R v Lopeti [2018] TOSC 22; Criminal Case 69 of 2017 (8 June 2018)

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

CR 69 of 2017

BETWEEN: R E X - Prosecution

AND: HEAMANI LOPETI
- Accused

BEFORE THE HON. JUSTICE CATO

RULING ON VOIR DIRE

1. I heard several days of evidence relating to this voir dire. Mr Lopeti objected to evidence of a demonstration which had been photographed and undertaken after a record of interview had been taken from him by Police at Hu’atolitoli prison, after his arrest in November, 2014. This record of interview has been lost. Mr Lopeti said that he had received a beating from two prison officers shortly after being taken to the prison on the 9th November 2014 where he had been placed in solitary confinement. I heard two prison officers give evidence and they were extensively examined by Mr Lopeti and myself.
   
2. During the course of the voir dire, it became clear that the prison officers attributed the broken jaw to an injury he suffered in a road accident where he had been the driver in a car that crashed containing allegedly stolen goods with his head on the steering wheel. These goods, Tonga mats, had been it is alleged by the prosecution, taken from scene of the robbery where one of the occupants had been injured during an armed robbery earlier that day. For his part, Mr Lopeti contended that the broken jaw had been caused by the beating which he had received from prison officers prior to his undertaking any record of interview with Police and hence prior to the demonstration. I called for the Viola hospital file which indicated that he had been taken to hospital several days after his arrest suffering from a broken jaw. There is a notation that his injury was derived during the course of the car accident but I received no information as to who gave this information to the doctor concerned. If his injury had arisen during the accident, I find it curious that he had not been taken to hospital earlier but had remained in solitary for several days. I do not, however have to make any ruling on this matter for reasons below.
   
3. The Police for some reason did not refer this matter to the Crown authorities for a couple of years which, in itself, is unsatisfactory, the matter arising in 2014. During this time or at some time after the file was placed with the prosecution, the record of interview was lost. Another alleged admission recorded in writing and taken by one of the prison officers was also it seems lost, perhaps at the prison. This serious case is an unacceptable litany of error.
   

4. The demonstration was plainly a part of and confirmatory of what had transpired at the interview where allegedly admissions had been forthcoming. In the absence of the production of the record of interview, I consider that it is unfair for the prosecution to lead any part of the demonstration evidence. In any event, the officer conducting the interview was unable to recall any of the accused’s conversation during the interview so the demonstration (relying simply on photographs of the accused inside the complainant’s residence) would, in my view, be unhelpful and possibly misleading. Any probative value would be tenuous in comparison with the prejudicial weight it might carry.

5. In any event, there was no evidence led before me that, prior to the record of interview being conducted, the accused had been given a caution as police are required to do under section 148 of the Police Act 2010. An earlier witness statement was obtained by one of the prison officers, who gave evidence that was self – serving, also without any caution at a time when he could have been charged. The fact that mats belonging to the complainants’ were located in the car in which the accused was found injured in the driver’s seat would have been a sufficient reason to charge him, being evidence of recent possession. In Tonga, prison officers are by law, I was told by Mr Aho, also members of Tonga police as are fire officers. Where prison and fire officers proceed to investigate offences and interview suspects, I consider the principles laid down under the Police Act 2010 should also apply to them. For these reasons and also because Mr Lopeti objected to the largely self-serving interview in the form of a witness statement being admitted, I exclude the evidence of the demonstration and his witness statement dated 9th November, 2014.
   
5. In these circumstances, I decline to make any finding concerning the alleged improper conduct. However, had it been true that Mr Lopeti occasioned such a serious injury as a broken jaw in the car accident as prison officers allege, I consider that it is very unsatisfactory that he was not taken for medical treatment much earlier than he was. I find it rather difficult to believe that he would not have complained earlier about this when placed in solitary. It is unnecessary, however, to examine this matter further. The trial is to proceed next week.
   

C. B. Cato

DATED: 8 JUNE 2018 J U D G E