Police v Sua [2007] WSSC 85 (14 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

FAIVALU SUA aka FAIVALU FAITASIA
male of Fagalii-uta.
Accused

Counsel: L S Petaia and K Koria for prosecution
T R S Toailoa for accused

Voir dire: 13, 14 November 2007
Ruling: 14 November 2007

RULING OF SAPOLU CJ

Introduction

The accused is charged that at Fagalii-tai on the 23rd day of January 2005 by an unlawful act, namely, assault, he caused the death of Tilomai Lino Luafalealo, a female of Solosolo, thereby committing the crime of murder. After several adjournments, the case came up for trial commencing on Tuesday 13 November 2007 before myself as presiding Judge and a panel of assessors. Before the commencement of trial, and after an application by the prosecution for a further adjournment of proceedings was denied, counsel for the accused informed the Court that the defence wishes to challenge the admissibility of the cautioned statements which the accused had made to the police. This challenge was founded on two grounds. The first ground is that the police did not inform the accused of his rights which were: (a) his common law right not to say anything unless he wishes to do so and that what he says may be taken down in writing and used in evidence and (b) his constitutional right to counsel as provided under Article 6 (3) of the Constitution. The second ground is that certain parts of the first of the two cautioned statements made by the accused to the police are inaccurate.

As it will appear shortly, when the evidence unfolded during the voir dire, the question of the voluntariness or otherwise of the two cautioned statements soon became increasingly prominent so that at the end of the voir dire it has become the real issue upon which the admissibility or otherwise of the cautioned statements turns. The first ground of the challenge, namely, that the accused was not informed of his rights no longer occupies centre stage and the second ground of the challenge has become a non-issue as the accused has confirmed in a general way that what appears in his cautioned statements is what he told the police.

Voir dire

For the purpose of the voir dire the prosecution called two witnesses, namely, senior sergeant Kerupi Luki (senior sergeant Kerupi) who interrogated the accused and obtained two cautioned statements from him and corporal Ualesi Sagapolutele who witnessed the interrogation of the accused and the obtaining of the first cautioned statement. Corporal Ualesi Sagapolutele has since left the police and I will refer to him in the remainder of this ruling as Mr Sagapolutele.

According to the testimony of senior sergeant Kerupi, on 10 February 2005, based on information the police had obtained from their investigations, he and other police officers went in a police vehicle and picked up the accused from where he was employed at Matautu-tai. Senior sergeant Kerupi testified that on their way to the police CIB with the accused, he gave the accused a caution card. This is the caution card which contains an accused person’s right not to say anything unless he wishes to do so, his right to counsel, and his right to legal representation at trial. When the police and the accused arrived at the CIB, it was about 1:00pm in the afternoon. The senior sergeant then gave the caution card to the accused again before starting to interrogate him. Present at the interrogation were also other police officers including Mr. Sagapolutele as witness to the questioning of the accused.

Senior sergeant Kerupi further testifies that at the start of the interrogation the accused denied any involvement in the death of the deceased by saying that he does not know anything about this matter and he was not involved in it. The accused maintained his denial throughout the interrogation until about 10pm at night when he finally admitted. The accused was then made to sleep on a single wooden form in the CIB until the following morning. Senior sergeant Kerupi also says that there were breaks during the interrogation for the accused to relax and also for himself to relax. During one of these breaks at about 7pm in the evening, the accused was questioned by one of the assistant commissioners of police. So while the senior sergeant was having a break at that time the accused was not. Senior sergeant Kerupi also says that in the course of the interrogation the accused would be questioned for about half an hour before each break. At times the accused was given a glass of water.

It is therefore clear from the evidence of senior sergeant Kerupi that the interrogation of the accused at the CIB on 10 February 2005 lasted nine hours from about 1pm in the afternoon to about 10pm at night. At all times, except when there were breaks, the accused was denying that he knew anything about this matter and that he was not involved in it. Finally at about 10pm, the accused admitted. It is not clear from the evidence of senior sergeant Kerupi what were the terms of that admission. But it would appear that the senior sergeant was determined to get an admission from the accused. The accused, as already mentioned, was then made to sleep on a wooden form in the CIB until the following morning. It is clear from the evidence that no record was kept of the questions asked and the answers given during the interrogation except for a few brief notes taken by the senior sergeant.

At 8:35am the following morning, 11 February 2005, after the accused had something to eat, the interrogation resumed. Senior sergeant Kerupi then informed the accused of his right not to say anything unless he wishes to do so but what he says may be taken down in writing and used in evidence, his right to counsel, and his right to legal representation at trial. As I understand the senior sergeant’s evidence, this was the first time the accused was verbally informed of his rights and asked whether he wanted to exercise them. On the other occasions on the previous afternoon when the police brought the accused from his place of work at Matautu-tai and when the police and the accused arrived at the CIB, the accused was only given the caution card without an explanation of the rights it contains and without any question whether the accused wanted to exercise those rights or anyone of them.

After the accused was informed of his rights and asked by the senior sergeant whether he wanted to exercise them, the accused made the statement which is now being challenged. The statement was completed at about 10:30am. It consists of four typed written pages and is signed by the accused and witnessed by senior sergeant Kerupi and Mr Sagapolutele. It contains incriminating admissions by the accused.

After the statement was taken from the accused, the senior sergeant continued to talk with him inside the CIB. Senior sergeant Kerupi says he talked matai style (faa-matai) to the accused. Obviously the senior sergeant was still talking to the accused about the death of the deceased and the alleged involvement of the accused in it. Even though this was not described as further police interrogation of the accused, it seems to have the appearance of a subtle form of interrogation. There were breaks when the accused was left alone and then the talks resumed. So the talks between the accused and the police were on and off. Eventually at about 5:35pm on the same day, 11 February 2005, the accused made a second statement. In this second statement the accused made one correction to an admission in his first statement already made to the police. The correction appears to make the admission it corrects more incriminating than it was before and has the appearance of further strengthening the case by the police against he accused.

So it is clear that on 11 January 2005, the accused was the subject of further questions from the police and then talks with the police inside the CIB for nine hours before the second statement was made. From 8:35am to about 10:30am the accused was asked questions while his first stament was taken and completed. Then from about 10:30am to 5:35pm the police were still talking to the accused on and off in relation to the death of the deceased and his alleged involvement in it. This was done in a faa-matai but still effective style. After the second statement was made, the accused was then taken to Tafaigata prison at about 6pm where he was kept in custody.

The evidence given by Mr Sagapolutele relates only to the interrogation of the accused by senior sergeant Kerupi in the afternoon of 10 February 2005 and in the morning of 11 February when the accused made his first caution statement. It is in general confirmatory of the evidence given by senior sergeant Kerupi regrading what occurred on 10 February and the taking of the first caution statement on the morning of 11 February. I need not refer anymore to that evidence.

At the end of the prosecution’s evidence, counsel for the accused indicated that the accused would not give evidence. That concluded the evidence on the voir dire. I then asked counsel for submissions. Counsel for the accused directed his submissions primarily to the question of voluntariness or otherwise of the two caution statements made by the accused. He also submitted that the mere giving of the caution card by senior sergeant Kerupi to the accused when he was brought by the police from his place of work and at the start of the interrogation at the CIB on 10 February 2005 was insufficient to constitute informing the accused of his rights. Mr Koria for the prosecution submitted that the only grounds in relation to the admissibility of the accused’s caution statements specified by counsel for the accused at the start of the voir dire were that the accused was not informed of his rights and that certain parts of the first caution statement were inaccurate. Voluntariness was not specified as a ground of challenge.

This is correct. However, it soon became clear after the commencement of senior sergeant Kerupi’s evidence that the voluntariness of the two caution statements was highly questionable. Proceedings were then adjourned to this morning, Wednesday 14 November, for my ruling on the admissibility of the caution statements.

Instead of delivering my ruling when proceedings resumed this morning, I indicated to counsel that I have decided to re-open the voir dire. I then invited counsel for the prosecution to recall their witnesses if it is considered that the prosecution has been prejudiced in the examination and re-examination of its witnesses by the fact that the grounds specified at the beginning of the voir dire by counsel for the accused when challenging the admissibility of the caution statements did not include voluntariness. I also indicated to counsel for the prosecution that as the issue of voluntariness had clearly arisen from the evidence of the prosecution witnesses, particularly the evidence of senior sergeant Kerupi, and has been the primary focus of the closing submissions of counsel for the accused, I would not exclude the issue of voluntariness from consideration. Mr Koria for the prosecution politely indicated that he would recall senior sergeant Kerupi. Counsel for the accused, on the other hand, indicated that he would like to call the accused to give evidence on the issue of voluntariness.

The evidence given by senior sergeant Kerupi when he was recalled is substantially the same as the evidence he had given yesterday but with a few additional details to explain or clarify certain parts of that evidence. I will now set out that evidence. The senior sergeant says that he and other police officers brought the accused in a police vehicle from his place of work at about 1:00pm on 10 February 2005. Inside the police vehicle he gave the accused the caution card. When they arrived at the CIB he again gave the accused the caution card before the started to question the accused. From the beginning of the interview the accused denied the accusation. The interview was not continuous. It was on and off. After about every thirty minutes during the interview there was a break. At times the accused was given a glass of water. In total about four hours was spent on the actual interview and five hours for the breaks. During one of the breaks at about 7pm in the evening, the accused was questioned by one of the assistant commissioners. At about 10pm at night, the accused finally admitted. It is, however, not clear what the accused said when he finally admitted. The accused was then made to sleep on a single wooden form in the CIB. The next morning, at 8:30am, after the accused had something to eat, the interview resumed. The accused was informed of his right not to say anything unless he wishes to do so, his right to counsel, and his right to legal representation at trial. The accused then willingly made his first caution statement. This caution statement, as earlier mentioned, contains several incriminating admissions. After this caution statement was recorded and given to the accused to read and he confirmed that it was correct, ti was then signed by the accused. The senior sergeant and Mr Sagapolutele who were both present throughout the interview also signed the statement. This was about 10:35am in the morning.

Senior sergeant Kerupi reiterated that he then conversed with the accused. Other police officers might have also conversed with the CIB. At times, senior sergeant Kerupi would attend to his other police duties while the accused was still inside the CIB. The conversation would then resume. The length of the intervals between these intermittent conversations is not clear. But it is clear that the conversations related to the matter on which the police were investigating the accused and on which he had already made a cautioned statement. Seven hours later at 5:35pm in the afternoon, the accused wanted to make a correction to one of the admissions in the caution statement he had already made. Senior sergeant Kerupi then informed the accused again of his rights before the correction. As earlier mentioned, the correction made the admission it corrects more incriminating and thus enhanced the strength of the police case against the accused. Mr Sagapolutele was not recalled by the prosecution as he was not available. In any event, the evidence he had given in relation to the first caution statement was generally confirmatory of the evidence given by senior sergeant Kerupi.

When the accused was called to given evidence in relation to the issue of voluntariness, he says that at the start of the interview with senior sergeant Kerupi on 10 February 2005 inside the CIB at about 1:00pm, he denied the allegation against him by telling the senior sergeant that he did not know anything and he was not involved in this matter. He maintained that position in response to questions from the senior sergeant until 10pm at night. He said that at that time he was feeling very tired and wanted to go home. He then said to the senior sergeant to put the blame on him but another person, whose name need not be mentioned here, had been concealed. He also said God is looking down on this matter and to leave it to God. The interview then stopped.

The accused also said that at about 7pm, he was questioned by an assistant commissioner. This is consistent with the evidence of senior sergeant Kerupi. However, the accused’s evidence went further to implicate the assistant commissioner concerned by saying that the "taitai leoleo" threatened to assault him. His feelings changed at that time. From the accused’s evidence, it appears that after that threat he eventually admitted by saying to the senior sergeant to put the blame on him and he also mentioned the Almighty. There is a shift here in the accused’s evidence. At first he said he was very tired and wanted to go home. So he told the police officer to put the blame on him. However, he then said that the "taitai leoleo" threatened to assault him, which was at about 7pm, as if that was the reason for him saying about three hours later at 10pm to put the blame on him.

According to the accused’s evidence, when the interview stopped on the night of 10 February 2005, he was made to sleep in the CIB. The following morning after he had something to eat, the interview resumed. He confirmed that he was verbally informed of his rights by senior sergeant Kerupi before he made that statement. He also confirmed that after his statement was completed at about 10:30am the senior sergeant continued to converse with him on and off and at about 5:30pm in the afternoon the second statement was made. At that time he was very tired; he wanted to go home; and his feelings were different.

At the conclusion of the accused’s evidence, I invited the prosecution to call the assistant commissioner who has been implicated in the accused’s evidence. When the assistant commissioner was called to the witness stand counsel for the accused advised the Court that he had been instructed from the dock by the accused that that was not the "taitai leoloe" who threatened to assault him. The "taitai leoleo" who threatened to assault him was fair. Upon enquiry with counsel for the prosecution, it was discovered that one of the present police superintendents was in-charge of the CIB at the relevant time. He appears fair. The prosecution was asked to call him. When the superintendent was called and examined by counsel for the prosecution his evidence effectively denied that he threatened to assault the accused. He says that he normally knocked off from work at 4:30pm to 5pm in the afternoon when he was at the CIB. He was also not involved in the police investigations of this matter.

After consideration of the evidence given by the accused, I must say that while the accused’s evidence appears to be generally credible and consistent with the evidence of senior sergeant Kerupi, I do not believe the part of his evidence where he says that a "taitai leoleo" threatened to assault him. I therefore reject that part of the accused’s evidence.

Relevant legal principles

The most relevant statement of legal principles to Samoa on the question of voluntariness as a ground for determining the admissibility of a confessional statement is contained in The Queen v Shard Amad Ali [1999] NZCA 242. In delivering the judgement of the New Zealand Court of Appeal in that case, Richardson P said at paras [44] – [46]:

"[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 be made voluntarily in the sense of not being made 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 the R v McDermott (1948) 76 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 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 McGuin [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] 2 A11 ER 293); or simply because the Judge has had a change of mind (R v Watson [1999] NZCA 110; [1999] 3 NZLR 257)."

I had cited that passage in my ruling given in the voir dire held to determine the admissibility of the accused’s caution statement in Police v Tagaloa Runi Masame [2007] WSSC 66. I had also pointed out in that ruling that the onus of proving that a confessional statement was voluntary lies on the prosecution and the standard of proof which the Samoan Courts have required of the prosecution is beyond reasonable doubt.: Police v Aotua Leilua [1998] WSSC 15 per Moran J; Police v Junior Sale [2000] WSSC 49 per Wilson J.

Section 20 of the Evidence Act 1908 (NZ) which is referred to in The Queen v Shard Amad Ali [1989] NZCA 282 is identical to s.18 of our Evidence Ordinance 1961 which 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".

The material part of the passage cited from The Queen v Shard Amad Ali [1989] NZCA 297 is the quotation by Richardson P from the judgement of Dixon J (as he then was) in McDermott v The Queen (1948) 76 CLR 501, 511. In McDermott v The Queen at p.511, Dixon J said:

"[A] confessional statement made out of Court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made...This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by which means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority." (emphasis mine)

In Tofilau v The Queen [2007] HCA 59, Gummow and Hayne JJ in their joint judgment state at para 55 that the reasons of Dixon J in McDermott have rightly been taken as the authoritative statement of the common law of Australia on the admissibility of confessions. Further on at para 58, Gummow and Hayne JJ state that duress, intimidation, persistent importunity or sustained or undue insistence or pressure are all species of compulsion. In the decision of this Court in Police v Junior Sale [2000] WSSC 49, Wilson J said:

"The classical statement of the law regarding voluntariness is that of Dixon J (as he then was) in the High Court of Australia decision of McDermott v The Queen (1948) 76 CLR 501 at 511:

‘"If he (the defendant) speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary’.

"This statement of Dixon J, was approved by the Court of Appeal of New Zealand in Naniseni v R [1971] NZLR 269 and, very recently, by the High Court of Australia in R v Swaffield [1998] HCA 1; (1998) 151 ALR 98 per Toohey, Gaudron and Gummow JJ at p.117 and per Kirby J at p.,132".

The essential facts

It is clear from the evidence that the interview of the accused by the senior sergeant inside the CIB in the presence of at least one other police officer took nine hours from 1pm in the afternoon to 10pm at night. During all of that time the accused was denying that he knows anything and was not involved in this mater. Finally at 10pm, the accused told the senior sergeant to put the blame on him even though another person had been concealed and God was looking down at this matter and to leave it to God. The interrogation then stopped. The accused says that he was very tired at that time and wanted to go home. I accept that at 10pm at night the accused was not only physically but mentally very tired. He had earlier that day been picked up by the police from his place of work at 1pm in the afternoon. He must have started work that day at 8am in the morning which was then the usual time for work to start in the morning. From 8am to 10pm at night is a particularly long day for anyone.

From 1pm to 10pm the accused was interrogated by the senor sergeant though on and off. Notwithstanding the denials by the accused from the start of the interrogation that he does not know anything and was not involved in this matter, the interrogation continued until the accused agreed at 10pmn to admit. The evidence also suggests that from 1pm to 10pm the accused had nothing to eat except drinks of water and was perhaps permitted to smoke a cigarette during the breaks.

In the said circumstances and given the length of the interview, the gravity of the allegation with which the accused was being questioned, the persistent nature of the questioning in spite of the continuing denials by the accused, and the coercive nature of the environment in which the accused was in, there is no doubt that the accused was both physically and mentally very tired when he told the senior sergeant to put the blame on him even though another person had been concealed and God was looking down on this matter and to leave it to God.

The accused was then made to sleep on a single wooden form inside the CIB with the lights still on as there are always police officers on duty in the CIB for 24 hours every day and night. The accused’s bag which he had with him was used as his pillow. The following morning, after the accused had something to eat, he was informed by the senior sergeant of his rights and then the first caution statement was taken at 8:35am. In the circumstances, it is clear that this statement was the inevitable result of the interrogation that had taken place the previous day and night. There was a clear causal connection between the interrogation and the making of that statement. The accused, in my view, was psychologically still under the effect of the interrogation which ended at 10pm the previous night when he made the statement obtained from him 12½ hours later at 8:35am the following morning.

In the circumstances, I am in no doubt that the first caution statement was not voluntary in the sense that it was not made in the exercise of the accused’s own free choice.

After the first caution statement was recorded and signed by the accused, the senior sergeant and Mr Sagapolutele at 10:35pm, the senior sergeant continued to converse matai style (faa-matai) with the accused still in relation to the subject matter with which the accused had been interrogated on the previous day and on which the first caution statement had been obtained from the accused. This conversation was also on and off until seven hours later at 5:35pm when the accused made his second caution statement to correct a particular part of this first caution statement. Again it is not clear from the evidence whether during that seven hours of intermittent conversation the accused had anything to eat apart from the drinks of water he was given. So when the accused made his second caution statement, he had been in the CIB from 1pm the previous day to 5:35pm the following day, a period of time of about 28½ hours facing the senior sergeant during a substantial part of that period of time. In these circumstances and given what had taken place the previous day and night, I am in no doubt that the second caution statement was also not voluntary in the sense that it was not made in the exercise of the accused’s own free choice. All that happened the previous day and night and the following day are connected to one another. The second caution statement was just a consequence of the surrender by the accused that had taken place at 10pm on the previous night and continued on to 8:35am the following morning.

Law applied to the facts

I have already referred to McDermott v The Queen (1948) 76 CLR 501 at 511 where the relevant part of Dixon J’s judgement states:

"If the accused speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary."

Applying that statement of principles to the facts of this case, the question is whether in the circumstances the will of the accused was overborne by persistent importunity or sustained or undue insistence or pressure from the police officer who interrogated him. If so, then the statements were not made in the exercise of the accused’s own free choice and cannot be voluntary.

In my view, the manner in which the interrogation of the accused was conducted amounted to persistent importunity (that is persistent and pressing questioning for an admission), or sustained or undue insistence or pressure. The two cautioned statements obtained by the police from the accused were therefore made without the exercise of the accused’s own free choice and cannot be voluntary. The next question then is whether s.18 of the Evidence Ordinance 1961 applies to admit the statements. Before I go on to s.18, there is one aspect of the prosecution’s evidence that I wish to refer to.

Simply because an accused agreed or was willing to make a statement to the police at the time the statement was taken down in writing, does not necessarily mean that the statement was voluntary. That is because the reason why the accused may have agreed or was willing to make a statement was the result of some form of a threat, inducement, or some other form of undue pressure: for example, Arthurs v The State of Western Australia [2007] WASC 209 at para 7. So the Court when determining the voluntariness or otherwise of a confessional statement whose admissibility has been challenged, will not restrict its inquiry as to whether the accused at the time the confessional statement was made agreed or was willing to make the statement. The inquiry would be directed to the question of whether the confessional statement was voluntary in the sense that it was made in the exercise of the accused’s own free choice. This will require an inquiry as to what occurred before the accused agreed or was willing to make a statement to find out whether the statement was truly the result of the exercise of his own free choice.

Coming back to s.18 of the Evidence Ordinance 1961, the question is whether s.18 applies to admit the accused’s two caution statements which I have found not to have been voluntary. Section 18 applies only to admit a confessional statement made as a result of a promise or threat or any other inducement held out to or exercised upon the accused provided the other conditions in s.18 are satisfied. It does not apply to a confessional statement made as a result of "the exercise of violence or force or other form of compulsion".

I do not consider the persistent and protracted interrogation of the accused followed by the protracted conversation between the senior sergeant and the accused to be a promise, threat or inducement in terms of s.18. In my view, the persistent and protracted interrogation as well as the protracted conversation between the senior sergeant and the accused amounted to persistent importunity, or sustained or undue insistence or pressure and were therefore a form of compulsion in terms of s.18. I respectfully agree with what Gummow and Hayne JJ say in Tofilau v The Queen [2007] HCA 59 at para 58 that duress, intimidation, persistent importunity, or sustained or undue insistence or pressure are all species of compulsion.. As s.18 expressly does not apply to a confessional statement obtained as a result of "the exercise of violence or force or other form of compulsion", it follows that it does not apply to admit the accused’s caution statements which I find not to have been voluntary. Those statements are therefore not admissible.

I hope this ruling will not be interpreted to mean that the police are not allowed to question a suspect out of Court at all. The police are allowed to do so. But such questioning must not take the form of persistent importunity, or sustained or undue insistence or pressure. Whether the questioning of a suspect amounts to persistent importunity, or sustained or undue insistence or pressure will always be a question of fact.

Was the accused informed of his rights

One of the grounds raised by counsel for the accused for challenging the first caution statement is that the accused was not informed of his rights. In view of the conclusion I have reached that the two caution statements are not admissible as they were not voluntary, it is not necessary to discuss this ground of challenge in detail. The evidence is clear that the accused was only given the caution card when he was accompanied by the police to the CIB and upon arrival at the CIB before the start of the interrogation. The accused was verbally informed of his rights the following morning before he made his first caution statement and later the same afternoon before he made his second caution statement.

In my view, the mere giving of the caution card to the accused was not sufficient on its own to inform the accused of his rights. Counsel on both sides were also in agreement that what was done was not sufficient to inform the accused of his rights. I should also point out in relation to the constitutional right to counsel that Article 6(3) of the Constitution requires that a suspect under arrest shall be informed of that right promptly.

Conclusion

Both caution statements by the accused were not voluntary and are therefore not admissible. They are therefore excluded.

CHIEF JUSTICE

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