Rex v Vailea [2018] TOSC 30; CR 75 of 2017 (22 May 2018)

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

CR 75 of 2017

BETWEEN: R E X

- Prosecution

AND: PAAME HE LOTU VAILEA

- Defendant

BEFORE THE HON. JUSTICE CATO

Ms Fakatau for the Crown
Mr Tu’utafaiva for the Accused

REASONS FOR VERDICT

1. At the conclusion of what was a short trial for 2 counts of incest by a female person contrary to section 33 of the Criminal Offences Act, I acquitted the accused on both counts and gave my reasons orally for doing so. At the conclusion of the trial, Mr Tu’utafaiva, a very experienced barrister, agreed with me that the case involved a number of issues of practical and unusual importance and that it would be helpful to further record my reasons in writing. Mr Tu’utafaiva was unable to locate any judgement that has dealt with the application of section 148 of the Police Act, 2010 involving cautioning a person of the right to silence.
   
2. The accused and her father, who had also been on trial for incest by a male person and domestic violence contrary to section 132(1) of the Criminal Offences Act and Domestic Violence contrary to sections 4(a) and (b) (i) and 28(1) (a) of the Family Protection Act, 2013, had pleaded not guilty. After arraignment, Ms Fakatau indicated that one of the accused‘s daughters, who had allegedly seen the couple committing incest and had made a complaint to police which had seen the couple arrested and remanded in custody, had had not answered her subpoena and was unavailable to give evidence. I gained the impression that her non-attendance had been foreseen as a possibility before the trial. No application for a bench warrant was made at that stage and because that was the only evidence against the male accused, the Crown offered no evidence and he was acquitted on both the counts he faced and discharged. The Crown indicated, however, that it had sufficient evidence to proceed against the female accused and so the trial continued against her.
   
3. It became apparent to me when the Crown opened its case that it depended entirely on two statements made by the female accused which were in statement form and not made under caution as required by section 148 of the Police Act if the police officer had sufficient evidence to charge the person at the time questioning commenced. Section 148 (1) of the Tongan Police Act 2010 provides that a police officer shall caution the person about his right to remain silent if;
   

(a) The police officer has sufficient evidence to charge the person at the time he commences questioning; or

(b) During the questioning the police officer believes on reasonable grounds that there is sufficient evidence to charge the person being questioned with any offence.

4. In this case, the police had, on receipt of information from the eye witness who had made the initial complaint to police of incest, sufficient evidence to charge the female accused who a couple of days after her arrest had been brought before Sergeant Penisimani Sili of the Domestic Violence office with another Police officer, Detective Vakalahi, who had been involved earlier with the complaint. Not surprisingly, Mr Tu’utafaiva objected to the admissibility of both statements, the second of which was taken by Detective Vakalahi, also in the form of a witness statement a couple of days after the first statement was made before Sgt Sili. Both statements were commenced with the usual acknowledgement by the witness that she could be prosecuted for an offence if she gave untrue evidence. Several days later, however, after the second witness statement, Detective Vakalahi commenced a formal interview under caution with the accused in which she had denied any suggestion that she had participated in an incestuous relationship with her father. Detective Vakalahi was overseas at the time of the trial on leave and accordingly unavailable to give evidence. A corroborating officer was available to confirm both the statement and the record of interview.
   
5. Mr Tu’utafaiva raised, in addition to the caution point, that Sgt Sili had induced the accused to make a statement which he denied. It became unnecessary to determine this allegation. After questioning of the officer, who I found quite candid and helpful in his answers to questions, it appeared that there had been a disagreement between Police as to the manner in which the case should proceed. Having read the first statement, I can well understand why this was so because my reading of this statement left me with the impression that the accused had been a reluctant participant in sexual activity with her father and had submitted rather than consensually engaged in intercourse with him. Sgt Sili indicated that he was hopeful that she would agree to be a witness against her father on an incest charge a view that was consistent with domestic violence. For that reason, a witness statement had been taken from her, rather than, at that stage, a record of interview as a suspect.
   
6. After taking a second witness statement from her a couple of days later, Detective Vakalahi a few days later cautioned and commenced a record of interview. It became apparent after Sgt Sili had frankly admitted that she would not agree to testify against her father that police responded by proceeding to investigate and charge her for incest also.
   
7. The problem that the Court encountered with the procedure adopted in this case was that, prior to either of the two statements being taken by Police there, was in existence evidence which justified her arrest and would have justified her being charged as well. Section 148 is a very important aspect of Tongan criminal procedure. In my view, it is mandatory for a police officer in Tonga to caution a person who could be charged on the evidence that is available. The obligation to caution signifies to a person being interviewed the serious consequences that may result if the person proceeds to co-operate and engage with the interviewing officer and may make statements either of admission or denial, and it signifies also or brings home to the suspect that he or she may be the subject of criminal prosecution. The right to silence has been a cornerstone of Anglo - American criminal jurisprudence for a very long time and, is also a cornerstone of criminal justice and police procedure in Tonga which has an adversary approach to criminal procedure and trial practice. Unlike the caution under the old Judges’ rules which were viewed as rules of practice, a breach of which did not inevitably mean that a court would rule that a record of interview was inadmissible, see R v Convery [1967] NZCA 37; [1968] NZLR 426, Tonga has, in section 148, provided that a caution is a mandatory requirement where a police officer has sufficient evidence to charge before commencing an interview. The fact that this is the first prosecution to have come before this Court on section 148 suggests that Tongan police have conscientiously followed the statutory requirements.
   
8. It may not always, however, be clear to a police officer prior to interview how strong the available evidence is and whether it would support a charge. An officer contemplating an interview must attempt to ascertain the strength of the evidence by making inquiry. If unsure as to whether the evidence available is sufficient to justify charge, the officer should caution in order to avoid any later argument at trial that a confessional statement is inadmissible because it breached the requirements of section 148. In this case, I am satisfied that Sgt Sili did know sufficient of the background of the case from Detective Vakalahi and that the evidence available would support a charge of incest so that he was required to caution the accused before an interview with her commenced. Even if Detective Vakalahi had not told him about the available evidence sufficient to support a charge, the fact that Vakalahi and he were engaged in the same inquiry would have, in my view, meant that the knowledge Vakalahi possessed should be imputed to Sgt Sili which would have meant that the failure to caution should also have caused the statements to be excluded for breach of section 148.
   
9. It is not uncommon for a person who has been interviewed by police as a witness when further evidence has been collected to emerge later as a suspect. Earlier witness statements may then become very important at trial where, for example, they are inconsistent with a later account made by an accused in an interview under caution. However, in this case, although Police in my view quite sensibly hoped the accused would become a witness against her father, because the available evidence was sufficient to have charged her she should have been cautioned before making either of her two witness statements. It was only after she had declined to agree to be a witness that it appears Police focused on her as a suspect and cautioned her. She then responded by denying allegations of incest. In these circumstances, I upheld Mr Tu’utafaiva’s objection and ruled the statements inadmissible, the consequence of which meant that there was no evidence against the accused sufficient to support the charges and she was acquitted.
   
11. There was one further matter of practical importance for criminal trial practice in Tonga that emerged at the trial. The prosecutor did not seek a bench warrant at the outset of the trial to compel the eye witness to given evidence when she did not attend the trial under subpoena. In any event, I would have been unlikely to have issued a warrant, in the absence of any other evidence against the male accused. To have issued a warrant for the witness to attend would have meant an indefinite delay in the closure of the case. In any event, even if located and brought to court, it would be problematic whether she would give evidence against her father and the prosecution were aware of this fact.
    
12. 12. I was asked later, after it had become likely that the two statements would not be admitted, for a bench warrant to compel the witness to attend but I declined to do so for the same reasons. There was as in the case of her father no evidence before the Court after the statements had been ruled inadmissible that justified holding her longer, and in my view, it would have been similarly unfair to her to have done so. I was informed that there were two other family witnesses who had also not answered subpoenas, for whom the prosecution also sought warrants, but this only compounded uncertainty in the resolution of the case. For the same reasons, I declined warrants for them to be compelled to attend.
    

NUKU’ALOFA: 22 MAY 2018 J U D G E