Police v Masame [2007] WSSC 66 (21 August 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

TAGALOA RUNI MASAME
Accused

Counsel: P Chang and M T Lui for prosecution
R Papali’i for accused

Ruling: 21 August 2007

RULING OF SAPOLU CJ

The charges

The accused stands trial on two charges under the Narcotics Act 1967. The first charge is possession of narcotics, namely, 5 marijuana branches and marijuana leaves wrapped in a bed sheet, 48 marijuana seeds and loose leaves, and a half joint of marijuana. The second charge is for possession of a pipe for the purpose of the commission of an offence against the Act.

Nature of proceedings

These are voir dire proceedings to determine the challenge made on behalf of the accused to the admissibility of a written statement given by the accused to the police. The two grounds on which the challenge is based are: (a) the common law ground that the accused’s statement was not voluntary, and (b) the constitutional ground that the accused’s statement was obtained by the police in breach of the accused’s right to counsel under Article 6(3) of the Constitution.

The only witness who was called on the voir dire was sergeant Alefaio Featea’i who obtained the accused’s written statement. The defence called no evidence.

Factual background

Essentially what happened, as it appears from the evidence of sergeant Alefaio Featea’i (sergeant Alefaio), is that on early Saturday morning, 14 January 2006, a police party went to search the house of the accused at Tulaele. The purpose of the police search, as it appears from the subsequent events that morning, was for narcotics. When the police arrived at the accused’s house, they had some difficulties getting to it as it is surrounded by a concrete fence and the entrance gate was locked. Some of the police officers climbed over the concrete fence but when they got to the accused’s house it was also locked. It was difficult to see into the house unless you were very close to it as the windows are tinted. Eventually, the police were able to enter the house which they then searched.

The house of the accused is one storey. It has an underground room which can be reached by steps inside the house. Sergeant Alefaio testified that when he went down to the underground room, he found sergeant Samuelu Afamasaga (sergeant Samuelu) talking to the accused and showing him the marijuana substances and the pipe which the police had found inside his house in the underground room. Sergeant Samuelu also informed the accused of his right to silence and his right to contact a lawyer. The substances found inside the accused’s house were then given to the police exhibits officer and the police left in their vehicles. The accused was brought to the police station in one of those vehicles. The marijuana substances and pipe were also brought in the same vehicle. Sergeant Alefaio and other police officers returned to the station in a different vehicle.

When the police arrived at the station, the marijuana substances and the pipe were given by the exhibits officer to sergeant Alefaio who had been instructed by the police inspector in charge of the search party to conduct the interview of the accused. Sergeant Alefaio placed those marijuana substances and the pipe on the table where the interview was to be conducted. The interview started at 12:15pm. Another police officer was present to witness the interview. What took place at the interview appears from the oral testimony of the police sergeant and the record of the interview.

At the start of the interview sergeant Alefaio pointed out to the accused the marijuana substances and the pipe which the police had found inside his house. The police sergeant then read out in Samoan from the caution card the rights of a suspect. The first right which was read out was the right not to make a statement unless the accused wishes to do so but any statement he makes would be taken down in writing and may be used in evidence. The accused was then asked whether he understood his right and he replied yes. The accused was further asked whether he wanted to exercise his right. He replied that he did not want to make a full statement. The police sergeant testified that he understood the accused’s answer to mean that he was willing to make a statement but not a full one. The accused’s answer is in Samoan and I accept the police sergeant’s understanding of the accused’s answer. It is implied in that answer that the accused was saying he would make a statement but he did not want it to be a full statement. There is also no evidence to show that what the police officer understood the accused to mean was not what the accused meant by his answer.

The police sergeant then read out in Samoan from the caution card the accused’s right to counsel. This is the right to counsel set out in Article 6(3) of the Constitution. The accused was also asked whether he understood his right and he replied yes. He was then asked whether he wanted to contact a lawyer to be present at the interview. He named a lawyer he wanted to contact and gave to the police sergeant that lawyer’s office phone number and cellular phone number.

The police sergeant then read out in Samoan from the caution card the accused’s right to engage counsel to act for him in Court if he was charged. The accused was asked whether he understood his right and he again replied yes. He was then asked whether he wanted to exercise that right and he told the police sergeant to contact the lawyer he had already named. The police officer who was present to witness the interview then called that lawyer on the phone numbers provided by the accused. However, there was no response from the lawyer’s office phone or cellular phone. The accused then requested that he wanted to contact another lawyer and gave that lawyer’s phone numbers to the police sergeant. That lawyer was contacted on the phone numbers provided by the accused but again there was no answer. The accused then said to leave it until some other time.

The police sergeant then informed the accused that he had some questions to ask him. The accused was then asked about his name, age, marital status, real village and where he permanently resides. To the last question the accused replied that he resides in his house at Tulaele. He was then asked as to who owns the house in which he was found by the police and he replied the house belongs to him and his wife. The accused was then asked whether the marijuana substances and the pipe were the substances the police had found inside his house. He replied they were the substances found by the police inside his house. The accused was then asked to explain those substances. He replied that the marijuana substances wrapped in the bed sheet were found inside his room and the tube was used to smoke "ice" and marijuana. However, he had stopped using "ice" for about six weeks. The police sergeant then told the accused that he had no further questions unless the accused had a question he wanted to ask. That was the end of the interview.

It would appear that the police sergeant had already known the answer to the question whether the marijuana substances and the pipe were the substances and the pipe found inside the accused’s house by the police because the police sergeant was a member of the police team that searched the accused’s house. He was also present when sergeant Samuelu showed those substances to the accused in the underground room of his house. The police sergeant was also already aware from the circumstances of the search that the accused was, at least, an occupant of the house especially as the police found the accused in the underground room. The police sergeant must also have been aware before the interview that the house in question was that of the accused because he testified that the police went to Tulaele to search the house of the accused.

Grounds of challenge

The admissibility of the statement made by the police is challenged on two grounds. The first ground is that the statement was not voluntary; the second ground is that the statement was obtained in breach of the right to counsel under Article 6(3) of the Constitution. I will refer first to the legal principles which are relevant to the first ground and then to the legal principles which are relevant to the second ground. In referring to the legal principles which are relevant to the first ground, I will also be referring to the closely related principle that evidence which have been unfairly obtained by the police from an accused may be excluded in the exercise of the Court’s common law discretion.

Legal principles

(a) Voluntariness and unfairness

Where the admissibility of a confession, which term includes an admission, made by an accused to the police is challenged on the ground that it was not voluntary, the position in Samoa has been that a confession is admissible if it was voluntary. The onus of proving that the confession was voluntary is on the prosecution. If the prosecution is unable to prove that the confession was voluntary, then it is not admissible and must be excluded unless s.18 of the Evidence Ordinance 1961 applies.

The standard of proof which the Samoan Courts have required of the prosecution when proving whether a confession was voluntary has been one of beyond reasonable doubt: Police v Aotua Leilua [1998] WSSC 15 per Moran J; Police v Junior Sale [2000] WSSC 49 per Wilson J. Proof beyond reasonable doubt is also the standard required of the Crown in England to prove that a confession was voluntary: DPP v Pin Lin [1975] 3 All ER 175 at p.182. The same standard of proof is also required of the Crown in this context in New Zealand: R v McCuin [1982] 1 NZLR 13. The position is different in Australia where the standard of proof required of the Crown to prove that a confession was voluntary is on the balance of probabilities: Wendo v R [1963] HCA 19; (1963) 109 CLR 559.

The Samoan Courts have also, on the very rare occasion, excluded a confession which, though voluntary, was unfairly obtained by the police from the accused. In doing so, the Samoan Courts were applying the decision of the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426 per Turner J at p.438. Under the principle stated by Turner J, a confession may be excluded in the exercise of the Courts common law discretion on the ground that it was unfairly obtained.

A recent comprehensive statement of those principles is provided in the case of The Queen v Shard Amad Ali [1999] NZCA 292, cited by counsel for the prosecution, where Richardson P in delivering the judgment of the New Zealand Court of Appeal said:

"[41] It is well settled that there are two broad grounds on which in a criminal trial a confession obtained by the police from the accused may be ruled out by the trial Judge. One is that the Crown has not proved the statement to be voluntary and that s.20 of the Evidence Act 1908 is not satisfied. The other is the Judge’s discretion at common law to refuse to admit a statement which has been obtained unfairly: even though a confession is held to be voluntary the trial Judge may exclude it if it has been obtained by improper or unfair methods.

"[42] In this regard it is sufficient to refer to relevant passages in two cases in this Court. First, in R v Wilson [1981] 1 NZLR 316, 322:

"‘ To recapitulate, there are two broad grounds on which confessions may be excluded, namely (i) failure by the prosecution to prove that the confession was voluntary, in which case it must be excluded unless s.20 of the Evidence Act 1908 applies; (ii) unfairness, a discretionary ground of exclusion as to which the Judges’ Rules provide some general guidance"’

"[43] Second, in R v Tuhua (CA 272/88, judgment 22 November 1988):

"‘ Evidence of a confession obtained by the police from an accused person may be excluded on two broad grounds. The first arises where the Crown cannot affirmatively prove beyond reasonable doubt that the statement was voluntary. The second ground relates to the discretion of the Judge to refuse to allow evidence to be given of a confessional statement which has been obtained unfairly. Under this head the Judges’ Rules provide a guide to fairness. In the weighting to be given to instances of a non-compliance with the Judges’ Rules... and more broadly in the assessment of whether evidence was unfairly obtained, the Courts endeavour to achieve a proper balance between two competing policies; on the one hand of protecting accused persons from inquisitorial attack and on the other of conceding to the police a proper degree of freedom in pursuing their investigations’.

"[44] At common law, no statement made by an accused is admissible unless it is affirmatively shown to have been made voluntarily. It has to have been made voluntarily in the sense of not being obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority; and also in the broader sense of being made in the exercise of the accused’s own free choice. As Dixon CJ said in R v McDermott (1948) 7 CLR 501, 511:

"‘ If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary.’

"[45] The common law rule is subject to a qualification imposed by s.20 of the Evidence Act 1908...In terms of s.20 a confession, whether obtained under a promise or threat or any other inducement (not being the actual exercise of violence or force or other form of compulsion) is admissible if the Court is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made’

"[46] As a question of admissibility it is a question for the Judge. The burden of proof is on the prosecution and the standard of proof is beyond all reasonable doubt (R v McCuin [1982] 1 NZLR 13). The initial voir dire is not final: the matter may be reviewed at later stages in the trial if further evidence emerges (R v Watson [1980] 2A11 ER 293); or simply because the Judge has had a change of mind (R v Watson [1999] NZCA 110; [1999] 3 NZLR 257)".

Section 20 of the Evidence Act 1908 (NZ) is identical in terms to s.18 of our Evidence Ordinance 1961. Section 18 provides:

" A confession tendered in evidence in any criminal proceeding shall not be rejected on the ground that a promise or threat or any other inducement (not being the exercise of violence or force or other form of compulsion) has been held out to or exercised upon the person confessing, if the judge is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made".

On the second broad ground by which a statement may be excluded in the exercise of the Courts’ discretion on the basis that it was unfairly obtained, Richardson P went on to say in The Queen v Shard Amad Ali [1999] NZCA 292:

"[47] In relation to the exclusion of statements obtained unfairly, the passages in Wilson and Tuhua noted that the Judges’ Rules provide some guidance as to fairness. Rule 2 requires a police officer who has made up his or her mind to charge a person to caution that person before asking any further questions. And rr3 to 8 relate to precautions to be observed when taking statements from persons in custody. Rule 9 requires a statement made in accordance with the Rules wherever possible to be taken down in writing and to be signed by the suspect. The reference is to a statement following a caution, the caution, of course, including the words ‘whatever you say will be taken down in writing’. And as this Court emphasised in R v Milina (CA 300/94, judgement 21 March 1994), even if r9 does not strictly apply, speaking generally it is good police practice for all interviews with suspects to be recorded in one form or another so that the Court can be given a more accurate account than is likely from the officer’s reliance on memory: R v Mason [1988] NZCA 370; [1988] 2 NZLR 61’.

"[48] More broadly, as to fairness of police processes, Lord Hailsham said in Wong Kam-ming v R [1980] AC 247, 261:

"[Any] civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions’.

"[40] Similarly, in R v Convery [1967] NZCA 37; [1968] NZLR 426 Turner J said at 438:

"‘ The Court, in deciding whether a statement has been so unfairly obtained as to result in its rejection in the exercise of the Judge’s discretion, does not narrowly inquire whether the Judges’ Rules, or any of them, technically construed, have been broken in the course of the inquiry under review, but rather whether the course of the inquiry, as proved in evidence, makes it unjust that the statements should be received’.

" The Judge continued:

"‘ In answering this inquiry the Court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure in the generality of cases’.

"[50] See to the same effect R v Hartley [1978] 2 NZLR 199 at 218 and R v Ormsby [1985] NZCA 14; [1985] 1 NZLR 311 at 313. And in R v Mason [1991] 1 NZLR 458, when considering whether to exclude evidence, the Court said at 463:

" The question is whether the Court ought to exercise its general supervisory and disciplinary responsibilities to emphasise the need for the police to comply with the requirements of the statutes under which they exercise their powers’.

"[51] It is, then, a matter of looking at the totality of the police conduct. What is important is the overall question of the fairness of the police methods (R v Wilson at 322). And the issue of fairness is determined by the Judge as a matter of judgment rather than by reference to the onus of proof (R v Williams [1990] NZCA 345; (1990) 7 CRNZ 378, 383: R v Marsh (1991) 7 CRNZ 465, 471; R v Te Kira [1993] 3 NZLR 357, 374)".

(b) Right to counsel

The right to counsel of an accused is provided under 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".

Where in a criminal trial the admissibility of a confessional statement is challenged on the ground that it was obtained in breach of the right to counsel provided in Article 6(3), the approach adopted by the Samoan Courts to such a challenge is that stated in Attorney-General v Semi Tupa’i Ueti (1994) (C.A. 24/93, judgement delivered on 5 May 1994). In that case, Cooke P in delivering the judgement of the Court of Appeal said:

" The principles evolved by the New Zealand Courts are that, where there is an evidential foundation for the view that a confession has been obtained by breach of the Bill of Rights, the onus is on the prosecution to negative that conclusion on the balance of probabilities; and if the breach is not so negatived, the statement should prima facie be ruled out in the absence of some special reason making it fair and right to admit it. The mere fact that the police acted in good faith or that there is other evidence (in the form of alleged admissions or otherwise) pointing to the accused’s guilt are not such special reasons. Nor, even more obviously, are the seriousness of the offence charged or the likelihood that the prosecution will fail unless the statement is admitted. See generally Police v Kohler [1993] 3 NZLR 129; R v Te Kira [1993] 3 NZLR 257".

The approach stated by Cooke P in Attorney-General v Semi Tupa’i Ueti has been followed by this Court in subsequent cases, see for example Police v Lepopoi Schwenke (1996) (Crim Nos: s.301 & 302/25, judgement delivered on 14 March 1996). In terms of this approach, where there is a challenge to the admissibility of a confessional statement on the ground that the statement was obtained in breach of the accused’s right to counsel, the onus is on the prosecution to negative the alleged breach of the right on the balance of probabilities. If the prosecution is unable to negative the alleged breach then the statement would prima facie be excluded unless there is some special reason making it fair and right to admit it. The onus is again on the prosecution to show that there is special reason making it fair and right to admit the statement and the standard is again proof on the balance of probabilities though at this stage it may be more a matter of judgment than proof of facts: R v Te Kira (1993) 9 CRNZ 649 per Cooke P at pp.655-656.

The special reasons which would justify departing from the prima facie exclusion rule were set out in R v Goodwin [1993] 2 NZLR 153 where Cooke P in the New Zealand Court of Appeal said at p. 171:

" New Zealand cases have already yielded a number of examples of good reasons for departing from the prima facie exclusion rule. They include or may include waiver of rights by the person affected; inconsequentiality, in the sense that the Court can be satisfied that the admission would have been made without a breach; reasonably apprehended physical danger to the law enforcement officer or other persons; other reasons for urgency such as the risk of destruction of evidence; and the triviality of the breach if it is only a marginal departure from the individual’s rights. These are examples or possible examples. Further experience of the operation of the Bill of Rights Act may produce more".

Another way of putting the special reason of inconsequentiality where the prosecution has been unable to negative a breach of the right to counsel on the balance of probabilities is to say that there was no ‘real and substantial’ connection between the making of the statement and the breach. As Cooke P stated in R v Te Kira (1993) 9 CRNZ 649 at p. 654:

" A ‘real and substantial’ connection test between the breach and a subsequent damaging statement is another way of putting the inconsequentiality test..."

At p. 666, Richardson J stated:

" The more difficult question is to determine what causal link or connection is required between the violation and the proposed remedy. Where the concern is the effect on the admissibility of evidence there is no justification for importing all the complexities of causation rules that at times have bedevilled inquiries in tort. What is both necessary and sufficient is that there is a real and substantial connection between the violation and the obtaining of the evidence. To treat a slender temporal link as sufficient in circumstances where it cannot be said that the breach affected the obtaining of the evidence is in my view contrary to the statutory intent".

Counsel for the accused in her submissions said that the accused’s confessional statement was obtained in breach of the accused’s right to counsel because the police did not give the accused a reasonable opportunity to consult a lawyer. She argued that the interview was held on a Saturday afternoon when the offices of lawyers would be closed. The accused had told the police officer he wanted to contact a lawyer and gave the names and phone numbers of two lawyers. After the police had tried unsuccessfully to contact those lawyers and the accused said to leave it until another time, the police should have postponed the interview until Monday when the lawyers would be at work and the accused would be able to contact the lawyer he wanted. There was no urgency to proceed with the interview on Saturday afternoon.

Counsel for the accused relied on Attorney-General v Semi Tupa’i Ueti (supra), where Cooke P said in relation to giving an accused a reasonable opportunity to contact a lawyer at the time of a police interview:

" 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: R v Manninen (1987) 41 DLR (4th) 301; R v Taylor [1993] 1 NZLR 647. What is a reasonable time will be a question of fact depending on all the circumstances: R v Etheridge (1992) 9 CRNZ 268. In this case it might have been difficult to contact a lawyer on the Sunday afternoon, but there was no particular urgency and no reason why the interview could not have been delayed until Monday".

The outcome of the confessional statement in Attorney-General v Semi Tupa’i Ueti was that the statement was still held to be admissible because the Court inferred from the circumstances that the accused was willing to make a statement without legal advice.

Counsel for the prosecution in their helpful citation of authorities provided a copy of the recent decision of the New Zealand Court of Appeal in the case of R v Shaheed [2002] 2 NZLR 377. That case was concerned with an alleged breach of the right against unreasonable search and seizure under s.21 of the New Zealand Bill of Rights Act 1890. However, the statements in the joint judgement of Richardson P, Blanchard and Tipping JJ as well as the individual judgments of McGrath J and Anderson J do suggest that the prima facie exclusion rule which used to be applied to violations of the rights under the Bill of Rights is no longer generally applicable in New Zealand to such rights. The Court in R v Shaheed decided that the approach to be applied to determine the admissibility of evidence obtained in violation of a right under the Bill of Rights is a balancing approach which is more flexible and wider in scope than the prima face exclusion rule.

As I understand counsel for the prosecution, they were suggesting that the Shaheed balancing approach should be applied to these proceedings. The problem with that suggestion is that the prima facie exclusion rule has been accepted by our Court of Appeal in Attorney-General v Semi Tupa’i Ueti. For this Court to apply the Shaheed balancing approach instead of the prima facie rule will be tantamount to this Court departing from the decision of the Court of Appeal in Attorney-General v Semi Tupa’i Ueti. In my view, this Court should apply the prima facie exclusion rule in the knowledge that it is no longer applicable in New Zealand where it originated from. Our Court of Appeal should perhaps, review the prima facie rule the next time it has the opportunity to do so.

Discussion

(a) Voluntariness and unfairness

As the evidence given by sergeant Alefaio during the voir dire shows, the accused was properly informed of his right not to say anything unless he wished to do so but anything he said would be taken down in writing and may be used in evidence. There is no dispute about that. When the accused was asked whether he understood his right he said yes. When the accused was further asked whether he wanted to exercise his right he replied that he did not want to make a full statement. This was understood by the police sergeant to mean that the accused was agreeable to make a statement but not a full statement. There is no evidence to show that the police sergeant’s understanding of what the accused meant was mistaken. In my view, the police officer’s interpretation of what the accused meant by his answer was clearly open on the evidence. In fact after the police officer had further informed the accused of his other rights and then put questions to him, the accused did not refuse to speak or tell the police officer that he had already said that he did not want to make any statement so as to suggest that the police officer had misunderstood the accused. The accused appears to have willingly answered those questions. The answer to the question of whether these are the marijuana substances and pipe found by the police in your house must have been obvious to both the accused and the police sergeant as both were present when sergeant Samuelu showed those items to the accused inside his house. There is also nothing to show that any promise, threat or inducement was held out or exercised by the police sergeant upon the accused before or during the time the accused was questioned at the interview. There is certainly no evidence that the police sergeant used any overbearing or coercive methods. In my view, the proper inference to be drawn from these circumstances is that the accused was willing to make the statement he gave to the police sergeant. I therefore conclude that the statement was voluntary and admissible on that basis.

(b) Right to counsel

It is clear from the evidence of sergeant Alefaio that the accused was informed of his right to counsel. There is no dispute about that. When the accused was asked whether he understood his right he replied yes. When the accused was further asked whether he wanted to exercise his right and he gave the police the phone numbers of the lawyer he wanted to contact, the police made reasonable attempts to contact that lawyer on the phone. When there was no response from that lawyer, the accused gave the police the phone numbers of another lawyer. The police again made attempts to contact that lawyer. When there was again no response from that lawyer, the accused told the police sergeant to leave it until some other time. The police sergeant then told the accused that he had some questions he wanted to ask him. Those questions were then put to the accused and he willingly answered those questions.

In my view, counsel for the accused is right that in terms of the right to counsel as explained in Attorney-General v Semi Tupa’i Ueti (1994) (C.A. 24/93, judgment delivered on 8 May 1994) the police should have afforded the accused a reasonable opportunity to exercise his right to counsel. There was no emergency or circumstance of urgency confronting the police to necessitate continuing with the interview after the unsuccessful attempts to contact the lawyers mentioned by the accused to the police. It was, after all, a Saturday afternoon and the offices of lawyers in Apia would be closed. One can understand the difficulties of contacting a lawyer at that time. The interview could have been deferred until Monday. For the police to continue with the interview was a breach of the requirement of the right to counsel that a reasonable opportunity should be given to an accused to exercise his right. In consequence, I hold that there has been a breach of the right to counsel and the prima facie exclusion rule applies.

The next step is whether there is some special reason making it fair and right to admit the statement notwithstanding the breach. In my view there is. That special reason is inconsequentiality, that is to say, there is no real and substantial connection, or sufficient connection, between the breach and the making of the statement. As it appears from the evidence of the police officer, the accused was willing to make a statement, though not a full statement, before he was informed of his right to counsel. The willingness of the accused to answer questions put to him, shortly afterwards, further suggests that he was willing to make a statement which accords with the police sergeant’s uncontradicted understanding of what the accused meant by his previous answer. The context in which the accused gave his answers to questions from the police sergeant is also relevant. The police had just earlier that day found in the house of the accused, in the underground room, in the presence of the accused the items with which he has been charged for being in possession of. Those items were also shown by the police to the accused inside his house. In all these circumstances, it would be a reasonable inference to draw that the accused was willing to make a statement, or give some kind of explanation, whether or not there was legal advice. In other words, the breach had no real and substantial connection with the statement being made. The breach was therefore inconsequential. On this basis, I rule that there is a special reason making it fair and right to admit the statement.

Conclusion

For the foregoing reasons, I conclude that the statement made by the accused to the police sergeant is admissible.

Before leaving his matter, I wish to thank counsel for the prosecution for their helpful citation of case law.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Toa Law for accused