Police v Penieli [2005] WSSC 30 (16 August 2005)

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: 12 August 2005
Date of Ruling: 16 August 2005

RULING ON THE VOIR DIRE

At the conclusion of the hearing on the Voir Dire I ruled that both statements by the accused Penieli are admissible. These are my reasons.

The accused Penieli Taelega is jointly charged with his father for the murder of his brother-in-law by assaulting the deceased with a bush knife on the 31st May 2004 at the village of Letogo. Both the accused and the deceased were admitted to the National Hospital the same day; police investigations also commenced and several eye witnesses were interviewed. On or about the 3rd June, some 3 days after the incident Corporal Sagapolutele went to the hospital to see the accused; as the investigating officer the corporal had sufficient evidence to charge the accused with wilfully causing grievous bodily injury (the deceased was then still alive). So the corporal was armed with the police green card which spells out in both the Samoan and English language the rights to remain silent and the right to consult counsel. After introducing himself and the reason for his visit the Corporal gave the accused the green card and the accused responded that he understood the contents of the card. To ensure that the accused did understand his rights, the corporal Sagapolutele orally reiterated to the accused his right to remain silent and his right to legal advice. In response the accused told corporal Sagapolutele not to be too concerned as he knew he had done wrong, and upon his discharge from hospital he will come to the police to decide what should be done with him.

On the 2nd July at lunch hour the accused went to the Apia police station after he was discharged from hospital and saw corporal Sagapolutele who again advised him of his rights to counsel and to remain silent. In response to his right to consult counsel the accused said he understood his right but he was uncertain and in response to the question as to what the corporal understood the accused’s response to mean the corporal replied:

“I asked him again and he gave the same response. He was of the view what did happen has happened.”

In his view the corporal believed the accused did not want a lawyer because he did not ask for one. A statement was then taken at 12.30 in the afternoon. He was then charged with causing grievous bodily harm.

When the deceased died on the 7th July the police wanted to talk to the accused who was eventually found at Vaivase village on the 12th July where he was informed by corporal Sagapolutele of the death of the deceased. He was again informed of his rights by giving him the police green card before he was brought to the police station to be charged with the current information of murder. At the police station the accused was told that the previous information charging him with causing grievous bodily injury will be amended to one of murder and the accused was again informed of his right to counsel to be present at the interview or to be present at the court hearing. In response the accused said he will probably talk to his lawyer tomorrow but he does not wish to say anything further other than what he has already told the police in his earlier statement except to say that he knew the cause of the death of his brother-in-law Eti Vaalele were from the serious injuries he (the accused) inflicted on the 31st May 2004 at Letogo.

Counsel for the accused Penieli objects to the admissibility of the two statements made by the accused to the police on the basis that the statements were obtained in violation of article 6.3 of the Constitution which provides:

“Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.”

Counsel relies on the response by the accused when he was told of his right to consult counsel; the accused said in his statement:

“I have been informed of my right to consult a lawyer to be present at this interview and during a court hearing. I understand my right but I am uncertain.

I have also been given the police green card containing my rights and I understand it.”

Counsel submits that when the accused was interviewed by the police corporal on the 2nd July 2004 before the first written statement was taken, the accused was uncertain as to whether he should consult counsel then and the interview should have stopped until the accused was certain whether to exercise his right to counsel. But the police corporal in his evidence in chief on the voir dire told the court he did put the question again to the accused who responded by saying what did happen has happened. The following questions were then put to the police corporal under examination:

17. Did he want a lawyer then to be present at the interview or did he not want a lawyer to be present at the interview?
1. Penieli did not want a lawyer at the time of the interview.
17. Why do you say that?
1. Because he did not say he wants a lawyer.
   

Under cross examination the police corporal said he gave the accused a list of the lawyers and their telephone numbers. Suggestion by defence counsel that the accused was only informed of his rights after he had given the signed statement was denied by the police corporal. I accept that the corporal informed the accused of his rights at the commencement of the interview and I also accept that the accused was under de facto arrest at the material time so that it was incumbent on the police to comply with article 6.3 by impressing on the accused that if he wish to consult counsel the interview will be deferred for a reasonable time to enable him to obtain legal advice. It is also necessary that the accused should understand his right to legal advice without delay; the words used by the police corporal must bring home to the accused the substance of his right to legal advice.

When the accused was told of his right to consult counsel and was asked whether he wish counsel to be present at the interview, the accused responded he understood his right and he was uncertain. The response prompted the police corporal to repeat the question and was told by the accused that what did happen has happened.

It must be remembered that on the 3rd June, three days after the incident the same police corporal saw the accused at the hospital and advised him of his right to counsel and the right to remain silent there and then so that when he came to the police on the 12th July he knew and understood his rights. He could have elected to have such advice before he went to the police on the 12th July.

In any event he was again advised of his rights on the 2nd July. He gave the same response when he told of his right to remain silent and his right to consult counsel. He understood his rights. But counsel is challenging the admissibility of the statement on the response to the police corporal when advised of his right to counsel but not for the very same response when advised of his right to remain silent. I accept from the unchallenged evidence of the police corporal that the question was repeated and the accused responded that what did happen has happened and I also accept that he was shown a list of lawyers before the interview continued and the statement taken.

The accused was certainly not left with the impression that access to a lawyer was not available until questioning was finished. In addition to being informed of his right to counsel he was given a list of lawyers; with their telephone numbers so that what was said and done by the police corporal did bring home to the accused the substance of his right. See R v Mallison [1992] NZCA 163; (1993) NZLR 528; and A-G v Semi Tupai Ueti (Samoa Court of Appeal CA 24/93 (5/5/94)) which also settled that the accused must understand that he had a right to a reasonable opportunity to obtain legal advice before any continuation of the interview. It follows from my findings that there has been no breach of article 6.3 of the Constitution.

Counsel for the accused also argued prior to the hearing of voir dire that the facilitation of right to counsel was not properly done. During his cross examination of the police corporal on the voir dire counsel asked questions which suggests that his complaint really was that the accused should have been questioned in privacy. The questioning went as follows:

Q: Corporal what about consultation in privacy?

A: Thank you - - at the office of the CIB the statement was taken at 12.30 noon, everyone has gone to lunch and there were only about 2 left. The CIB office is a huge one. I interview Penieli at one corner. I did not invite the public to come and listen to the investigation of Penieli - - - - -“.

Q: Thank you – of course privacy here means just you and Penieli would that be correct?

A: At the side where we were talking only the two of us and another police officer.

Q: And of course, at the side, still the open police station where like you said early it was about 4 or 5 officers there, is that correct?

A: Like I said the CIB office is old and a lot bigger than this room, desks are far apart, - - - there was sufficient space for our privacy – - - .

It thus follow from cross examination by counsel that his real complaint was that the accused was not questioned in private and his rights under article 6.3 should have been put to him in private away from the public arena. The argument simply lacks sense. The right to consult and instruct a lawyer within a reasonable time carries with it the right to consult and instruct in privacy. The right to privacy is inherent in the right to counsel as Cooke J (as he then was) recognized in Police v Kohler (1993)3 NZLR 129 at 132 line 36:

“A right to consult and instruct a lawyer without delay carries with it the right to consult and instruct in privacy. The traditional and necessary confidentiality of the lawyer – client relationship is an implicit requirement.”

As the accused did not wish to consult and instruct a lawyer the issue of consultation in privacy accordingly did not arise.

I now turn to consider the admissibility of the statement made on the 12th July. Again I find that there has been no breach of article 6.3. when the police were informed of the death of the deceased the accused was located, informed of the death, informed of his rights before he was brought to the police station where he was again informed of his rights and of the charge of murder.

In response the accused said he will probably talk to his lawyer the next day but he does not wish to say anything further other than what he has already stated in his earlier statements. His reference in his statement to the injuries he inflicted were never denied at the commencement of the trial before the statements were challenged. His defence rest solely on self defence and defence of his father the co-accused. His response clearly indicated he did not wish counsel to be present at the interview.

Inevitably I find both statements admissible.

JUSTICE VAAI