Fifita or Detective Vea, who was a police officer of over 20 years standing offered him inducements. I accept that for reasons which were confirmed by Detective Fifita, Mr Bloomfield wanted to be released to assume some kind of dialogue with his wife over the children, but I do not believe that any inducements were offered to him. Nor do I believe the evidence of Sione Bloomfield on this point. The evidence in my view was totally at variance with the earlier suggestions made to Detective Fifita by Mr Niu on his instructions at that time. The further evidence given at trial by the accused and his cousin amounted in my view to a belated attempt by the accused to produce another account of an inducement after his first version had been demonstrated to be unreliable.

Accordingly, my ruling is that I am satisfied beyond a reasonable doubt, that the admission and accompanying documents such as the voluntary statement and the charge sheet are admissible in the case of the accused Mr Kona'i Bloomfield.

Simifi Mahe

Mr Niu also opened his case with Mr Mahe alleging inducements were made to him in terms that were largely put to Crown witnesses and led in evidence by the defence. However, the defence failed to mention in opening a discussion which took place on the 24th June 2010; between allegedly Detective Finau and Mr Mahe in the presence of Mrs Mahe at the Houma police station when Mahe had accused Fianu of reneging on his deal to release Mrs Mahe early on the 24th June, 2004. This meeting which was supported by Mrs Mahe in her evidence was plainly a matter which Mr Niu was not aware of when the trial commenced because he did not put this to a witness who was allegedly present, Detective Vea, when he came to give evidence, before it was raised for the first time with Detective Finau who denied the allegation. If it were true I would have expected Mr Mahe to have raised the matter with his counsel much earlier than he did.

Mr Mahe also maintained inducements had been offered to him by Detective Finau. He had been arrested on the 21st June 2010. He was later interviewed by Finau that day and made no admissions. Later, he was interviewed by Finau on the 22nd June 2012 with a Detective Constable Takataka. He asked for a lawyer and one was provided. That lawyer advised him he was not obliged to answer questions but the police could continue to ask him questions. That advice in my view was only partly correct. If he had indicated he did not want to answer questions then he should not have been questioned further. Further questions were asked but Mr Mahe declined to answer them and the police did not continue with this interview. By that stage, the police had secured admissions from Mr Bloomfield on the 21st June 2010.

The fact that Bloomfield had implicated Mahe as the robber was also revealed to him as was the fact that the police had spoken with his wife but Mr Mahe made no response to these assertions. Had Mr Mahe made admissions in the face of this line of questioning and in the face of his repeated statements that he did not want to answer questions, I would have excluded any admission made as in plain violation of the privilege against self-incrimination. At one point, Detective Takataka told him plainly incorrectly that the police had sufficient evidence to charge him. Any admission made in relation to such a misrepresentation would also have been excluded as patently unfair because it was untrue. The evidence of Bloomfield in his confession could not be used against Mr Mahe, and at time there was no other evidence linking him to the robbery.

On the 23rd June, Mrs Teleseti Mahe was arrested and interviewed by Detective Finau. She confessed and implicated her husband in the offending. She also showed police where she had hidden the money her husband had given her. By that stage, Bloomfield who was still in custody had also entered into a re-enactment with police. On the 23rd June, before being taken to the magistrate for release, Bloomfield was taken by Detective Fifita to the Houma police station where in his presence, Bloomfield told Mahe he had confessed and had implicated him. Plainly, this was an attempt by Detective Fifita to induce Mr Mahe to confess. He did not show Mahe the statement of Bloomfield as he should have done under the Judge's Rules which still have some guideline value in Tonga. Mr Mahe, however, did not make any admissions. Mr Bloomfield was then taken for release by the magistrate as the Detective told Mahe he intended to do.

During the evening, of the 23rd Mrs Mahe and the police had returned to her home where she had a baby she was still breast feeding. After showing police where the money was hidden, she was taken back to the police station at Nukunuku I find with her baby. Later, she completed her record of interview, written statement of charges form and confessional statement. That appears to have been completed by 10.57 pm in the presence of Detective Finau.

There was a conflict of evidence as to whether she or Detective Finau suggested she should see Mahe who was at Finau after she had completed the relevant documentation late in the evening. Whether it was she who asked to go to Houma or Detective Finau I find that Detective Finau at the very least encouraged this meeting. Plainly, this was an attempt to get her husband, who up to that point had resisted various attempts to confess, to co-operate. At that point, whilst the money had been recovered, the police had not recovered the pistol. Mrs Mahe was due to come before the Magistrate the next morning. She was not however released until the 28th June 2010.

Detective Finau rang the Houma police station and spoke with Mr Mahe. There is a conflict of evidence as to what was said. Mr Mahe said that Finau told him that his wife had been arrested, the magistrate had ordered her to be kept in custody, and the three thousand dollars had been found, but this was denied by Finau who said it was Mr Mahe who told him this. In her evidence she appeared to admit this. More importantly, the allegation was made by Mahe that Finau told him his wife and child would be released if he confessed. Finau denied this. He said that Mahe had said to bring his wife to him for them to talk.

At that point, Mrs Mahe was it seems within ear shot. When she gave evidence, she said she heard Finau say, it is all right they will be in custody at the Nukunuku police station if he does not solve the problem that has happened. Under cross-examination, however, Mrs Mahe was questioned about what she said Detective Finau had told her husband and said Finau had not said "not solving the problem" but "she would be kept in custody if he did not confess".

She also said she had not discussed the evidence with her husband. When pressed on this by Mr Kefu she said "only small bits" but appeared to admit this included this conversation and apparently a later conversation at the Houma police station when, allegedly in her presence on the 24th June, her husband had accused Finau of reneging on the deal to release her after he had confessed. On that day, she had been brought by detectives Finau and Vea to Houma where some lunch had been secured. They all ate together and it was she said during this period that she heard her husband say these things.

As stated above, when Detective Vea gave his evidence he was not questioned about Mr Mahe's assertion and he was recalled by the Crown. He had some difficulty in recalling the occasion but certainly denied hearing any conversation of this kind. Detective Finau denied any such conversation. The essence of the complaint was that Finau had justified not releasing her because Detective Fifita had opposed her release until the 28th June. Detective Finau denied this but Fifita seemed to admit this was a reason for the opposition to her release on the 24th June. It was never put to Fifita however that he had overridden a desire by Finau to have her released on the 24th.

Mr Mahe said in his evidence that Detective Finau had in the presence of his wife offered them the deal that if he confessed she would be released. She did not, however, testify to this. Indeed, she agreed that she spoke privately to her husband. Had, as Mahe contended and Finau denied, this conversation taken place in her presence, it was one of such critical importance at the time to Mrs Mahe that I do not believe she would ever have over looked or have forgotten about this. For his part, Detective Finau had denied ever discussing this matter at any time with Mahe and he said he did not go into any room with Mahe and his wife present together. On this point, Mrs Mahe's evidence tended to support Finau's version rather than her husband.

Further, when cross-examined by Mr Kefu, significantly in my view when this question was put to her "isn't what happened you told Simifi to hurry up and talk so the two of you can be released to return to the children" she responded "yes and that was my thinking."

I have given close consideration on all the evidence on the issue as to whether Finau offered an inducement to Mr Mahe of the kind he alleged. I find that Detective Finau was hopeful in securing an admission or change of heart by Mr Mahe in allowing or encouraging the meeting late in the evening of the 23th June 2012, and that is why the meeting took place that evening. It is the obvious reason why he returned to Houma after taking Mrs Mahe back to Nukunuku. However, I am also satisfied beyond reasonable doubt, having heard his evidence and denials and that of Detective Vea, no inducement was made to the effect that if Mr Mahe confessed his wife would be released.

At that point, she had only been recently arrested and the gun or pistol had not been located. Detective Finau was not the officer in charge of the case, and as appears to be the case, it was Detective Fifita who was and in fact opposed her early release in any event. I consider that Mrs Mahe did her best to, support her husband's account but neither she nor her husband would I regard as reliable or truthful witnesses on the issue of inducements.

Having heard from several police officers, I am satisfied beyond any reasonable doubt that there was no inducement. Although there was an aspect of the evidence of Detective Finau which I find troubling that is that Mrs Mahe did not have a child with her at the station when the fact she did was confirmed by Vea who was at Nukunuku, I did not consider on the issue of whether Finau gave an inducement that his evidence was either false or unreliable.

Mr Kefu raised another point which was that the inducement threat or promise must relate to the charge as the section on its face states. He said that he was not able to find any case in which this point had been argued in Tonga. Section 21 refers to inducement threat or promise relating to the charge which on a literal reading does not encompass promises of a wider kind such as complained about here. I suggested to Mr Kefu could not the word "charge" include prosecution in a wider sense?

I adjourned the matter for both counsel to consider this point. Mr Niu contended that the words relating to the charge meant no more than the charge under which the suspect had been arrested and in that sense was consistent with the suggestion that I had made. He also said that it would be absurd if threats of violence were excluded from the section because they did not relate to a particular charge. Overnight, Mr Kefu produced R v Joyce [1957] 3 ALL ER 623 in the Court of Criminal Appeal. There, the issue was whether an assertion by a police officer "I need to take a statement from you" amounted to an inducement. The Court held it did not because it did not amount to an inducement relating to the "charge or accusation". In that sense the argument is not dissimilar from the suggestion put by Mr Niu that it relates to the proceedings consequent upon arrest and the commencement of possible prosecution, namely the accusation.

Mr Kefu tended to accept this and I indicated I preferred a liberal rather than a narrow or literal view of the provision, and I interpret the section to enable the exclusion of confessions made by threats, inducements or promises made in connection with the prosecution, and inducements to include offers of bail.

Mr Kefu said however that in his submission the alleged inducement that his wife would be released was collateral citing R v Lloyd [1834] EngR 619; (1834) 6 C&P 393, 172 ER 1291 and had no bearing on the prosecution or charge even in that sense. In Lloyd, the constable' promise was that the accused could see his wife if he confessed. The confession was held to be admissible. In R v Hammond [19651 NZLR 257, the accused was told that if he confessed he would be allowed to return home and he was assured he would be permitted to do so. The accused was facing a term of imprisonment on another charge and the judge considered he wanted some liberty before undergoing a possible term of imprisonment. Wilson J considered that Lloyd was distinguishable because the inducement there related to a collateral matter and had no bearing in relation to any action to be taken against the accused.

Mr Kefu contended that the alleged inducement here was collateral. It is to be noted that, at para 33640 in Cross "On Evidence", Australian edition, 1991 the commentary on Lloyd is that the report does not contain a full account of either the facts or reasons for the decision. The writers continue to say, "In some circumstances an inducement could be very powerful as where the wife was at death's door."

I consider that again a broad approach should be taken. Mr Mahe and his wife had 5 children with the youngest I find, contrary to the recall of Detective Finau, being at the time with her mother who was in custody on related charges. In these circumstances, were an inducement made to Mahe of the kind alleged, not only could it be said to relate to a step in the prosecution against he and his wife namely obtaining bail rather than remand in custody but given no member of the family was available to look after the children, it could amount to a powerful inducement. However, as I have said I find that no inducement was made by Detective Finau for reasons which I have given.

I should also point out that I have not overlooked Mr Niu's careful arguments in support of exclusion. In the case of both men he argued, and it was probably the high point of his argument, that they had for some time maintained their innocence and their change of heart as a matter of commonsense could have been derived only as a consequence of inducement. He attempted to diminish the change in allegation of Mr Bloomfield by suggesting rather generously I thought for his client's position that the error was attributable to the shortness in time he had to prepare since receiving instructions.

It is plain, however, even taking recent instruction into account, that Bloomfield had given him an account which Bloomfield must have known was wrong. Bloomfield, since his arrest in June 2010, has had a very long time to consider his position. I do not accept this submission, and I do not agree that the prosecution in these circumstances required recalling Detective Fifita to enable the second version to be put to him.

As to Mr Mahe, Mr Niu's careful argument based again as he submitted on commonsense was that he had resisted strenuous attempts to get him to confess and would only have confessed if an inducement had been made. However, that is to overlook or put to one side the evidence of Mrs Mahe under cross-examination by Mr Kefu "isn't what happened you told Simifi to hurry up and talk so the two of you can be released to return to the children", and she responded "yes and that was my thinking."

Whilst I consider the police were only too willing to encourage a late night meeting hopeful that Mr Mahe would confess when all else had failed, it does not necessarily follow that an inducement must have been offered to Mr Mahe by police before he confessed. Both Mr Mahe and his wife had an obvious reason to support the claim to an inducement and that was to avoid a telling confession by Mr Mahe to armed robbery. Having heard both of their evidence and the evidence of Detective Finau and other officers, I am satisfied beyond doubt that no inducement was made that Mrs Mahe would be released the next morning if her husband confessed. Accordingly, I reject the exclusion of the confession of Mr Mahe consequent upon an inducement. I refer to previous authorities in Tonga on the principles to be applied and in particular that I must be satisfied beyond any reasonable doubt that no inducement was made and the confession was voluntary. R v Pohahau [2005] Tonga LR 363.

There remains one argument concerning Mr Mahe and that is whether I should exercise my discretion to exclude the confession on the grounds of general unfairness pursuant to s 22 of the Evidence Act. Mr Niu did not rely on this ground but Mr Kefu when arguing the meaning of inducement in s 21 pointed out that, although inducement had a narrow application under s 21, the court still had discretion to exclude on the grounds of unfairness. In other words, were I to decide that the police conduct was so unfair as to amount to oppressive behaviour I could exercise my discretion in favour of exclusion.

Whilst I consider that the efforts made by Detective Finau were intended to psychologically influence Mr Mahe to confess after earlier attempts had failed, the matters that persuade me not to exercise my discretion to exclude are these. The offence was serious involving an armed robbery and the production of a pistol. The police had secured admissions against Bloomfield and Mrs Mahe and had located the money or part of it at the Mahe residence. The pistol however had not been located. As Mr Niu and Mr Kefu both agreed, the police have an obligation to investigate and if possible bring offenders to justice, and this was a very serious crime. Further, as Mr Kefu candidly agreed, even though I could reasonably draw the inference and I do that, after all other attempts to secure a confession from Mr Mahe had failed, the meeting was one which Detective Finau acceded to, if not instigated, Mr Kefu contended the confession should not be excluded because there was nothing oppressive or otherwise unlawful about what had occurred.

I agree with Mr Kefu. In this case, the police's actions were not oppressive as they were found to be by the Court of Appeal in Wilson [1981] 1 NZLR 316 where a Maori youth was persuaded to confess by the introduction of a Maori police officer to interrogate him over a lengthy period involving a plea to his Maori culture after he had formerly denied his involvement. Another case involving an Aboriginal youth held improperly in custody and oppressively to secure admissions was R v Forster [1993] HCA 80; (1992) 113 ALR 1, a decision of the High Court of Australia.

Mr Mahe however was an adult aged 33 at the time of the interview and married with several children. He had spent a large part of his life in America including school and for a short time was a college footballer although he said he could not continue with this because he said he failed a grade point average. He well knew his rights. He had had access to a lawyer who had advised him of his right to silence, and he had the fortitude to have not made any admission in the face of an earlier confrontation with Bloomfield at the police station. His meeting with his wife at Houma was short and in private. Although late in the evening, her interview was not completed until late that evening. It could not be more natural than spouses having several children would want to confer and discuss their future and what to do where both were under arrest. There was nothing coercive about the police conduct although it could fairly be described as opportunistic. Accordingly, I reject any argument that I should exercise my discretion in favour of rejection of the evidence. The inference that I draw from all the circumstances is that when Mr Mahe saw his wife in private and she prevailed upon him to confess he did so because he knew the police had the full story, and acceded to his wife's entreaty.

Finally, this application which was foreshadowed late after Mr Niu had received instructions has taken up several days of court time. As a consequence, another serious trial has had to be considerably delayed. Had the confessional statement included a passage relating to inducement threat or promise been included and signed to by the accused much of this could have probably been avoided. For over twenty years courts elsewhere have insisted on electronic recording of police interrogations so that the process of securing admissions or confessions is transparent and beyond reproach. In some jurisdictions in Australia it is mandatory for this to occur or else confessions cannot be admitted in evidence. It is essential that there be transparency in the interview process. Where electronic recording takes place the incidence of challenged confessional evidence is reduced. The cost of and design of equipment has been reduced and refined. It is an integral part of modern policing today in many jurisdictions intended to protect both the police from allegations of improper conduct and a suspect in custody from improper questioning and or other unfair police conduct. In this regard, I mention the words of Lord Justice Lawton in R v Turner (1975) 61 Crim App Rep 67, at 76-77 urging that something be done to reduce the incidence of challenges to admissions, and add transparency to the process. Those words were heeded and the new age of electronic recording came about.

Also, I note that it is approaching a century, I was informed by Mr Kefu, since s 21 and s22 of the Evidence Act were first enacted in Tonga. In New Zealand and in England, there has been extensive reform of the evidence relating to confessions and a closely related subject of unlawfully or illegally obtained evidence. In my view, it is a subject worthy also of consideration for reform here.

I accordingly admit the records of interview, the charge sheet and the confessional statements made by Mr Kona'i Bloomfield and Mr Simifi Mahe into evidence. They are to be suppressed from publication in every respect until the proceedings in relation to each accused have been finalised.

JUDGE

DATED: 14 SEPTEMBER 2012