Rex v Tongatu'a [2013] TOSC 2; CR102, 103 of 2012 (25 January 2013)

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

REX

V

1. LISIATE TONGATU'A
2. TAHIUA TONGATU'A
   

BEFORE THE HON. JUSTICE CATO

Ms 'Atiola for the Crown
Mr Tu'utifaiva for the Accused

RULING ON THE VOIR DIRE.

[1] The voir dire was held at the commencement of the trial of the accused Lisiate and Tahiua Tongatu'a, who were aged 16 and 13 at the time of their arrest on the 4th April 2012 for house breaking and theft of a neighbour's residence. The trial was originally set down for a week's hearing before a Judge without a jury. It took four days of hearing evidence before I ruled that records of interview that the brothers had entered into were inadmissible. I had informed counsel that I did not need to hear any further defence evidence before making my rulings. As a consequence, the prosecution indicated it would not proceed further and the charges were dismissed.

[2] The brothers initially stood trial with their mother who had been charged with receiving stolen property namely the proceeds of the alleged theft. When the matter first came before this Court after committal, their father had been also been charged with receiving. Shortly, after appearing before this Court the charges against him were dismissed, the Crown offering no evidence. It is of concern that the Crown did not take the same approach with the mother. It is unsatisfactory that she remained in jeopardy for so long, after it seems plain that proceedings should have been discontinued against her also on the grounds of insufficiency of evidence.

[3] I record also that when this case first came before me, Lisiate had been remanded in custody for a considerable period. A condition of his being granted bail by a Magistrate was that he had a surety. He had been unable to obtain a surety probably because at that stage his parents had also been arrested and all were committed to this Court for trial. When he came before me I expressed my concern that a person of his age had been denied bail because he could not obtain a surety. I immediately granted him bail without a surety.

[4] It is important that young offenders be granted bail unless there are very good reasons why bail should be declined. Police stations are inadequate for remanding those charged with offences for anything but very short periods.

[5] Serious consideration by Magistrates must be given before making bail conditional upon a surety being obtained especially in the case of young offender. Inquiry should be made, in any event, whether a surety is a practical option, rather than, as here, allowing a young person to be remanded in custody until a surety is found. Remanding young persons in custody may expose them to experienced criminals as well as being psychologically injurious. In this case, the practical effect of the remand was that Lisiate spent a lengthy period in custody when it is unlikely that he would have been sentenced to imprisonment as a young offender had he been convicted of the offending.

[6] In this case as the evidence unfolded on the voir dire, I became very concerned that the brothers had not been afforded such protection as the law requires under s 116 of the Police Act 2010 before making incriminating admissions. Various objections had been taken by Mr Tu'utafaiva, a very experienced defence counsel, in his detailed opening statement at the commencement of the voir dire, on the first day of the trial. It was alleged by him that that the brothers had been exposed to interrogation prior to being brought before a Magistrate under section 116 of the Police Act. Further objections were made to the manner and practice of interview and very serious allegations of police brutality and inducements by police officers who he named in his opening.

[7] After four days of evidence, with the Crown evidence on the voir dire concluded and the defence having called the elder brother, Lisiate, I indicated that I did not require hearing further from defence witnesses Tahiua, and his mother. I gave brief oral reasons for my decision that the records of interview on the 21st January 2012 would be excluded but indicated that I would enlarge upon those reasons in a written judgment.

Sections 115-116 of the Police Act, 2010.

Section 115 of the Police Act 2010 provides;

(1) A police officer, without warrant, may arrest a person whom the police officer believes, on reasonable grounds;

1. is committing an offence
   
2. is about to commit and offence:or
   

100. has committed an offence .
     

(2) The police officer may, without warrant, enter any property, vessel or vehicle to make an arrest.

(3) The police officer shall inform the person;

1. that he is under arrest; and
   
2. of the nature of the offence for which the person is arrested.
   

Section 116 provides a procedure after Arrest.

(1) A person who is arrested under section 115 shall be brought before a Magistrate, or if there is no Magistrate in the district, before the officer in charge of the police station, to be charged as soon as practicable after being arrested and no later than 24 hours after being arrested.

(2) A police officer may, before bringing the arrested person before a Magistrate, ask the person any questions the officer thinks are appropriate in order to determine whether or not the person should be brought before a Magistrate.

(3) If a person is not brought before a magistrate or the officer in charge of the police station, and charged, in accordance with subsection(1) the person shall be released unless ordered otherwise under the Bail Act by a Magistrate, or if there is no Magistrate in the district by the officer in charge of the police station.

[8] The purpose of sections 115 and 116 is to ensure that persons under arrest are advised as to the reason for it and are not detained for a period longer than is practicable after arrest. The protection of a citizen against excessive and intrusive police action has been an approach consistently followed by Courts here and elsewhere with some modification since Lord Atkin in Liversidge v Anderson [1941] UKHL 1; [1941] 3 All ER 338, at 360 stated that an arrested person "must be at once brought before a judicial tribunal."

[9] Here, the police had certain information which meant that they were not at risk of arresting the wrong suspects and had reasonable grounds it seems for doing so. It was not the prosecution case that the questioning was permitted by s 116(2) in the absence of the brothers being taken before a Magistrate. The prosecution case was that the brothers had been taken before a Magistrate and he had remanded them in custody before they had been interviewed.

[10] Mr Tu'utafaiva referred me to case of R v 'Esala Mafi No 69/200 18th March 2005, in which Webster CJ referred to a number of authorities on the earlier provision relating to arrest without warrant under section 22 of an earlier Police Act which had provided that a person arrested had to be brought before a Magistrate without delay. Webster CJ referred to a number of leading authorities of the Tongan Court of Appeal on this point including Fifita & Edwards v Fakafanua [1998] Tonga LR 127. The Court of Appeal there considered unnecessary delay meant "as soon as practicable", an expression which had been used in an earlier Police Act, and appears to have been resurrected by its later inclusion in the 2010 Act in preference to "unnecessary delay" although for practical purposes the expressions have been said to be synonymous.

[11] The Court of Appeal, however, stated at p 134 that "there is no warrant for reading the provision as if it referred to the practicability of interrogation." The Court observed;

"In our opinion, it is not right to say that no questions may be asked by police about the offence of which an arrested person is suspected. A few simple questions may resolve some doubt, and even lead to an immediate release of the suspect. But the safeguard requiring that the arrested person be brought before a magistrate without unnecessary delay is primary and must be fully observed."

[12] In this case, the officer in charge of the case, Lance Corporal Taufa, testified that the two brothers had been brought before a Magistrate who had remanded them in custody on the 4th April, 2012 and it was only after that that they had both been separately interviewed on the 5th April 2012. These interviews commenced at 9.30 in the morning of the 5th April. Later, the younger brother, Tahiua, had been further questioned by LC Taufa essentially repeating the information contained in the record of interview of the 5th April. Both brothers engaged in a demonstration later. In both interviews which took place at the Nukunuku police station a third party acquainted with the brothers was present.

[13] It became apparent towards the close of the first day of the voir dire, after cross-examination of LC Taufa, that the objection raised by Mr Tu'utafaiva that the brothers had not have been taken before a Magistrate before being interviewed on the morning of the 5th April was seriously in issue. LC Taufa had been quite certain in his evidence that summonses had been prepared for them after they had been taken to the Nukunuku police station and, although he did not take them before a Magistrate, he confirmed that they had been taken to the Central Magistrates' Court in Nuku'alofa on the 4th April where orders were made remanding them in custody.

[14] I inquired of the Crown whether there existed a record in the Magistrates' Court of orders that could establish precisely when it was the brothers had been taken before a Magistrate. The next morning, the prosecution indicated that it had not been possible to secure such information from the Magistrates' Court, but that the Nukunuku police station cell book had been produced. Evidence was given by LC Taufa that the handwriting was that of police officer PC Penitani who evidence confirmed was on duty on that date, and in fact that night.

[15] The cell book was brought to the Court although it was not formally produced. The evidence of LC Taufa is as follows;

"This is the Nukunuku police station cell book, everyone that is submitted to the station by a Magistrate is to be kept in custody is recorded here. The entry number 51 of 2012 of the 4th April 2012, officers who conducted the arrest was LC Taufa and PC Tu'ipulotu; the officer in charge was IP Leone, the arrested individual was Lisiate Tongatu'a from Mapelu, 16 years old reference from the station dairy 16.05 hours the crime that he is arrested for is housebreaking and theft; this here is an order made by Mag Similoni Tu'akalau. Lisiate Tongatu'a is to be kept in custody until the 10th of the 4th 2012, but if all proceedings are completed by tomorrow then he is to be brought with sureties. On the 10th April 2012, Magistrate Salesi Mafi ordered that he be remanded until the 12th April 2012."

[16] LC Taufa, who had been a police officer and member of the Criminal Investigation unit for many years, had said initially that the order had been given by the Magistrate at 16.05 hours. He also referred to entry 52 relating to the younger brother Taihua as being basically the same for Lisiate. Under cross-examination, LC Taufa said that PC Penitani made the entry and was on vacation.

[17] He was then asked whether the reference to the time 1605 hours (which was said by Taufa to apply to both brothers) was the time of the order or when the entry was made. His response was that time 1605 hours was when Tahiua was brought with his order back to the police station. This prompted Mr Tu'utafaiva to observe that the order made by the Magistrate must have been at an earlier time. LC Taufa confirmed that for Tahiua the same time entry of 16.05 was made as for his brother.

[18] Further, he said that the prosecutor who had carriage of this matter and had taken the brothers before the Magistrate was a Sgt Fifita. LC Taufa said he had not taken the brothers to the Magistrate but that another officer Inspector Leone who was in charge of the station had also been involved with Fifita in this matter. Neither Sgt Fifita nor Inspector Leone, (the later against whom some serious allegations of misconduct were raised by Mr Tu'utafaiva) were called to give evidence.

[19] It is unsatisfactory that LC Taufa, as the officer in charge, appears to have made no entry in his investigation diary of the time when the brothers were taken before a Magistrate or when they were returned to the station after the Magistrate had made the order for their remand in custody; nor on his own admission were these important matters recorded by anybody in the station diary which records steps in an investigation.

[20] It is very important that records be kept of times when those under arrest enter and leave police stations and their movements. It is of even greater importance that accurate records be kept where juveniles are taken into custody. I find it concerning that no records appear to have been kept aside from the cell book record to substantiate the movements of brothers into and out of the Nukunuku police station, on a matter as important as compliance with S 116 of the Police Act.

[21] Even more unsatisfactory is the fact that the investigation dairy established that it was not until 16.40 hours that Tahiua had been arrested. He had not been arrested at the same time as his brother but some time afterwards. In both cases, LC Taufa was involved with the arrests. The fact he was arrested at 16.40 was confirmed by LC Taufa as entry 11, 16.40 hours. This point was not lost on Mr Tu'utafaiva who asked whether the entry in the cell book was made in relation to Tahuia at a time when he had not yet been arrested. LC Taufa's only response was that both brothers had been processed together at the station for summons and he must have got his time wrong. The witness admitted to the Court the inconsistency in the timing.

[22] Mr Tu'utafaiva then suggested that the entry made by Constable Penitani in the cell book must have been a fabrication. I suggested that that was a serious allegation to make and Mr Tu'utafaiva appeared to withdraw this. However, as the evidence continued, the question seemed appropriate. In this regard, I note that in 'Esala Mafi, Webster CJ considered an entry also in a cell book that purported to confirm that a suspect had been taken before a Magistrate was fictitious.

[23] I asked the prosecution where Constable Penitani was and I was informed he was on vacation in Ha'apai. I asked whether it was the intention of the prosecution to call him. He was not, however, called and I would, in all the circumstances, have expected every effort to have him recalled from Ha'apai. There was plenty of time in the case for him to be called to give evidence, including a weekend, before the case terminated on the following Monday morning. No explanation was provided for his absence aside from the fact he was on vacation in Ha'apai.

[24] The matter became of even greater concern when a second officer Constable Vahafolau Taufa, who had interviewed Tahiua on the 5th April, gave evidence. He had been a police officer for about thirteen years. He had been working in CIU for nine years. He said that he arrived at work on the 5th April 2012 and saw Tahiua outside the prison cells at 8am. He had been kept within the police station after arrest but outside the cells. He said, importantly, that he had been with LC Taufa when Tahiua had been arrested at his home. He said that he arrested him at 16.40 hours. He said that Tahiua was kept in custody to be brought before the Magistrates' Court on the 5th April. He said that he was not brought before the Magistrates' Court on the 4th because it was closed. He said that Tahiua was taken to the Magistrates' Court with his brother, he thought, early the next day. He said he was not present when they were taken before a Court but he believed that it was on the 5th April in the morning. Further questioning of him revealed that his belief was based on the fact that he knew an arrested suspect had to be taken before a Magistrate before "we complete their paper work", and assumed this had been the case. He had, however, no actual knowledge of when the brothers had been brought before a Court.

[25] Lisiate gave evidence that he was arrested by LC Taufa he thought about 2 or 3 pm in the afternoon of the 4th April. He did not see his brother until the morning after. He had spent the night in the cells. He was not taken to see a Magistrate until later that day on the 5th April when he was taken there with Tahiua and seen by Chief Magistrate Mafi. He said he remained in custody for a month. He and Tahiua had been separately interviewed at the Nukunuku police station before being taken before the Magistrate. The time both interviews commenced was confirmed as 9.30 am.

[26] At the time the Court adjourned for the weekend late on the Friday, the Crown case was in severe difficulty on the issue of whether the brothers had been taken before a Magistrate before being interviewed. The evidence of Lisiate that he had not been taken before a Magistrate on the 4th April was supported by the evidence of Constable Vahafolau Taufa who had confirmed that Tahiua had been arrested at 4.40 on the 4th April and that it was too late for him to have been brought before a Magistrate. He said the last time he saw him was at the station on the 4th April was about 5.15.pm. He went home at 6pm. Constable Taufa said he went on duty on the 5th April at about 8.30 am. He gave evidence that he had spoken with LC Taufa before interviewing Tahiua. He had seen Tahiua outside the cells on his arrival at the station. There was no evidence that the brothers were taken to the Magistrate's Court early on the Saturday prior to the interviews commencing at 9.30 on the 5th April. In any event, any such suggestion by Constable Taufa was not only surmise but was in conflict with Constable Penitani's note that they had been remanded by the Magistrate prior to 4.05 pm on the 4th April when they had been returned under order to Nukunuku.

[27] Although Mr Tu'utafaiva indicated that he intended to call both Tahiua and the boys' mother as witnesses on the voir dire, I reflected on the matter over the weekend. By then the Crown had closed its case on the voir dire and Lisiate had given his evidence. After the Crown had indicated it had no further evidence to call on the Monday morning, I indicated to Mr Tu'utifaiva, that unless he wished to call further evidence, there seemed little point in proceeding because the evidence as to when the accused had been taken before a Magistrate was so disparate and so very unsatisfactory that I was not satisfied on any standard that there had been compliance with the provisions of s 116 of the Police Act. It followed that the brothers had been questioned in breach of this provision.

[28] Provisions which authorize the detention of a citizen must be strictly construed. Williams v R ( 1986) 161 CLR 678, at 297. Still greater is the need for proof of compliance in the case young persons under arrest. It was for these reasons, that I ruled that the admissions in the records of interview of the 5th April 2012 should be ruled inadmissible. The Crown simply had not satisfied me that the brothers had not been illegally detained for interrogation.

[29] I record that I am very concerned about the authenticity of the entries in the cell book made by Constable Penitani, in the face of the evidence I have heard. I am concerned further that no attempt was made it seems to have Penitani called, nor evidence from officers such as Sgt Fifita or Inspector Leone who, as the officer in charge of the station, may have been able to advance the matter. They were not called and nor was any explanation advanced as to why they were not called to give evidence on such a fundamentally important issue.

Other matters of Objection

[30] I will now deal with certain of the other objections which troubled me. I do not propose here to deal with all the objections raised by Mr Tu'utafaiva, but only those which caused me real concern.

[31] In the case of Lisiate, LC Taufa also admitted that he had questioned Lisiate on the 4th April without any third person present concerning the whereabouts of the property that was stolen. That was prior to his interview on the 5th April where a person known to Lisiate, Sione Taufa was present. He was not related to the officer in charge.

[32] During the course of his evidence, the issue of the presence of a third party at police interrogations where young persons have been arrested and are suspects was considered. The Court was informed that the requirement of a third party, being usually a relative or acquaintance of the suspect, is not a matter regulated by any legislation or formal police instruction but is a practice which has developed, appropriately, in my view, as part of Tongan policing.

[33] In this case, I consider it was also unsatisfactory that LC Taufa had spoken with Lisiate about the alleged crime on the 4th April to obtain information about the whereabouts of stolen property without a third party being present. Further, this discussion with Lisiate was not the subject of any note by LC Taufa. That also was unsatisfactory. Although Lisiate in his evidence denied any discussion on the fourth with Taufa, I accept there was one. Not only the discussion which LC Taufa said lasted for about 20 minutes should it not have been undertaken before Lisiate had been taken before a Magistrate under s 116 of the Police Act, but it should not have been undertaken without a suitable third party being present. The absence of any note as I have said is a serious omission also.

[34] He also gave evidence that he had conducted a second formal interview with Tahiua without any third party present, during which he wrote out Tahiua's explanation and later asked him to sign the document. This was after Tahiua had made admissions on the 5th April where a third party acquaintance of Tahuia's, a Mr 'amanaki Manu was present.

[35] I found it unsatisfactory that LC Taufa chose to interview these suspects without offering them the chance to have a third person present when he knew full well that Tongan practice required such a person to be questioned in the presence of a third party with whom the suspect was familiar. I formed the view that LC Taufa adopted an approach to this issue which was convenient and expedient and this was inconsistent with the approach that he knew well he was required to adopt. I could not understand in any event why he chose to interview Tahiua on a second occasion after the latter had made fulsome admissions. I would not have been prepared to admit any admissions secured in such circumstances on the grounds that they breached police practice and in fairness.

[36] It is well accepted today that the police station is an inherently coercive atmosphere for suspects, and particular care has to be taken to ensure that admissions made are reliably recorded and the process has integrity. The presence of a third party known to the suspect removes some of the coercive aspects of interrogation, and enhances transparency in the absence of an interview being electronically recorded. There have been many instances documented of false and unreliable confessions being made by suspects in police custody including young offenders. In my view, legislation and or standing orders or instructions should be promulgated to govern police interviewing practice in Tonga. This will ensure that police officers know clearly what standards they have to meet.

[37] In this case, in regard to the interview of Tahiua on the 5th April, Constable Vahafolau Taufa's evidence was that he had, after recording the questions and answers, simply given the document to Tahiua to sign each question and answer. On the whole, although I found Constable Taufa a forthright witness, I was concerned that he had not satisfied himself that Tahiua aged 13 at the time was able to meaningfully read the questions and answers he had recorded before signing the record in the various places he did. His answers to questions posed of him are instructive of the concerns I had.

"All right, did you at any stage invite Tahiua to read the question and answer?

When I gave it to him to sign, it was for him to read.

You didn't read it to him?

No

Before you asked him to put his mark or signature against any question and answer which is the procedure to my recollection is that right?

Yes

Did you ask him to read the question and answer before he signed it?

No

Did you take steps to satisfy yourself that this young man of 12 years at the time or 13 years was able to read your handwriting?

No

Did you tell him before he signed the document in any place did you ask him "is what you have written there truthful and accurate account?

No

So really, the true position you were simply insuring that his signature was on that document and in various places without advising him of the importance of placing his signature on the document?

Yes

That's really what you were determining to get was his signature and you didn't bother to tell him or ask him if his statement was truthful and accurate, isn't it.

No

Well, what did you say to him? Have you got a note of what you said to him?

No."

[38] Where a young person is being interviewed more is required of an interviewing officer. Handing a document to a suspect to read does not mean that the suspect can or has in fact read it where the writing is not the suspect's. The fact that the third party gave evidence that Tahiua had the document for some time to read, is not evidence either that he in fact read it or could read it, and the witness accepted that. The interviewing officer must first ascertain that they are able to first read the questions and answers recorded and secondly that the suspect understands the importance of signing the answers.

[39] Lisiate had a very limited education. LC Taufa understood this and read the questions and answers to him because he could not read them himself. I would have excluded the admissions of Tahiua of the 5th April also on the ground that I could not be sure that Tahiua had read the questions and answers or understood the importance of placing his signature against them, and in those circumstances to admit the record of interview would have been unfair.

[40] Both Lisiate and Tahiua complained of serious assaults being perpetrated on them by Inspector Leone at the police station. These amounted to punching Lisiate to the ground after he had been arrested and taken to the station. In relation to Tahiua it is alleged he hit him with a stick. Both incidents are alleged to have occurred before the brothers made records of interview on the 5th April. Both indicated they were told they must tell the truth and I infer from this co-operate.

[41] Lisiate complained also that late on the evening of the 4th April he was burned on the face by constable Penitani, with a cigarette I infer also in an effort to intimidate and impress upon Lisiate the need to co-operate. In the case of Lisiate, I do not overlook the fact that Sione Taufa, the independent witness with whom Lisiate was well acquainted, gave evidence that he did not see any burns. Nor he said was complaint made to him. Lisiate gave evidence that he was scared to say anything and only told his mother later.

[42] I do not think it is a complete answer to the allegation that the burn, if any, went unnoticed by the independent person Sione Taufa, nor is the fact that no complaint was made to him. What concerns me is that neither Inspector Leone nor Constable Penitani were called by the Crown to defend these very serious allegations which had been clearly outlined by Mr Tu'utafaiva in his opening on the Monday morning. As I have said I do not consider the mere fact that Constable Penitani was on vacation in Ha'apai, an hour's flight to Tongatapu, was any excuse for him not to give evidence about such important matters. Every effort in my view should have been made to secure his attendance to give evidence before this Court, and defend such a serious allegation.

[43] Similarly, with Inspector Leone who was at the time in charge of the Police station at Nukunuku. Inspector Leone also should have been called by the Crown on the issue of the assaults. No explanation was provided as to why he was not called. As the officer in charge of the case and an experienced police officer, I would have expected LC Taufa to have taken steps to secure the attendance of both Constable Penitani and Inspector Leone to answer these allegations and also enlighten the Court concerning the issue of the s 116 remand.

[44] Although allegations of brutality against police officers are easily made and may have no substance, courts must always be vigilant to ensure that allegations involving particularly violence on suspects in custody are taken very seriously. In Wong-Kam Ming v The Queen [1980] AC 247, at 261, Lord Hailsham said in the Privy Council;

"...any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements but, also, and perhaps mainly because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra- judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary."

[45] It is difficult for a court when the alleged perpetrator is not called to defend the allegations. Even more concerning it is when those allegations have been made by young persons under arrest. I found so unusual the allegation of Lisiate involving the use of a cigarette, that I remain concerned. Nor could I say that I found him plainly unreliable in his evidence. By not calling witnesses such as Constable Penitani or Inspector Leone, the Crown runs a serious risk that adverse inferences will be drawn and that a record of interview will be ruled inadmissible because the Crown has not discharged the onus of proving beyond doubt that the confession was made voluntarily. In view of my earlier rulings I do not have to make a finding of fact in relation to these allegations, but I express my concern that the police officers did not give evidence. Had it been required of me I would for the reason that the allegations have gone unanswered have been inclined to have ruled the records of interview inadmissible on the grounds that the Crown had not discharged the onus of proof.

[46] Both Lisiate and Tahiua made allegations also that the interviewing officers had threatened them at the commencement of their interviews. Tahiua's allegations were made through counsel because the hearing was concluded without his giving evidence. Both interviewing officers denied any improper inducement in the nature of tell the truth or your mother will be arrested, and the third persons did not recall any such a threat or inducement. In view of the other rulings I have made, I do not have to make any finding on this subject. However, I do not necessarily regard as conclusive the fact that the third persons did not recall these matters. An inducement may not have triggered concern in a lay person, and, in any event, over six months has passed since the interviews. A better protection in my view would be to include a question relating expressly to threats or inducements or violence in plain and simple terms at the end of the record of interview. Nor does it come as a surprise that no complaint was made by either brothers of misconduct to a third party when the interviewing officer was present. Neither Mr Taufa nor Mr Manu were invited to confer in private with the brothers; and nor were Lisiate or Tahiua invited to confer in private with Taufa or Manu before the interviews commenced.

[47] Of concern also, was that during the course of his evidence, LC Taufa was asked by me whether there had been any fingerprints taken from the louvers that had been removed from the house to enable allegedly Tahiua to enter. He said that prints had been obtained and that the accused had their prints forwarded for fingerprint analysis. However, he said that the results had not been obtained yet despite several months between arrest and trial. He admitted that he had not advised the Crown of this. That I consider is a serious shortcoming in an officer who is in charge of a case. In this regard, I commend to LC Taufa the observations of Webster CJ who observed in 'Esala Mafi;

"I am saddened to have to say yet again in a criminal case that a confession by the accused is not a measure of a sound prosecution case. What makes a good prosecution is good and solid evidence from independent witnesses. A confession can always be challenged and there is no substitute for independent evidence"

[48] For all these reasons, I ruled that the interviews were inadmissible.

It has been my experience in Tonga that these kinds of issues as they often do in other jurisdictions can take a lengthy time to resolve. This case was no exception. It is important that the defence indicate with reasonable precision when a trial date is sought what evidence is challenged and a general outline of the nature of the objection with a reasonably accurate estimate of the required hearing time. Where a lengthy hearing is anticipated, it may be preferable and more convenient for all to resolve these matters by means of a pre-trial hearing rather than proceed to trial.

[49] Where an allegation of misconduct is to be made against a police officer, the Crown should also be alerted to this in a timely way, so that officers may be called to give evidence on the issue. It should be sufficient for the Crown to be told the general nature of the allegation and the identity officer involved, without citing chapter and verse.

[50] I thank both counsels for their assistance. The accused were fortunate to have a counsel of the experience of Mr Tu'utafaiva representing them. So often, those appearing before me have no legal representation, and it causes me concern. Cases such as this one illustrate clearly how important legal representation in criminal cases is. Provision of legal aid and perhaps an office of Public Defender would assist to remedy this deficiency. It is Mr Tu'utafaiva had also been counsel in the case of 'Esala Mafi, in 2005, which was a Ha'apai case, and an authority which I found very helpful.

DATED: 25 JANUARY 2013
J U D G E