IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

PENIELI TAELEGA, male of Letogo and SEU MAUGALEO’O, male of Letogo and Sataoa
Defendants

Counsel: Mr R Schuster and Mr K Koria for prosecution
Mr S Toailoa for defendant, Seu Maugaleo'o
Mr T Malifa for defendant, Penieli Taelega

Hearing: 4, 5, 11, 12 and 16 August 2005
Date of Ruling: 7 September 2005

RULING OF VAAI J

The accused is jointly charged with his son for the murder of his son in law by assaulting the deceased with a bush knife on the afternoon of the 31st May 2004. As a result of the assault both the accused's son and son in law were admitted to the National hospital with severe injuries; the son in law subsequently died on the 7th July 2004. Police investigations commenced on the afternoon of the 31st May 2004; several eye witnesses mainly members of the accused's family were interviewed and written statements were obtained the same afternoon. On the morning of the 2nd June 2004 the accused went to the Apia Police and was seen by Corporal Sagapolutele who had taken written statements from a number of witnesses on the 31st May including one Silia, daughter of the accused and wife of the deceased. Corporal Sagapolutele interviewed the accused. It is the alleged record of that interview which the prosecution proposed to produce as evidence but is objected to by the defence on two grounds namely: the accused was denied his right to consult a lawyer of his own choice without delay contrary to Article 6(3) of the constitution; and the inculpatory statement was given in breach of the judge’s rules.

At the voir dire the accused elected not to call evidence so that the only evidence received were the testimonies of Corporal Sagapolutele who conducted the interview and Constable Tuua who was present during the interview. Corporal Sagapolutele conceded that as a result of witnesses statements he obtained on the 31st May he had sufficient evidence to charge the accused with causing grievous bodily injury to his son in law as well as with indecently assaulting his daughter; so that at the commencement of the interview he immediately proceeded to caution the accused and informed him of his right to counsel and the accused was also given the police green card which outlines his right to counsel and his right to remain silent. Corporal also read back to the accused the contents of the green card. Under examination in chief the Corporal testified that the accused understood his right to counsel but he did not want a lawyer, he will not engage counsel (page 29 lines 5-10 Tuesday 16/08/095 transcript). But this part of the Corporal’s testimony contradicts what he noted down in writing as the accused’s response and under cross examination the Corporal had no choice but to admit the contradiction. In the interview the written response of the accused in relation to his right to counsel noted by the Corporal is to the effect:

"I understood also this right but there will come the time when I will exercise it".

At no time during the interview did the Corporal try to clarify what the accused meant or had in mind so as to remove any ambiguity and misunderstanding. In fact the record of the so called interview simply lacks the elements of an interview simply because there are no questions which the accused can respond to; instead the court is given a narrative written by the Corporal purporting to be responses from the accused to the questions posed by the Corporal during the interview. For some unknown reasons the police have for a number of years reluctantly withheld putting on paper the questions and the responses to those questions when suspects of criminal offending are interviewed.

It is well settled that the right to counsel of an accused person arrested by the police should be made clear to the accused, and any questioning by the police of the accused shall be on hold for a reasonable time to enable the accused to obtain legal advice. See Police v Vaasili Piula (C.A. 2/93) and A-G v Semi Tupai Ueti CA (24/93) (both decisions of the Samoa Court of Appeal). Until the accused has been given the reasonable opportunity to consult counsel the police must refrain from eliciting answers or statement from him.

The accused here is a 61 year old man who was seen by Corporal Sagapolutele about 6 a.m. on the 2nd June 2004 after he voluntarily went to the Police at Apia. He could not have left voluntarily if he wanted to because the police wanted him and there was sufficient evidence to charge him. He was under arrest. Understandably he was informed of his rights orally and in writing at the commencement of the interview. According to the statement recorded by the police, the accused told the police he understood his right to counsel but to wait until another time. The 2nd of June is a national holiday; it is a celebration of Independence; the accused was remanded in custody (according to court file records) on the 2nd June to the 7th June when he was further remanded in custody to the 21st June. Hence the interview could have been delayed to the next day the 3rd June. If the right to counsel is to be effective the Corporal should refrain from interviewing the accused until the accused has had reasonable opportunity to consult counsel: R v Taylor (1993) 1 N.Z.L.R 647; A-G v Semi Tupai Oeti (supra) which also endorsed what was said in R v Etheridge (1992) CR NZ 268 that what is a reasonable time will be a question of fact depending on all the circumstances.

The crucial question for determination is whether the accused understood from what the Corporal told him, that he had a right to reasonable opportunity to obtain legal advice before the interview will continue. There is nothing in the recorded statement to suggest to the accused that the interview will be on hold if he wishes to obtain legal advice then. The statement in relation to right to counsel says:

"I have been informed by Police Corporal Ualesi Sagapolutele that I have the right to contact a lawyer to help me at the moment and during my court case".

"I have been given a green police card which explains my rights, and I understand my right, but come a time when I will exercise it".

Since the accused has chosen to exercise his right to counsel at some uncertain time in the future it became incumbent on the Corporal to explain to the accused that his right to counsel must be exercise within a reasonable time or that he has reasonable opportunity to obtain counsel. It is necessary that the accused should understand his right. What is said to the accused must bring home to him the substance of his right to legal advice without delay. It is not sufficient to tell the accused that he has a right to legal advice now or some other time or both.

In my view the information given by the Corporal was ambiguous and insufficient to inform the accused the nature of his right. Secondly the response by the accused should have put the Corporal on notice that the accused does not understand or fully appreciate the nature of his right so that the Corporal was obliged to take steps to ensure the accused understood his rights. As a consequence I cannot accept that the Corporal can reasonably consider that what he said to the accused did result in the accused understanding his right to legal advice without delay.

Indeed the evidence of the Corporal under cross examination suggests strongly that the Corporal was either mistaken as to the real purpose of article 6(3) or he was simply going through the motions of appearing to comply. I say this because after informing the accused for his right to counsel and of his right not to say anything the accused exercised his right to remain silent. Counsel for the defence then questioned the Corporal why the interview which should have lasted a few minutes (because the Corporal had sufficient evidence to charge the accused and the accused has elected to remain silent) continued for about twenty minutes. In response the Corporal said he had the right under rule 1 Judges Rules to continue questioning in order to elicit a response (page 34 16/8/05 transcript lines 3-5 and lines 13-14). Rule 1 Judges rules has no relevance in the questioning of this accused by the Corporal simply because that rule entitles a police officer investigating a crime to question anyone whether a suspect or not whom he considered he will obtain answers to discover the offender. When the Corporal interviewed several persons in the afternoon of the 31st May after the incident was reported to the police he was complying with that rule. But when he interviewed the accused on the morning of the 2nd June, article 6 (3) came into play because the accused was under arrest and there was sufficient evidence to charge him and he was in fact immediately charged and remanded in custody for a total period of 19 days.

The accused has been deprived of his right to consult counsel within a reasonable time contrary to article 6 (3) and the statement should be ruled out unless the prosecution can show some special reasons making it fair for the court to exercise its discretion to admit it. I see no special reasons for departing from the prima facie rule of exclusion and the statement is accordingly ruled inadmissible.

Having reached that conclusion I consider it is unnecessary to rule on the second ground of objection.

JUSTICE VAAI