Police v Nauer [2007] WSSC 32 (30 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LAKI "LUCKY" CONRADE NAUER,
male of Lotopa, Laloanea and Satapuala
Defendant.

Counsels: Ms Toohey and Mr Koria for prosecution
RS Toailoa for defendant

Hearing: 26 & 27 March 2007
Ruling: 30 March 2007

RULING OF NELSON, J. (on a voire-dire)

As a result of the evidence given by Senior Sergeant Pati, the issue of the admissibility of a cautioned statement given by the accused to the police when he was interviewed on 30th January 2006 arose. The issue arose it is claimed as somewhat of a surprise to counsel for the accused who said he had no knowledge, and no prior notice the police were seeking to introduce the cautioned statement into evidence as it was in his view clearly inadmissible as it was obtained in breach of the accuseds constitutional rights. Accordingly counsel sought a voir dire be conducted into the admissibility of the statement.

A voir dire was accordingly carried out and the only evidence heard on the voir dire was that of the investigating officer Senior Sergeant Pati. No other witnesses were called by either the prosecution or the accused. A copy of the cautioned statement was accepted into evidence for the purposes of the voir dire and was tendered as "Exhibit P-5" for the prosecution. The statement essentially is a record of the interview of the accused but it is clear from that record, the accused was not interviewed by Detective Sergeant Pati. The primary interviewer was another police officer Detective Sergeant Frost who was not called as a witness as he is overseas. The function of Detective Sergeant Pati was merely to record what was said during the interview. He played no other part in the interview.

Counsel agreed that a copy of the cautioned statement could be used for the purposes of the voir dire as opposed to the original and indeed the copy was confirmed by the police officer to be a true and correct copy and was his record of the interview.

Argument as to the admissibility of the statement arises because it is clear from pages 2 and 3 that the accused was advised as to his constitutional right to silence and constitutional right to counsel and he indicated that he wished to exercise his right to silence and his right to counsel. Nevertheless the questioning continued and at the very end of the interview an incriminating admission was obtained by the interviewing officer such admission relating to ownership of the vehicle involved in these proceedings, wherein it is alleged the narcotics which is the subject of the charge were found.

After reviewing the evidence and hearing counsel I am of the view the cautioned statement is inadmissible. It is clear the accused wanted to exercise his right to silence and his right to counsel and this from his answers to the questions as recorded on page 3 of the interview record. The interview should have been terminated at that stage and the accuseds counsel advised or given an opportunity to be present. If authority be needed for that basic point, reference can be made to the decision of the Court of Appeal in The Attorney General v. Semi Tupai Ueti [1994] WSCA 136 in particular p140 where Sir Robin Cooke as he then was in delivering the judgment of the court said:

"In Police v Vaasili Piula (C.A. 2/93 judgment of Februry 1993) - the Court of Appeal (Morling, Reynolds and Roper JJ) expressed the opinion that, although there is no express requirement in article 6(3) to inform the arrested person of his right to counsel as in other jurisdictions, it may well be that an unexpressed requirement to that effect is to be imported into the article. They understood that providing the information was a standard practice in Western Samoa and they expressed the view that it should continue. We fully agree. Indeed Mr Edwards for the Attorney-General accepted that there is an implied obligation in article 6(3) to inform the arrested person promptly of his right to a lawyer. This point may now be taken to be settled.

Plainly the information to be of value and to give due effect to the constitutional provision, should be conveyed before any statement is taken. And it should be made clear that, if the person arrested wishes to consult a lawyer, any questioning will be deferred for a reasonable time to enable the person to obtain legal advice. For, if the right to counsel is to be effective the police must refrain from eliciting evidence until the accused has had a reasonable opportunity to consult counsel."

That is the procedure laid down by the Court of Appeal for this jurisdiction and it has been applied and followed in a number of subsequent cases. Instead of this being adhered to, the detective sergeant kept up his questioning at the end of which he obtained the incriminating admission that the vehicle in question in these proceedings belonged to the accused. That admission was obtained in clear breach of the defendants constitutional rights and accordingly I find that admission and his cautioned statement inadmissible for present purposes.

I have considered whether the recent decision of the New Zealand Court of Appeal in R v Queen Williams and others [2007] NZCA 52 changes or should change the law in this jurisdiction as argued by counsel for prosecution. I am of the view that authority is of persuasive value only and the binding authority on this court is that of our Court of Appeal who have considered the admissibility of confessions and admissions obtained in breach of a defendants constitutional rights on a number of occasions, and those decisions do not depart from the principle laid down in Tupai. Until the recent New Zealand development has been fully argued, and I must note it was not so fully argued here because of the surprise nature in which this voir dire arose and because defence counsel was not even aware of the Williams decision and had been given no notice by the prosecution that they would be relying on that decision to argue for admissibility of the cautioned statement, and until the application of this New Zealand decision is fully argued accepted at an authoritative level by the Court of Appeal, the present law continues to subsist. And that law requires in my respectful view that this document be ruled inadmissible.

I would in any event question the applicability of cases such as R v Williams and before that the landmark New Zealand Court of Appeal decision in R v Shaheed [2002] 2 NZLR 377 as they involved the admissibility of evidence obtained by an illegal or unlawful search and seizure. That is not the case here. Furthermore, we have no provisions similar to s.21 of the Bill of Rights Act 1990 (NZ) or the Evidence Act 2006 (NZ) under which these decisions were made. The difference in statutory regimes may well make them of limited value to this jurisdiction but the point remains open.

The defendants non appearance for the purposes of todays decision is excused by consent but he will be required to appear at the next calling of this matter. Defendant is remanded on bail to the 02/04/07 for mention and to set a new date to complete this matter.

NELSON J.