Police v Vaitolu - Ruling [2003] WSSC 56 (20 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

IAKOPO UMU VAITOLU,
male of Fa’ala Palauli
Defendant

Counsel: Messrs A. Faasau and J. Stowers for prosecution
Mr M. Leung Wai for the defendant

Hearing: 20 October 2003
Ruling: 20 October 2003

RULING OF JUSTICE DOHERTY

The accused objects to the admissibility of a confession made by him after he had been in police custody on this matter for approximately nine (9) hours.

The prosecution makes application for the admission to be ruled admissible and a voir dire was held.

The particular point is whether or not there has been a breach of the accused’s right to access a lawyer of his choice without delay. A right that is enshrined in article 6 (3) of the Constitution and has been opined upon by the Court of Appeal in the Attorney General v Ueti (Court of Appeal 24/93) and other cases. As is often, or perhaps generally, the case in such matters, the issue must be determined upon the credibility of police witnesses versus the credibility of the accused.

For the police corporal Ioelu in his evidence said that he gave the accused his rights on three (3) separate occasions. The first of those, when he saw him for the first time approximately 3.15pm at the police station on the 25^th of June this year. His evidence was that he told the accused why he was there and advised him of his legal rights and rights to silence. He said that when he informed him of those rights the accused asked for some time to consider his decision and asked if he could be given some time to rest. Some time later, between 30 and 60 minutes later, the corporal said that the accused woke up and he again informed him of his rights at that time. It was clear from all of the evidence that the enquiry by the police occupied some time. At various occasions, the accused was spoken to and he was given the opportunity to have more rest. Ultimately, at about 12.18am the next morning, he requested to speak to the corporal and the corporal said he advised him of his rights and his right to seek the advice of counsel. He was also given the caution.

The corporal said that at this time, the accused said he did not want a lawyer until court time and he did not want to make a formal statement but admitted that he did make an indecent assault upon the complainant. It was at that stage that the corporal recorded what the accused said on a typewriter. He recorded that as the admissions which he said were relayed by the accused. At the end of the typing of a short note, the piece of paper upon which the corporal was typing was removed from the typewriter, given to the accused and he was told by the corporal to look at his admission. The corporal said that he did so, that he appeared to read it, that he seemed to understand it. The corporal showed him where to sign. He did so and did so in the presence of a second police officer constable Muamua.

Specifically the corporal said that the accused was not forced to sign, he was merely told that if he agreed with the admission on the piece of paper he should sign it. Constable Muamua witnessed his signature. Specifically, the corporal in cross examination denied that the accused said that he wanted to go back to his father who was in hospital and specifically denied that the corporal had told the accused that if that was to happen, he would have to make a statement first. He also denied that the accused was not given food or water through the duration of the time he was at the police station and he also denied categorically an allegation that when a lawyer was offered to the accused, he, the corporal said that all of them would be busy anyway. He specifically said that he gave a list of solicitors and telephone numbers to the accused. Significantly also his evidence was that whilst the accused did not contact a solicitor, he used the phone to ring home.

Constable Muamua’s evidence generally supported that of the corporal as far as it could go because constable Muamua was not present the full time. He was however, he said, present at the time of the admission, and he specifically confirmed that the corporal had given the accused his rights in a caution just prior to the interview at 12.18am. He also confirmed that the accused said he did not want to make a formal statement but conceded that he had kissed the complainant and had touched her breasts. He confirmed that he did not at any stage, when he was in the presence of the corporal and the accused, hear the corporal say that all lawyers would be busy. It was his evidence that he was only really involved at that late stage.

For the accused his evidence was that, the interview was on and off of affair over the full period of his detention by the police. He confirmed that he initially denied the allegations made against him and confirmed also that about midnight he had reflected and wanted to talk to the corporal because he wanted to go to his sick father and to his children. He agreed that he had confessed and made the admissions recorded by the corporal but that was because he wanted to go to his father. He said throughout the process he had not been given water and food and therefore he argues the point on that issue with the police witnesses. He said that he did not sleep, although his evidence is consistent with that of the police that if he did not sleep he was given the opportunity to do so.

As to the specific issue, his evidence was that when he asked if he wanted counsel he said “yes, but any statement would be made in court.” He said he was told that he would not find one, as lawyers are very busy. In passing, I note, that is not a likely statement to have been made in the early hours of the following morning and it is an inference then that this was what the accused was told earlier the day before. He denied that he was given a list of lawyers and phone numbers. Specifically he said he was not. The corporal did not inform him of his rights to contact a lawyer. In his words the corporal “only ask me if I wanted a lawyer, I said, yes. I said I wanted a lawyer but my statement was to be made in court.” He also said “they did not ask me whether I wanted to contact the lawyer only if I was engaging a lawyer.” They said that they could not find one because they were very busy and he confirmed that he requested a telephone to phone home and that he was given one. He specifically said that he had told the police that he would make a statement at the court case, and what rights that were given to him were at the police station initially, the inference being that they were not later.

Specifically he denied that any of his rights and the caution was given to him at 12.18 just prior to the statement being made and this is directly contrary to the evidence of both policemen.

So as I said at the outset, credibility is the issue here. The accused says that he confessed not under any overt pressure from the police but from the family pressure upon him of a sick father and of his children. But contrary to that, he accepted that his father was being cared for at the local hospital by his sister and her husband and he admitted that he was not required to be there for the purpose of caring for his father. He also confirmed that the police had asked that his father’s permission for the accused to go with them and his father had given that consent. It seems to me to confirm that things were little more relaxed at the hospital then the accused would have the court believe. The accused also said that he did not read the typed written notes that he was signing but he admitted in cross examination that he knew full well the importance of reading significant documentation as he was a well travelled man and he knew the importance of putting once signature to something.

In assessing the credibility of the accused I have the impression that he was somebody not likely to be intimidated or pushed into doing something he did not want to do. I have the impression also that he was a person who was likely to have his wits about him at all times. I also have the impression that he was a person likely to have understood his predicament and to have understood the rights that are afforded to him by the Constitution if they had been given to him in the manner that the police say they were. My other impression I regret to say is that his evidence and the emphasis that he put on it was tailored by him to suit his current circumstances and I reject his evidence on the salient points. I accept the police officers evidence on the salient points. Their evidence is consistent and effectively matches of that of the accused on the important issue except that the accused tries to put a spin on the words used. That is, he tries to say now that the police did not ask him whether he wanted to contact the lawyer but only if I was engaging a lawyer. I reject that spin. I accept also that the police gave the accused his rights under the Constitution and a caution as required, on the three occasions.

Finally, I make the following findings. On his own admission the accused made a voluntary statement. Second that he made that statement with full knowledge and understanding of his rights to contact a lawyer, those having been afforded him on three occasions. The last, just prior to his making the statement. I find the admission by the accused as recorded in the notes of the police as admissible evidence.

JUSTICE DOHERTY