Police v Nauer [2008] WSSC 111 (4 September 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

ALOSIO NAUER male of Tanugamanono
Defendant

Counsels: Mr G. Patu and Mr L. Petaia for the prosecution
Mr L.T. Malifa for the defendant

Hearing: 3 September 2008

Ruling: 4 September 2008

RULING OF NELSON J. (on a voir dire)

The accused has challenged the admissibility of a statement allegedly given to the police at 9.25am the morning of 4 March 2006, the morning the defendant was arrested. The challenge rests on the basis that the defendant was not properly advised of his rights under Article 6(3) of the Constitution as required by section 9(1) of the Criminal Procedure Act 1972. Article 6(3) 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."

And section 9(1) relevantly provides:

"It is the duty of every one arresting any other person to comply with the provisions of clause (3) of Article 6 of the Constitution relating to promptly informing the person arrested of the grounds of his arrest, and of any charge against him, and allowing him to consult a legal practitioner of his own choice without delay."

The argument here is firstly that no caution or right to counsel was advised or administered to the defendant by the interviewing police officer. And secondly as I understand counsel for the defendant that even if his right to counsel was so administered the language used was such that it did not achieve its objective given that it did not use the words used in the Samoan version of article 6(3) of the Constitution. The argument seems to be that those words and no other are required to be used by the police in advising the defendant of his constitutional right to consult counsel without delay.

Before considering that legal argument the relevant facts of the matter because they are in conflict need to be considered and resolved. Three witnesses were called on the voir dire, firstly Detective Inspector Fereti who interviewed the defendant, secondly the defendant himself and thirdly one Lupematasila Ivara a witness for the defendant.

The evidence of the Detective Inspector was that he was in charge of a search party that pursuant to a warrant searched premises of a relative of the defendant at Tanugamanono. This search was undertaken at about 6am on the 4 March 2006. The defendant was found on those premises with a quantity of what appeared to be illegal substances and he was placed under what counsel for the defendant called de facto arrest and brought down to the police station sometime after 8am. The inspectors evidence was he was not placed in any holding cells but taken to the CID office where at 9.25am he was interviewed. The interview was recorded by a female constable Detective Monalisa Tia’i and the record of the interview has been produced as Exhibit "P-3" for the prosecution subject to the courts ruling on its admissibility. The inspector said the defendant was properly advised as to his rights as recorded in Exhibit "P-3" and the document was signed by the defendant on every page without objection. The whole tenor of the Inspectors evidence is the statement was voluntarily given to the police. He disputed any evidence that the defendant had first been placed in the police cells before making the statement or that the words in respect of the caution and constitutional rights of the defendant did not comply with the requirements of article 6(3).

The defendants evidence is very different. He says he was very drunk and was rudely awoken by the searching officers early that morning. He was taken to the station less than an hour or so later and was placed in a police cell which was dirty, smelly, cold and unsanitary. He was locked in there with ten other people. The cell is about half the size of this courtroom and was very overcrowded with no air and no ventilation. He was then taken and interviewed by the Inspector. He said he was still drunk and he asked the police officer for time to consider a statement but the police officer kept questioning him. He said he was only asked his name and questions about the substances that had been seized from the searched premises and his only reply was to ask for more time because he was too drunk. He said no caution was given or if one was given he was too drunk to understand it. Similarly there was no advice of his right to counsel or if there was, he was too drunk to understand it. He was eventually returned to the police holding cells and later that day taken to Tafaigata Prison.

The witness for the defendant testified as to the unsanitary conditions of the police cells from a personal experience of his inside one on 19 July 2005. That however was not helpful evidence because this was some eight months before the date the defendant was alleged to have been locked up in the police cells.

The issue then comes down to the defendants evidence as against the police officers. On this matter I have no hesitation in accepting the police officers evidence as the more truthful of the two. The defendants demeanor was unimpressive and his protestations of being too drunk to be able to understand anything is contrary to his evidence. His evidence was that he knew the time of arrival at the CID office, it was after 6am because he observed it on the CID office clock. It was also his evidence that he knew exactly the number of people that were locked up with him in the police cell. I also note that he signed the cautioned statement on every page even though he said in cross examination that he cannot read. In my experience someone who cannot read but who can legibly sign their signature is a most rare creature if existant at all. I also note much of the defendants evidence was not put to the investigating officer during cross examination as it should have been but this while important is not critical as the whole tenor of the inspectors evidence is proper procedures were followed and the defendant was never held in the cells prior to being interviewed. The cautioned statement itself is also quite lengthy, it spans some six pages and contains numerous details such as names of people. It is difficult to accept that this was all made up by the interviewing officer.

In that background then I find that the caution and advice as to the defendants right to counsel was properly given and administered and that evidence as to the condition of the cells and whether that can affect the voluntariness of the statement is not relevant as I do not believe the defendant.

But I now turn to consider counsels argument that the advice of a constitutional right to counsel even if administered was inadequate because the Samoan words used in article 6(3) were not used by the police and indeed are not normally used by the Police. The difficulty inter alia with that argument is article 112 of the Constitution which provides in relation to the Samoan and English texts that in case of a difference the English text shall prevail. Article 112 provides:

"Authoritative texts – The Samoan and English texts of this Constitution are equally authoritative but, in case of difference, the English text shall prevail."

That seems to suggest that the authoritative text of the Constitution is the English text not the Samoan text even though the article itself says both are equally authoritative. As this point was not covered by counsels submission I only make the preliminary observation at this stage that even applying Lord Wilberforce’s generous liberal interpretation to a Constitution approach accepted by our Court of Appeal in Attorney General v Saipaia Olomalu & others [1980 – 1993] WSLR 41 it is difficult to construe the article in any other way other than that it means the English text in case of question prevails. This point may well need to be revisited in counsels final submissions because for reasons which will become obvious below I am not going to make a decision on the admissibility of the statement today.

The words of article 6(3) in the English text are in my view plain and clear. The essential elements seem to be firstly the arrest, secondly informing a person of the grounds of arrest, thirdly informing a person of any charge against him, fourthly the requirement that such informing must be done promptly and finally that he must be allowed to consult a lawyer of his own choice without delay.

In relation to the facts of this case I will require these issues to be addressed by counsel. Firstly at what time was the defendant "arrested" for the purposes of article 6(3), secondly was he informed at all of the grounds of his arrest and of any charge against him and thirdly and finally was he so informed promptly. In relation to his being allowed to consult a legal practitioner of his own choice without delay I note the evidence of the Inspector as accepted by the court that he was advised of his right to counsel but he elected not to exercise it. I will require counsel to make further submissions on those particular questions as part of their closing submissions in this matter and I defer a ruling on the admissibility of the cautioned statement until then.

The only other relevant matter I would add for counsels information is that I agree with the Chief Justices view expressed in the Runi Masame judgment of 21 August 2007 as to the effect of a constitutional rights breach namely that this court is bound by the Court of Appeal decision in the Semi Tupai case and must apply the prima facie exclusion rule until the Appeal Court decides otherwise.

JUSTICE NELSON