Simona v The Crown [2002] TVHC 1; Case No 01 of 2002 (12 August 2002)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 1/02

ELIAPO SIMONA

v.

THE CROWN

Hearing: 9 August 2002
Ruling: 12 August 2002

Duckworth for applicant
Muaror for Crown

RULING

The applicant in this case is now 18 years old but, when he was still 17 years, he was arrested for a number of offences alleged to have been committed over a period of time since he was 16 years old. There is no dispute that the arrest was lawful. He was then held in custody and, during that time, interviewed by the police. It is not disputed that he was cautioned in accordance with the Judges' Rules which counsel advises the Court are applied in Tuvalu but he was not advised he could have a parent or guardian present nor, in the majority of cases, that he had a right to consult a lawyer.

He now applies for an order that:

1. his constitutional right under section 17(2)(a) of the Constitution has been breached;

2. the denial of his right to contact his parents and the failure by the police to advise him of his right to take legal advice is a breach of article 40 of the International Convention of the Rights of the Child to which Tuvalu is a signatory, and

3. as a result, the confessions be quashed and this Court make such further orders as it considers appropriate.

Counsel for the Crown objects to this proceeding on the good ground that this application is premature because this is a matter to be determined by the trial court. That is clearly correct. The manner in which an interview was conducted or a statement taken from any accused person is a matter for the trial court to consider in order to determine whether such statements are admissible. That is a matter of fact and law which will depend on the circumstances of each individual case. This court has no right to interfere. Clearly for the same reason the order sought in the third paragraph of the application must also be refused

However, although that must be the result in this case, the application raises an important issue and so I requested counsel to address me on the question of the rights involved in such a case where a child is charged with a criminal offence. I am grateful to them for their submissions.

There is no dispute that Tuvalu is a State Party to the Convention and by the provisions of section 17 of our Interpretation Act, a construction of a written law which is consistent with the international treaty obligations of Tuvalu is to be preferred to a construction which is not.

In terms of the definition of a child, the Convention accords with our law. In the Custody of Children Act for example, 'child' is defined as any person under the age of 18 years and Article 1 of the Convention provides a similar definition.

This application poses two important questions. The first is whether there is a right as stated in the second paragraph of the application set out above. The second is whether, if there is such a right, the police are under an obligation to advise a child in their custody of that right before questioning him. The constitutional provisions referred to in the application do not provide a clear or specific answer to either question.

Section 17(1) provides, as far as is relevant, that subject to various exemptions and restrictions, "no-one shall be detained except ...

(f) with his consent; or

(g) as authorised by law in the cases set out in subsection (2)".

Subsection includes:

"(a) in the case of a person under the age of 18 years - in the reasonable exercise of the authority of parent, teacher or guardian, or under the order of a court for the purpose of his education, welfare or proper discipline..."

Further, counsel for the applicant relies on the provisions of section 22(3) which, under the heading "Protection of law", provides:

"A person charged with an offence-

(c) shall be given adequate time and facilities for the preparation of his defence, including time to study and fully understand the precise charge against him, and its possible consequences; and

(d) shall be given reasonable facilities to consult, at his own expense, a representative of his own choice..."

I do not consider section 22 advances the case because it is dealing only with the situation after charge. However, the applicant's argument is that the terms of section 17 apply to the police on the basis that, once they have taken a child into custody, they are effectively in the position of the guardian. With respect to counsel, I consider that argument somewhat double edged. If the police do assume the mantle of the guardian, they are entitled to keep the child in their custody under section 17(2)(a) but the section provides no guidance as to the terms of such custody.

It seems to me that, as they stand, neither of these provisions establishes either the rights claimed or any obligation on the police to advise anyone in their custody of these rights before he is interviewed.

Mr Duckworth, acknowledges that and therefore points to the provisions of Article 40 of the Convention which provides in paragraph 2(b):

"Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ...

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have the legal or other appropriate assistance in the preparation and presentation of his or her defence..."

Taken together, Mr Duckworth argues those provisions establish a clear requirement to ensure that a child has his parents or guardian present when he is interviewed by the police. If that is correct, there must equally be an obligation on the police to advise a child of his right to have a parent or guardian present and, if the child so wishes, not to go further with any questioning until such person is present or reasonable attempts have failed to locate them or are impractical.

Mr Muaror for the Crown accepts that the terms of the Convention must be applied when interpreting the constitutional provisions and therefore that there is a right for a child to have his parent or guardian present. He suggests, however, that the inclusion of the word 'appropriate' in article 40 means that it is not necessary in every case. He suggests that the decision as to what is appropriate can be made by the police officer depending on such factors as the previous character and apparent sophistication of the child.

I cannot agree. It flies in the face of such a provision to give the person in authority the right to make a decision about the manner is which he should treat a person in his custody based on his subjective view of the case.

I am satisfied that the Constitution read in accordance with the terms of the Convention gives any child in the custody of the police the right to have a parent or guardian present unless that is impractical. The perception that a child needs special protection arises from the immaturity and vulnerability of children. That is the foundation upon which the Convention was constructed.

In the hostile and stressful situation of an accusation of a criminal offence, it is accepted a child needs the mature guidance and reassurance of someone who clearly has its interests at heart. To suggest that it should know that it has such a right and would have the courage or maturity to demand it runs counter to the fundamental philosophy of the Convention. I consider it a logical and proper conclusion that the police are obliged to advise any child of the right to have a parent, guardian or legal adviser present and to take any reasonable steps to secure such attendance before taking any step that could result in the child making a statement against its interests.

Where the police proceed with an interview on the basis that it is impractical to have the parents or guardian present, it will be a matter for the trial court to determine whether that was a proper decision on the facts of the particular case.

The test for the trial court when considering the admissibility of a confession is whether the prosecution has proved beyond reasonable doubt that it was made voluntarily. If it was not, it should be excluded. If it was, the court still has a discretion to exclude it if it considers that the circumstances in which it was taken would make it unfair to admit it.

In the case of a child, if the court is not satisfied that the police advised the child of its rights to have a parent, guardian or legal adviser present but went ahead regardless, any statements should be excluded.

In the present case the application is refused. The cases must proceed to trial. The trial court can then determine the question of admissibility on the facts proved in each case and applying the principles stated above.

Dated this 14^th day of August 2002

Gordon Ward
Chief Justice to Tuvalu