Tor v Public Prosecutor [2003] VUCA 2; Criminal Appeal Case 06 of 2003 (9 May 2003)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

Criminal Appeal Case No. 06 of 2003

BETWEEN:

ANDERSON TOR
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak

Counsel: Mr. Hillary Toa for the appellant
Mr. Eric Sciba for the Public Prosecutor

Date of hearing: 7th May 2003
Date of judgment: 9th May 2003

JUDGMENT

On 17^th May 2002, Anderson Tor, after pleading guilty to one count of Rape, was sentenced to 2½ years imprisonment.

He subsequently appealed against conviction on the basis that the Judge had been misled before the preliminary inquiry by a failure to disclose relevant material which would have had a material effect upon the position particularly as the complainant had subsequently advised the Court of a custom ceremony which had been performed and that she did not want to proceed.

Mr. Toa also contended that at the Police station Mr. Tor had been denied the opportunity to tell his story and had been badgered into agreeing with a police officer about issues contained in the statement of the complaint. He further contended that the police, although aware of the existence of the custom settlement and the girl’s unwillingness for matter to proceed, had not informed the Judge of these issues.

When the matter first came before the Court of Appeal in October 2002, we were quick to point out two matters:

(a) that to appeal conviction after a plea of guilty is to face a very high barrier particularly by a person who was at that time represented by legal counsel.

(b) That the Court of Appeal was of the view that the effective of sentence of 2½ years imprisonment which was imposed was on its face extraordinarily lenient if not manifestly inadequate.

Although the Judge had taken a reasonable starting point of 5 years the deductions and allowances which he made in our judgment were probably beyond the reasonable limit available.

We explained at length to Mr. Tor’s new counsel and to Mr. Tor himself that if he were granted a retrial and as a result again convicted of the offence then he would inevitably face a term of imprisonment substantially greater than 2½ years which had initially been imposed.

Notwithstanding all of those warnings, Mr. Toa has persistent with his desire to continue with the appeal. He filed a full and comprehensive affidavit setting out a number of disquieting aspects in the case.

In November 2002 the prosecution indicated that it needed time to consider the issues raised and accordingly the appeal was held over from the final session of 2002 to the first session of the Court of Appeal in 2003.

By that stage there were two affidavits on the file sworn by police officers challenging the suggestion that there had been any coercion applied to Mr. Tor but revealing some serious misconceptions about the role or rights of police when investigating serious crime.

The prosecution sought leave to cross-examine Mr. Tor on his affidavit. That process was carried out before us on the 7^th May 2003.

As a result of all that has taken place, the Court is left with no doubt that in the exceptional circumstances of this case, the appeal against conviction should be allowed notwithstanding that it followed a plea of guilty by a person who was legally represented when he made that election. We are satisfied that the interests of justice require that there should be a new trial in this matter.

We summarize briefly the matters which we consider of critical importance.

The appellant is a 30 year old married man with 3 children. At the relevant time he was a bus driver. On or about 9 January 2002, there is no question but that he had a sexual liaison with a 16 year old girl. He told us that he had been sexually involved on previous occasions with the aunt of this girl. These encounters appear to have occurred at times when every body involved had been drinking to excess.

The fact of the sexual intercourse was brought to official attention some two weeks later. Mr. Tor says that the reporting to the police was orchestrated by the brother in law of the complainant who was a police Sergeant. That may well be the case but it is a neutral factor.

What is of concern is that it was 16 April, nearly 3 months after the matter was reported to the police authorities that Mr. Tor was called to account. He was teaching at a local Education Institute. At about 2.00PM police officers arrived and required him to go to the police station. They apparently thought that having taken a man into custody like that, they could hold him overnight and interview him on the next day. Mr. Tor told us that he has had unpleasant experiences at the police station in the past and was insistent that he should be spoken to the police on that day. Although he knew that he had behaved in a way which was morally reprehensible, he had in his judgment done nothing wrong in a criminal sense, and was confident he would be free to go home.

Notwithstanding his insistence that he wanted to be interviewed he was simply kept there until 9.00PM complaining that he was not even given food. The first matter to be noted is that when police take someone in for questioning, they can do so only if the person on their own volition and free will wishes to go with them to the police station. When they arrest to get a person to the police station and they want an interview it is essential that it happens immediately. Holding someone for six or seven hours is unacceptable. It creates a real perception that the person is being disadvantaged in what for many people is a very alien situation until the interview. Holding them overnight prior to interview is intolerable.

All the evidence establishes that the interview process went on for 3 hours. The record of it is less than 3 pages of handwriting. Mr. Tor is insistent that he was not allowed to tell his story but was required to respond only to questions put to him by the police officers. After 3 hours of discussion we would expect that there would be many many pages of record. What the Court must have available is the total interchange which takes place between the suspect and the police not merely those parts which the police think it would convenient for the Court to see.

It is beyond our comprehension why in 2003 when people are to be interviewed there is not a tape recording made of everything that is said by every person who is involved. In that way the Court can have evidence about which it can have a degree of confidence. It will disclose exactly what was being said and how it was said.

It is to be remembered that any confession which arises in these circumstances is material which the Court receives as an exception to the hearsay rule. The law begins from the point that a witness cannot give evidence of what is said by another person outside of Court. The exception which is relevant is that the free will voluntary statement of a person against their interest can be received. If all those requirements are not met the evidence will not be admitted as testimony.

Mr. Tor’s evidence was strong and insistent that he was not allowed to tell his story. He said he was consistently told he had to answer the questions of the police. The fact that is how the police do things is confirmed in a submission from the State. It is quite wrong. Interviews in these circumstances are not opportunities for police to cross examine people. It is an opportunity for the police to facilitate the accused telling their side of the story if that is what they want to do. There is no question that the proper caution was given to Mr. Tor but the giving of a caution is not a licence for police to question and control suspects in any way they choose.

Mr. Tor told us with great feeling about past experiences that he had with the police and his perception that he was not going to get out of the police hands until he agreed with the version of the sexual activity which had been reported by the complainant in a statement to the police at an earlier stage.

Mr. Tor was an articulate man and appeared to have a degree of resilience. He impressed as someone who was truthfully relating events. His story that every time he tried to say that the sex which had occurred was entirely consensual he was called a liar. His story was not recorded. He was forced into saying that he knew it was not consensual. This testimony by Mr. Tor had the ring of truth.

Police officers have no right of ability to treat any person with whom they are conducting an interview to behave in this way.

We realize that later Mr. Tor had the benefit of a lawyer but Mr. Tor says first that the lawyer did not spend enough time with him and secondly never seemed to be on top on his case.

The appellant’s evidence was that the lawyer told him that he had to plead guilty because of the admissions which were contained in the police interview. If the lawyer had known all the facts then unquestionably he would have advised that there could a challenge to the admissibility of the statements. Even if that challenge was not successful the whole story could be given in evidence.

In any rape trial the onus is on the prosecution to prove beyond reasonable doubt that the intercourse was without the girl’s consent and without the accused believing on reasonable grounds that she had consented. By pleading guilty that requirement was avoided. On the basis of the evidence available to us the appellant did not want to plead guilty and should not have done so.

The initial appeal papers and the early presentation of the case was directed to the fact that the outcome was unsatisfactory from Mr. Tor’s position because of the custom settlement. We do not see that as being a critical matter. The Judge took that into account and gave Mr. Tor a great deal of credit for it. It is not the primary issue of concern in this appeal.

The central question is whether this man committed the criminal offence of rape. As he made clear in a confession made to the pastors of his church he had sinned in committing adultery. Wrong and all though that is, it is not a criminal offence.

The prosecution had to prove beyond reasonable doubt all of the essential ingredients of rape. We are satisfied that in the circumstances of this case first, Mr. Tor did not have the benefit of professional and helpful legal advice. Secondly, the police practices in obtaining the confession have serious question marks over them. Thirdly, there is a real possibility that no offence had been committed.

The way in which this man was apprehended by the police was quite unsatisfactory. The complaint had been made in late January. For whatever reason it was not seen as being of particular priority or importance. When the police almost 3 months later followed it up, then the proper course would have been to request Mr. Tor to attend at the police station at a time which was convenient to him. He could have been accompanied by a lawyer. Dragging him out of his school, taking him to the police station, leaving him without food, imagining that they could keep him overnight and then interviewing him in an unacceptable manner is intolerable in a free and democratic society.

During the interview the task of the police was to enable him to talk about relevant issues (which they are entitled to identify) but in his own words, in his own way and with everything which he says being comprehensively recorded and available to a Court.

There are so many unsatisfactory aspects in this case that there is a question about the integrity of the justice system. The failings demand that Mr. Tor should be provided with the opportunity to put the prosecution to proof on the allegations against him. He knows the risk which he is in if he is not successful in his defence. That is a decision which he has taken with full legal advice.

The appeal is allowed. The conviction is quashed. He is remanded to appear in the Supreme Court at Port-Vila on Monday the 18^th day of May 2003 at 9.00AM for a new trial date to be set. The bail granted to him at the end of last year will continue on the same conditions until that time.

Dated at Port-Vila this 9^th day of May 2003

BY THE COURT

J. Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI J
Oliver A. SAKSAK J