Police v Sale [2000] WSSC 50 (19 June 2000)

IN THE SUPREME COURT OF SAMOA
APIA

S. 5085/2000

BETWEEN

THE POLICE

AND

JUNIOR SALE

Counsel: Mr Fagaloa Tufuga & Mr Raymond Schuster for the Prosecution
Mr Karanita Enari for the Defence

Hearing Dates: 12, 13, 14, 15, 16 & 19 June 2000
Date: 19 June 2000

REASONS FOR A RULING AS TO THE ADMISSIBILITY OF A CONFESSION STATEMENT AND AS TO THE TERMINATION OF CRIMINAL PROCEEDINGS AT THE CLOSE OF PROSECUTION CASE (DISCHARGING OF THE ACCUSED).

Whilst there may be customary reasons why a parent or uncle should see a need to use discipline (even physical force, provided that it is reasonable) to extract the truth from a teen-age child (provided that the truth is known), there is no warrant provided by the criminal law of Samoa for complaints to be beaten out of an alleged victim of suspected sex offences. And there is no warrant for a confession to be extracted from a suspected offender by intimidatory measures, such as being made to take off his clothes and stand naked in the presence of police officers.

The Constitution of the Independent State of Samoa guarantees, under Article 7, that no person shall be subjected to degrading treatment.

As my reasons will show and as the prosecution conceded, the alleged victim of these three serious sex charges (a 13 year old girl) had a series of complaints beaten out of her by her mother and her uncle. The prosecution sought (inappropriately, in my judgment) to use those so-called complaints as evidence against the accused. The accused allegedly was told by the police to take off all his clothes, when in a small room at the police station, until he abandoned his denials of any wrong-doing. A confession followed this allegedly intimidatory and frightening ordeal. That such an ordeal occurred or may have occurred was not conceded by the prosecution and there were some (but not much) evidence purporting to deny such conduct.

Much of the medical evidence of injuries allegedly sustained by the alleged victim at the hands, so to speak, of the accused, that was adduced as against the accused, was clearly consistent with the alleged victim having been beaten by her mother and uncle and not consistent with any allegation against the accused that the alleged victim was making. I am here referring to the bruising and tender areas on "both buttocks" and the bruises on "both groins".

The history taken by Dr. Sa'u Faitala, though not evidence of the truth of what the doctor may have been told, was evidence which might have enhanced the credibility of the alleged victim if it revealed consistency between her evidence given from the witness box and her account of the events as given to the doctor. Far from the two accounts being consistent, they were inconsistent. As a result, the credibility of the alleged victim was diminished.

What is of concern is that the results of conduct that was conceded to have been that of the alleged victim's mother and uncle were treated and proffered as evidence against the accused of non-consensual sexual intercourse accompanied by violence with the use of a stick, in circumstances in which the alleged victim gave not one piece of evidence alleging any violence or use of by the accused of force with an object.

What took up most of the time during this trial was a consideration of whether the accused was mis-treated whilst at the police station on the morning of the Sunday, 3 October 1999.

Indeed, a voir dire hearing was held in order to consider the voluntariness (and, therefore, the admissibility) of the signed statement given by the accused to the police on the day of his arrest and charging. That statement is said to be a confessional statement; I assume arguendo that it contains at least some admissions and possibly something in the nature of a confession.

It is for the prosecution to prove beyond reasonable doubt that the statement in question was given voluntarily [R v McCuin (1982) 1 NZLR 13, compare Wendo v R (1963) 109 CLR 599]. The onus of proof is squarely on the prosecution. In the circumstances of this case, it is for the prosecution to satisfy me -

1. that the accused was not under arrest when he was brought to the police station by several police officers on the morning of Sunday, 3 October 1999 and, on that account, entitled to be told immediately of his rights;

2. that the accused was not told to strip his clothes off when in a small room at the police station whilst awaiting being interviewed; and

3. that the accused was not offered an inducement to the effect that he could go home if he made (and signed) the statement in question.

I am satisfied beyond reasonable doubt that the accused was not immediately under arrest at the time he was brought to the police station. It might have been otherwise if there had been evidence that the accused had protested at having been taken to the police station, or had testified to having felt that he would not be allowed to leave, if he had indicated to the police a desire to leave. It also might have been otherwise if the police had considered that the accused was not free to leave, had he asked to do so.

I am also satisfied beyond reasonable doubt that the accused was not offered an inducement to the effect alleged.

However, I am not satisfied beyond reasonable doubt that the accused was not told to take his clothes whilst in a small room.

Whilst the only positive evidence that he was stripped whilst in a small room was given by the accused and maintained by him under persistent cross-examination, there was some circumstantial evidence that tended to confirm or support his story in the form of the evidence of the accused's mother that he was for some time in a small room at the CIB office. Constable Lene Tanielu provided some support for the accused's testimony to the effect that he was in a small room when he said: "No, there was no other police officer in the officer when the accused was interrogated; I recall that it was only myself that questioned him." Sergeant Lomano Paulo gave clear evidence regarding the accused being in an "office on the west side" in which he said that Constable Lene Tanielu and Constable Keilani Keilani were in "a room in an open space." Curiously, - Sergeant Lomano said that Constable Lene and the accused stayed in the large office all the time. He said: "I don't even recall that they went into that room, the (small room); as far as I'm concerned, they did not go into that room."

Regarding the position adopted by the prosecution in relation to this matter, there was a noticeable absence of evidence by witnesses who might have denied "the stripping", as I describe the direction to the accused to remove all of his clothes.

Constable Lene was not asked whether the accused was asked to strip his clothes off. He denied going to the accused's house and he denied seeing the accused until about 9.00am.

Sergeant Lomano denied seeing any stripping, but it was not suggested that he was in the small room when the alleged stripping occurred.

Constable Michael Soonalole, who was said to be present when the stripping occurred, was not even asked whether he saw the alleged stripping or not. Whilst it could be said that defence counsel did not did not seek to obtain some evidence favourable to the defence, it must be remembered that the onus is on the prosecution and not on the defence. The prosecution could easily have asked Constable Michael Soonalole if he saw any stripping or the like. But, for some reason that is not apparent to me, no such question was asked.

There were several other police officers who might have been called (or re-called, in the case of Constable Lene Tanielu) to deny the stripping, if no stripping occurred, or at least provide some evidence which might go in disproof of that serious allegation. I refer, in particular, to the driver of the police vehicle and the two or three other police officers said to have gone in the police vehicle to collect the accused. I refer also to another police officer who was said to have been "in the small room" at the time that the other officers brought the accused to that room.

One of the police officers who might have been called was named Constable Keilani Keilani. No explanation was given for his absence. It is appropriate, in the circumstances, for me to draw the inference from the unexplained absence of Constable Keilani Keilani that he could not have assisted the prosecution case [see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Brandi v Migot (1976) 12 ALR 551].

It is appropriate for me to draw the inference, from the unexplained absence of the driver of the police vehicle and the other unnamed police officers referred to, some or all of whom must have been on duty that morning in and around the CIB office and in and about the vicinity of the small room, that they too could not have assisted the prosecution case.

I do not find positively that the accused was told by the police to remove his clothes and did so in the small room on one side of the CIB office. However, the prosecution, upon whom the onus of proof lies, has not satisfied me that such intimidatory conduct did not occur.

It must not be overlooked that Article 7 of the Constitution preserves a number of fundamental human rights, including the right not to be subjected to degrading treatment.

Article 7 provides:

"7. Freedom from inhuman treatment - No person shall be subjected to torture or inhuman or degrading treatment or punishment."

The broad principle, that I applied at the end of the voir dire hearing, is that a confession will not be accepted as voluntary unless the court is satisfied by the prosecution beyond reasonable doubt (and that is the standard of proof in Samoa, in contrast to that in some other jurisdictions) that the accused's will was not overborne either by direct or indirect means.

Needless to say, where the defendant has been intimidated or subjected to or threatened with force or improper pressure akin to force or unreasonably prolonged questioning or has been detained in custody for an unreasonably long time, his confession cannot be regarded as "voluntary". No confession can be regarded as "voluntary" which has been procured by improper inducement or by intimidation whereby the accused could reasonably have been led to think that, by making the confession, he would gain some advantage (perhaps being allowed to go home) or, more relevantly here, avoid some evil (the embarrassment and fear associated with the humiliation of being naked) in connection with the outcome of the prosecution.

The classical statement of the law regarding voluntariness is that of Dixon J. (as he then was) in the High Court of Australia decision of McDermott v R (1948) 76 CLR 501 at 511:

"If (the defendant) speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary."

This statement of Dixon J. was approved by the Court of Appeal in New Zealand in Naniseni v R (1971) NZLR 269 and, very recently, by the High Court of Australia in R v Swaffield [1998] HCA 1; (1998) 151 ALR 98 per Toohey, Gaudron and Gummow JJ at page 117 and per Kirby J at 132.

The voluntariness has not been established here because, on account of a lack of evidence from all of the witnesses I would have expected to be called to testify on this issue, I cannot make any finding beyond reasonable doubt that the alleged police impropriety in obtaining the confession did not occur. An obvious way for the police to minimise the risk of a confession, such as is said to have been made here, being rejected is to ensure that one other police officer (and one only) be present during an interrogation so as to be available to be a corroborating witness should the confession be challenged on grounds such as were advanced here.

The prosecution having failed to satisfy me that the statement said to be a confessional one was voluntary, it was rejected by me.

Following the rejection of that evidence, the evidence for the prosecution continued. At the close of the prosecution case, some submissions were made by defence counsel (including 'a no case to answer' submission) designed to bring this prosecution to an end at that stage.

It was argued on behalf of the prosecution that there was here evidence of the alleged victim having complained to her mother and to her uncle (and, eventually, to the police) and that that evidence constituted evidence of one or more complaints by the alleged victim. It was further argued that the complaint or complaints could be used as evidence against the accused and even constitute corroboration. These arguments are misconceived and are of no assistance to the prosecution case.

First, if a complaint is to be admissible at all (and a complaint may be admissible for certain limited purposes), it must have been spontaneous and voluntary, in the sense that it was volunteered. A complaint will not be received if it was forced out of the alleged victim or if it resulted from (as was the evidence here) a smacking and/or a beating. A complaint will not be receivable in evidence if the alleged victim merely agreed with a number of suggestions made to her as to what did happen by the person or persons to whom the alleged victim had gone. Questions of a suggestive or leading character, if asked by the person or persons to whom the alleged victim had gone, will have the effect of rendering the alleged complaint inadmissible.

Secondly, a complaint must have been made at the first reasonable opportunity. It will be rejected if it is given after a reasonable opportunity for doing so has passed. Matters of place, time and circumstances will be taken into account in deciding what is "reasonable". It is for me, as the trial Judge, to determine whether the complaint has been made with sufficient promptness.

Thirdly, assuming arguendo that a complaint has been made and has been made at the first reasonable opportunity, (that is to say it is a recent complaint), what was said by way of complaint is admissible evidence in a trial of a sexual charge to support (or assist in assessing the credibility of) the alleged victim by showing, if it does, consistency between the account of the incident given by the alleged victim from the witness box and the account given to the person or persons to whom she complained. What was said by way of complaint is not evidence of what occurred. It cannot be treated as evidence of the truth of the charge.

Fourthly, the actual terms of the complaint in a sexual case - what the alleged victim said when complaining (and this evidence may be given by both - the alleged victim herself and by the person to whom the complaint was made or by both) - are admissible. The fact that the complaint was made (and no more) is not admissible evidence.

Fifthly, a complaint cannot corroborate an alleged victim's evidence, because such corroboration must be evidence independent of the victim.

In the present case, there was no evidence given by either the alleged victim or anyone else as to what the terms of the complaint were. Because there is no evidence as to what was said by way of complaint, it is not possible to assess whether there is consistency between the account given by the alleged victim from the witness box and the account given when making the complaint, and, therefore, whether the alleged victim's credibility is enhanced or not.

Any complaint to the police could hardly be said to have been made "at the first reasonable opportunity", even in the circumstances here. A complaint, if made to the alleged victim's mother and uncle, may well be one made at the first reasonable opportunity having regard to matters of place, time and circumstances. However, and most importantly, the complaint or complaints, whatever the terms thereof, were not voluntary in the sense of having being volunteered. As the prosecution conceded, the account given by the alleged victim, whether characterised as a complaint or not, was forced out of her and it was in response to what was variously described as "a smacking" and "a beating" at the hands of her mother and her uncle.

With the confessional evidence having been excluded and there being no evidence of a complaint or complaints that could be used against the accused and there being no corroboration of the girl's story which tended to prove not only that the offences were committed, but also that it was the accused who committed them, the prosecution was left, in the end, to rely on the uncorroborated evidence of the alleged victim. That evidence was not only unsatisfactory in itself, with the girl giving conflicting testimony and changing her story frequently, but it had all the defects, to which I referred earlier, as the testimony of a reluctant victim who had been abused.

Mr Enari, defence counsel, at the close of the prosecution case submitted 'no case to answer' but, alternatively, relied on one or other of the several submissions referred to in The Police v Tiapua Iokimo Ah Sui and Others, unreported decision of the Supreme Court of Samoa dated 16 September 1999. Defence counsel contended that either upon the basis of a 'no case' submission or upon the basis of a Doney submission, or, indeed, upon the basis of a Prasad invitation, this criminal trial should be terminated at this stage. As was indicated in the decision to which I have just referred, the test to be applied for 'a no case' submission to succeed is whether the defendant, on the evidence as it stands, 'could' lawfully be convicted or whether the evidence is 'capable' of leading to a lawful conviction. The test for a Doney submission is whether there is 'a defect' in the evidence, for instance, following the ruling of confessional evidence to be inadmissible. And the test for a Prasad invitation (which, according to the authorities, is to be applied sparingly) is whether the evidence is 'insufficiently cogent', to justify a verdict of guilty or whether prosecution witnesses have been 'patently unsatisfactory'.

My attention was directed during legal argument to R v H (No 2) (1994) 2 NZLR 460, and I am grateful to counsel for a reference to that authority. My attention was also directed to section 104(3) of the Criminal Procedure Act 1972. Subsection (3) provides:

(3) The Court may, in its discretion, at any stage of any trial direct that the defendant be discharged.

That subsection is similar to section 347 of the Crimes Act 1961 of New Zealand which was considered in R v H (No 2).

The matter for my decision, at the end of the day, so to speak, is whether I should, in my discretion at this stage of the trial, direct that the defendant 'be discharged'. I think it is important to consider and apply the principles for the exercise of that discretion that have been alluded to and set out in Police v Tiapua Ioakimo Ah Sui. Applying the law to the facts of this case at the conclusion of the prosecution case, I find that there is a case to answer. But applying the principles in Doney v R [1990] HCA 51; (1990) 96 ALR 539 and R v Prasad (1979) 23 SASR 161, which has been considered in numerous other authorities decided in jurisdictions in the Pacific region including Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657, a decision of the High Court of Australia, I am satisfied that there are defects in the prosecution evidence. The evidence is insufficiently cogent to justify any verdict of guilty on any of these charges. I have already indicated my view as to the nature and quality of the evidence for the prosecution that remains. The evidence of the alleged victim is, for the reasons indicated, patently unsatisfactory.

For all these reasons, there will be verdicts of not guilty on each charge and the accused will be discharged.

JUSTICE WILSON