Police v Faamanu [2008] WSSC 95 (12 November 2008)

IN THE SUPEME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

LUPEMATASILA FAAMANU, MISA GAGA’E,
LUPEMATASILA SAIPANI, NANAI SIAKI, NANAI LOPA,
NANAI VE’A, and FILIPO FAASAVALU TINO
all of Falelatai.
Accused

Counsel: P Chang and K Koria for prosecution
L T Malifa for accused

Ruling: 12 November 2008

RULING OF SAPOLU CJ

The proceedings

[1] The six accused in this matter appear on the charge of arson as well as other charges which are all triable within the jurisdiction of the District Court.

[2] Because both Judges of the District Court have disqualified themselves on the ground of conflict of interest, this matter has been transferred for hearing to this Court.

[3] On the fourth day of hearing, when counsel for the accused was cross-examining the witness police sergeant Niko Vili, the seventeenth witness called by the prosecution, it appeared to me from the questions asked by counsel for the accused that he was in effect challenging the admissibility of the caution statement made by the accused Lupematasila Faamanu Ivara (hereinafter referred to as"Lupematasila"). I, therefore, asked counsel for the accused whether he was challenging the admissibility of that caution statement. He replied "I’m heading towards that way".

[4] When counsel for the accused was told that the matter should have been dealt with on the basis of a voir dire, his response was that as this is not an assessor trial the normal practice is that the admissibility of a caution statement is dealt with "as part of the case". This is not correct as that is not the normal practice of this Court in criminal trials without assessors as is the trial of this case.

[5] The practice and procedure of this Court is that where the admissibility of the caution statement made by an accused to the police is challenged in a criminal trial, whether with or without assessors, the issue of admissibility is determined on the basis of a voir dire. Another practice which has grown up is that if defence counsel intends to challenge the admissibility of the accused’s statement to the police, the prosecution is informed in advance of the challenge and the ground of the challenge. In that way, a voir dire will be held at the beginning of the trial to determine the admissibility of the accused’s statement.

[6] The advantages of that procedure is that the outcome of the voir dire may, in some cases, determine whether the prosecution should continue with a charge or whether the accused should continue to maintain a not guilty plea. So it can be a time and cost saving procedure. Secondly, this procedure can avoid too much interruption with the flow of a criminal trial, particularly if the trial is with assessors.

[7] In this case the usual procedure was not followed, even up to the time counsel for the accused cross-examined sergeant Niko Vili who interviewed and obtained a caution statement from the accused Lupematasila. It was when I asked counsel for the accused during his cross-examination of sergeant Niko Vili whether he was challenging the admissibility of Lupematasila’s caution statement that it became clear that that was what was being done. As a result, the prosecution was caught somewhat by surprise.

[8] I then stopped the cross-examination by counsel for the accused of the police sergeant and declared a voir dire for the purpose of determining the admissibility of the caution statement of the accused Lupematasila. I also asked counsel for the accused about the ground of his challenge and he said breach of the accused’s right to counsel under Article 6(3) of the Constitution.

[9] As the prosecution had completed its examination in chief of sergeant Niko Vili before it became clear during cross-examination that defence counsel was challenging the admissibility of Lupematasila’s caution statement, I asked counsel for the prosecution whether they had any other questions to ask the police sergeant in light of the challenge to the admissibility of the caution statement. When counsel for the prosecution replied yes, I deferred the cross-examination and allowed counsel for the prosecution to ask further questions in relation to the issue of admissibility of the caution statement. After further questions from counsel for the prosecution, I allowed defence counsel to continue with his cross-examination of the police sergeant.

[10] It also become clear in the course of the trial that defence counsel would be challenging the admissibility of the caution statement made by the accused Nanai Ve’a (hereinafter referred to as "Nanai") to the police. This challenge was also based on the same ground of alleged breach of the right to counsel under Article 6(3) of the Constitution. I directed that that challenge should also be dealt with on the basis of a voir dire.

[11] At the conclusion of the voir dires on 28 August 2008, I gave my ruling that there was no breach of the right to counsel under Article 6(3) of the Constitution to make the caution statements by the accused Lupematasila and Nanai inadmissible. Accordingly, the two statements were held to be admissible.

[12] Defence counsel then asked for a written ruling. This is that ruling. The trial is still part heard and is now scheduled to resume on 18 November 2008 after two adjournments on applications by defence counsel.

Evidence relating to caution statement by accused Lupematasila

[13] The police received information that the accused Lupematasila was involved in the arson alleged to have occurred to the house of Anae Taeoalii at Falelatai on Friday night, 15 July 2005. So on Tuesday, 19 July 2005, the police were out looking for Lupematasila. They received information that Lupematasila was leaving for New Zealand that night. The police on duty at the Faleolo Airport that night were then alerted to keep an eye out for Lupematasila.

[14] At about midnight on Tuesday 19 July 2005, while Lupematasila was standing in the queue of passengers at the departure terminal of Faleolo Airport, corporal Sione Melefata approached him and informed him that he was wanted by the police. Later on the same right, Lupematasila was brought in a police vehicle from the airport to the Apia police station. Given the distance between Faleolo Airport and the Apia police station Lupematasila must have arrived at the police satiation close to 1am in the early morning. He was then kept in custody in a cell at the police watch house until daytime.

[15] At 10am in the morning, Wednesday 20 July 2005, sergeant Niko Vili started interviewing Lupematasila at the police CID in Apia. According to the evidence in chief of sergeant Vili, before he started interviewing Lupematasila, he informed him of his rights. These were the right not to say anything unless he wishes to do so but anything he says will be taken down in writing and may be given in evidence, the right to contact a lawyer to be present at the time of the interview, and the right to engage counsel to appear for him in Court. Sergeant Vili also gave the caution card which contains those rights to Lupematasila before the commencement of the interview to read and he read it. When the police sergeant then asked Lupematasila whether he understands the rights in the caution card Lupematasila said he understands them well. (malamalama lelei)

[16] However, Lupematasila did not want to contact a lawyer to be present at the time of the interview. According to sergeant Vili’s evidence in chief, Lupematasila appeared a happy man as if there was something he wanted to tell the police. He wanted to make a statement. He then made a statement and admitted the allegation of arson against him. That statement was taken down in writing by sergeant Vili. After the statement was taken down, it was given to Lupematasila to read and after he read it, he signed it.

[17] In cross-examination, sergeant Vili maintained unchanged his evidence that before the commencement of the interview he explained to Lupematasila his rights including his right to contact a lawyer at that time to be present at the interview. He also said in cross-examination he gave Lupematasila the caution card which includes his rights to read before the commencement of the interview and Lupematasila read the card. When the police sergeant then asked Lupematasila whether he understands the caution card, he replied yes that he understands it well. However, Lupematasila did not want to contact a lawyer at that time. He wanted to give a statement to the police sergeant.

[18] Constable Laloata Timo who was also present at the interview of Lupematasila by sergeant Vili was also called as a witness by the prosecution. His evidence was confirmatory of the evidence given by sergeant Vili.

[19] Lupematasila was called by defence counsel to give evidence. He testified that he was brought by the police from Faleolo Airport to the Apia police station on Tuesday night 19 July 2005. They arrived at the Apia police station at about 1am. He was then informed by the police of the charges against him, namely, arson, obstructing the police in the execution of their duties, uttering insulting words at the police, and throwing stones. He was then kept in a cell at the police watch house.

[20] After 7am in the morning, Lupematasila was brought out by the police from the cell. He said he could not sleep that night. At 10am he was face to face with sergeant Vili.

[21] It is clear from the evidence of Lupematasila that he was orally informed of his rights by sergeant Vili. He repeatedly said during the course of his evidence that he was advised he had a right to contact a lawyer for assistance. When he was asked by the Court whether he had heard any police officer saying he had a right to contact a lawyer to be present at the time of his interview, he replied the first time he heard of that right was when he was interviewed by sergeant Vili.

[22] Lupematasila also said in evidence that he was given a green card about the size of an ID card by sergeant Vili before the commencement of the interview to read. When the police sergeant then asked him whether he understands the caution card he replied yes he understands.

[23] However, Lupematasila also said that he could remember that the wording in the card given to him was that he has a right to contact a lawyer for assistance. He also said that his mind was ‘out’ and not normal at that time as that was the first time he had been in such a situation and he wanted to get out of it.

[24] Even though Lupematasila said that the card produced by sergeant Vili in these proceedings looks different from the card shown to him at the time of the interview, the caution card that is often produced by the police to this Court in criminal trials is green in colour and about the size of an ID card.

[25] Lupematasila further said that sergeant Vili did not say to him that he can go to see a lawyer or to go and contact a lawyer by phone or is permitted to contact a lawyer. If the police sergeant had said to him that he is permitted (faataga) to go and ask a lawyer to come to the interview, he would have done that.

[26] When Lupematasila was asked by counsel for the prosecution during cross-examination whether he told sergeant Vili that he wanted to contact a lawyer he replied he did not. When he was further asked whether he told sergeant Vili that he did not understand his right to contact a lawyer, he replied he could not remember.

[27] I must say that I have no hesitation in accepting the evidence given by sergeant Vili as confirmed by constable Laloata Timo. I accept that before the commencement of the interview, sergeant Vili did inform Lupematasila of his rights including the right to contact a lawyer to be present at the time of the interview but Lupematasila did not want to exercise that right. I also accept the evidence of sergeant Vili that before the commencement of the interview he gave Lupematasila to read the caution card which includes the right of a suspect to contact a lawyer to be present at the time of his interview and Lupematasila did read the caution card. When Lupematasila was asked by sergeant Vili whether he understands the caution card he replied yes he understands it.

[28] I also accept the evidence of sergeant Vili that when he first met with Lupematasila at 10am on Wednesday 20 July 2005, the latter appeared happy as if there was something he wanted to tell the police. In fact Lupematasila did not deny this part of the evidence given by the police sergeant.

[29] Mr Koria for the prosecution also cross-examined extensively on the contents of the first page of the caution statement which Lupematasila gave to sergeant Vili. It is stated in the first page of the caution statement that sergeant Vili told Lupematasila about his rights. That was before any questioning began. Sergeant Vili is stated to have told Lupematasila that he has a right to contact a lawyer to be present at the interview. It is also stated in the first page of the caution statement that when Lupematasila was asked whether he understands that right, he replied yes he understands it well. When he was further asked whether he wanted to contact a lawyer to be present at the interview, he replied no thank you, some other time. That same page of the statement is initialled by Lupematasila. Lupematasila also signed the third page which is the last page of the statement where it says he has read the statement and it is correct.

[30] I have to say that Lupematasila’s evidence in relation to what is contained in the first page of his caution statement was unclear, uncertain and lacking in conviction. What is clear and certain is that sergeant Vili did give the caution statement to him to read and then sign.

[31] There was also no definitive denial by Lupematasila of what is said in the first page of the caution statement that sergeant Vili did tell him that he has a right to contact a lawyer to be present at the time of interview and he replied no thank you, some other time.

[32] It is also clear from Lupematasila’s answers during cross-examination that he did not tell sergeant Vili that he wanted to contact a lawyer to be present at the interview. As to whether he told sergeant Vili that he did not understand his right to contact a lawyer to be present at the interview, he said he could not remember.

[33] As for Lupematasila’s evidence that if the police sergeant had said to him that he is "permitted" or "allowed" to go and contact a lawyer to come to the interview he would have done that, I am of the clear view that there is no real difference in meaning between those words and what the police sergeant said to Lupematasila that he has a right to contact a lawyer to be present at the interview and whether he wants to contact a lawyer. To tell a person he has a right to contact a lawyer and then ask him whether he wants to contact a lawyer is substantially the same in meaning as telling a person he is "permitted" or "allowed" to contact a lawyer. Furthermore, it may be thought by some people that to tell a person "he has a right" to contact a lawyer carries more weight than to tell a person he is "permitted" or "allowed" to contact a lawyer.

Evidence relating to caution statement by accused Nanai

[34] On Tuesday evening 19 July 2005, three police officers went in a police vehicle to look for the accused Nanai at Toamua. They found Nanai at the house of his family at Toamua. It was starting to get dark at the time.

[35] According to the evidence of corporal Koroseta Uati, one of the three police officers who went to look for Nanai at Toamua, when the police found Nanai at Toamua, they had a talk with him in his house. At that time sergeant Reupena Faailo who was leading the police party informed Nanai of his rights including the right to contact a lawyer to be present at the time of the police interview.

[36] Constable Laloata Timo testified that when the police brought Nanai from Toamua, sergeant Faailo informed Nanai of his rights.

[37] When the police and Nanai arrived at the Apia police station, Nanai was kept in a cell at the police watch house. At about 9:45am the following morning, Wednesday 20 July 2005, Nanai was interviewed by corporal Sione Melefata at the watch house.

[38] According to the evidence of corporal Sione Melefata, before he asked Nanai any questions he first informed Nanai about the matter for which he was wanted by the police. He then informed Nanai of his rights including his right to have a lawyer present at the time of the interview. He also asked Nanai whether he understands his right to contact a lawyer to be present at the time of the interview and Nanai replied yes. However, Nanai did not want to have a lawyer present at the time of the interview.

[39] Corporal Sione Melefata also said in evidence that he gave the caution card which contains the rights of a suspect to Nanai to read and Nanai read it. The corporal also explained the caution card to Nanai.

[40] In the first two pages of the written statement which Nanai gave to corporal Melefata, it is there shown that Nanai was informed of the allegation against him and of his rights. One of these rights is the right to contact a lawyer to be present at the time of the interview. Nanai was also asked whether he understands that right. He replied that he understands but he does not want a lawyer at that time. All the pages of the statement were signed by Nanai. In the last page, Nanai wrote that the statement has been read to him by the police officer and it is correct.

[41] Nanai was called by defence counsel to give evidence. He denied that the police informed him of his rights at Toamua. He said that the police came to him at Toamua when it was approaching 7pm in the evening. When he arrived with the police at the Apia police station it was close to 8pm and it was dark. He was then taken into a cell at the watch house with another accused in this matter named Filipo.

[42] About 8am the next morning, Wednesday 20 July 2005, Nanai was face to face with a police officer. This must have been corporal Melefata who interviewed this accused.

[43] Even though it took Nanai some time to say it during his examination in chief, it is clear from his answers to the questions from defence counsel that he was informed by corporal Melefata of his right to contact a lawyer to be present at the time of the interview before any prejudicial questioning by the police officer began. Nanai also said that he replied to the police officer "some other time or day" (e iai se taimi poo se aso).

[44] I must say that I have no difficulty in accepting the evidence of corporal Melefata which was much more convincing and confidence inspiring than the evidence of Nanai. Nanai obviously took some time after several questions from defence counsel before saying that he was informed of his rights by the police officer as the police officer was trying to obtain a statement from him. So Nanai did admit during examination in chief that corporal Melefata informed him of his rights. According to the corporal that was done before any prejudicial questioning began.

Submissions by counsel for Lupematasila and Nanai

[45] The submissions by defence counsel were presented orally. They were directed at the caution statement given by the accused Lupematasila to sergeant Vili. There was no mention of the accused Nanai or the caution statement given by him to corporal Melefata.

[46] As I understand the submissions by defence counsel, what he was saying was that the accused Lupematasila was not informed of his right to counsel under Article 6(3) of the Constitution at the time of the police interview before sergeant Vili obtained the caution statement from him. The point made by defence counsel is that the police sergeant misinformed the accused Lupematasila about his right under Article 6(3) because the Samoan translation of Article 6(3) uses the word "faataga" but that word was not used by the police sergeant when he informed Lupematasila of his Article 6(3) right. As a consequence, Lupematasila was not properly informed and he misunderstood his right.

[47] I have to say there is no substance in this point. The word "faataga" means in English "permit" or "allow". What defence counsel was saying, and this was also what Lupematasila said in his evidence, was that the police sergeant should have told Lupematasila that he was "permitted" or "allowed" to go and contact a lawyer. If the police sergeant had said that to Lupematasila, he would have gone to contact a lawyer.

[48] What sergeant Vili had said to Lupematasila was that he has a right to contact a lawyer to be present at the time of the interview. He then asked Lupematasila whether he wants to contact a lawyer. Lupematasila replied he does not want a lawyer. Sergeant Vili also asked Lupematasila whether he understands his right and Lupematasila replied he understands it well.

[49] In substance there is no real difference between saying to the accused that he is "permitted" or "allowed" to contact a lawyer to be present at the time of the interview, and what the police sergeant actually said to the accused that he has a right to contact a lawyer to be present at the time of the interview and then asked the accused whether he wants to contact a lawyer. To tell the accused that he has a right to contact a lawyer and then to ask him whether he wants a lawyer is substantially the same in meaning as to tell the accused that he is "permitted" or "allowed" to contact a lawyer. Even though the words used are not the same, the meaning conveyed is the same. And Lupematasila did not want a lawyer.

[50] The other point which was emphasised in the submissions by defence counsel is that sergeant Vili was mistaken in his evidence when he said that the right to counsel in the caution card was from the "Malo". In English, "Malo" means "the Government". Defence counsel repeatedly emphasised that the right in question is from the Constitution.

[51] Strictly speaking, the point is not material. But as it was emphasised in counsel’s submissions, I will refer to how it arose in these proceedings. Defence counsel was cross-examining sergeant Vili about the caution card containing a suspect’s rights which the police officer showed to the accused Lupematasila during the interview.

[52] At pages 22 and 23 of the transcript of the evidence given on 27 August 2008, defence counsel during cross-examination was questioning sergeant Vili in relation to the caution card and the right in question contained in it. Defence counsel then asked the police sergeant where the words in the caution card were from. The police sergeant replied from the Office of the Attorney-General which is where the caution card was isued from. Defence counsel again asked about where the right in question is from and the sergeant again replied from the Office of the Attorney-General. Defence counsel then put to the police sergeant that the right was from the Constitution and the sergeant replied "very correct" (sa’o lelei). Defence counsel again put to the sergeant that the right in question is from the Constitution and again the sergeant replied "very correct" (ia sa’o lelei). So there was really no dispute between defence counsel and the sergeant as to where the right is from. What the sergeant was saying about the Office of the Attorney-General is that that is where the caution card was issued from and given to the police.

[53] Perhaps what defence counsel had in mind was the evidence of constable Laloata Timo who was also present at the interview of the accused Lupematasila. At pages 48 and 49 of the transcript of the evidence given on 27 August 2008, defence counsel during cross-examination asked constable Timo whether he is aware of where the authority comes from to make the caution card. The constable replied that all he knows is that the caution card was approved from the Malo (the Government) and given to the police. Perhaps the police officer was mixed up between the Office of the Attorney-General and the Government.

[54] Obviously, the right in question is provided under Article 6(3) of the Constitution. It is immaterial whether constable Timo said in evidence that the caution card was approved from "the Government". The fact of the matter is that the right in question is provided under Article 6(3) of the Constitution and that is what counts, not what the police constable said in his evidence.

[55] The other point mentioned by defence counsel in his submissions is that the accused Lupematasila was not allowed to exercise his right "without delay" as he was only informed about his right the following morning after he had been kept in the cell since he was brought from the airport about 1am the same morning.

[56] The other point raised by defence counsel in his submissions is that the accused Lupematasila was only asked whether he wanted to contact or consult a lawyer. He was not told that he has a right to contact or consult a lawyer "of his choice".

[57] Finally, defence counsel said in his submissions that the accused was weak at the time of the interview.

[58] Perhaps I should reiterate here that there was no mention of the accused Nanai in the submissions of defence counsel.

Relevant law

[59] Article 6(3) of the Constitution which provides the right to counsel states:

" 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".

[60] On the question of how the accused is to be informed of the right to counsel, Cooke P in delivering the judgment of the Court of Appeal in Attorney-General v Ueti [1994] WSCA 19 said:

" No particular words are required to be used by the police officer, as long as what is said brings home to the particular accused the substance of his right to legal advice without delay. It is necessary that the accused should understand his right. If the officer reasonably considered that what he said did result in an understanding of the right by the particular accused, the Court will ordinarily infer in the absence of evidence to the contrary that the accused did understand his right. See R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528; R v Mallinson (No.2) (1992) 9 CRNZ 691, [1990-1992] 3 NZBORR 149; R v Pulemoana (C.A.N.Z 402/93; judgment 11 November 1993); R v Walker and Hutchings (C.A.N.Z) 342 & 343/93; judgment 9 December 1993). The important point, made clear in these cases, is that the ultimate question is always subjective. It is whether, on all the evidence before the Judge was asked to rule on the issue, the particular accused understood that he had a right to a reasonable opportunity to obtain legal advice before any continuation of the interview".

[61] In R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707, Richardson J in delivering the judgement of the New Zealand Court of Appeal said at p.709:

" (3) To be ‘informed’ of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s.23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable; and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins".

[62] In relation to the answers given by the accused to the police officer, Richardson J in R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707 said at pp 709-710:

" (5) Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s.23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

" (6) The crucial question is whether it was brought home to the arrested person that he or she had those rights".

[63] On the question of whether the accused was allowed to consult a lawyer "without delay", again Richardson J in R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707 said at p.709:

" (2) The temporal expression ‘without delay’ is not synonymous with instantly or immediately. It is a negative injunction-not to delay-which in the absence of any further qualification necessarily imports as the test whether the delay is reasonable in all the circumstances having regard to the purpose of the right. The relevant interests which s.23(1)(b) protects are the ascertaining of one’s legal rights and obligations and representation by an independent adviser. If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised. That includes not prejudicing one’s legal position by words or conduct without the opportunity for legal advice".

[64] The advice given by Richardson J in R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707 must also be borne in mind before launching a challenge, based on the Article 6(3) right, to the admissibility of a police statement. His Honour said at p.710:

" (8) The Bill of Rights is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s.23(1)(b). And anyone complaining of a breach of the Bill of Rights must, as the Canadian Courts say, invest the complaint with an air of reality".

[65] I would also l like to refer to two recent decisions of the New Zealand Court of Appeal which applied the principles in R v Mallinson. The first is R v Twidle [2006] NZCA 339 where the Court of Appeal said:

" [9] The Court has settled the relevant principles: see R v Mallinson [1993] 1NZLR 528 per Richardson J at 531. In summary, the inquiry in a case of this type is whether or not the suspect’s constitutional rights were adequately brought home to him. His or her statutory entitlement is to be informed of the right to consult and instruct a lawyer without delay whenever he or she is arrested or detained under any enactment. An officer when advising a suspect of his or her s.23(1)(b) rights is not under a duty to go further and give advice designed to facilitate the exercise of that right. Any duty to facilitate the manner of the exercise of the right is not triggered unitl the suspect indicates a desire to consult a lawyer. Proof of advice of the right should lead to the inference that the suspect has understood it unless the circumstances call for obvious care and inquiry."

[66] In the second case of R v Fowler [2007] NZCA 1, the New Zealand Court of Appeal said:

" [11] This Court in R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 at 530 held that ‘without delay’ imported a test of whether the delay was ‘reasonable in all the circumstances having regard to the purpose of the right...If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised."

Discussion

[67] On the evidence which I accept in relation to the accused Lupematasila, it is clear and plain that sergeant Vili who interviewed Lupematasila informed Lupematasila of his right to contact a lawyer to be present at the time of the interview before any questioning began. However, Lupematasila did not want to contact a lawyer. Sergeant Vili also gave the caution card which contains the right to contact a lawyer to be present at the time of the interview to Lupematasila to read before any questioning began and Lupematasila did read the caution card. Even though Lupematasila said in evidence that he could not remember whether he told the police sergeant that he did not understand his right, sergeant Vili was quite firm in his evidence that he asked Lupematasila whether he understands his right and Lupematasila replied he understands it well (malamalama lelei). Constable Laloata Timo who was also present at the time of the interview gave evidence which confirms what sergeant Vili said.

[68] I therefore, conclude that Lupematasila was informed of his right by being made aware of it before any questioning by the police officer began. In other words, the accused was informed of his right before his legitimate interests were jeopardised.

[69] The words used by the police sergeant to convey the right to the accused and the words used in the caution card adequately brought home to the accused his right to contact a lawyer to be present at the interview. Even though the accused said that if the sergeant had said to him that he is "permitted" or "allowed" (faataga) to go and ask a lawyer to come to his interview he would have done that, there is no real difference between those words and what the sergeant actually said. As earlier mentioned, the sergeant said to the accused he has a right to contact a lawyer to be present at the interview. The sergeant also gave the accused the caution card to read and he read it. When the sergeant then asked the accused whether he understands his right, the accused replied he understands it well. When the sergeant further asked whether he wants to contact a lawyer, the accused said he does not want a lawyer. So in effect what the sergeant said and did was to permit and allow the accused to contact a lawyer to be present at the interview if he wanted to. But the accused did not want a lawyer.

[70] As it was said by Cooke P in a passage already cited from Attorney General v Ueti [1994] WSCA 19.

" No particular words are required to be used by the police officer, as long as what is said brings home to the particular accused the substance of his right to legal advice without delay".

[71] In a passage already cited from R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707, Richardson J said at p. 709:

" (3) To be ‘informed’ of the right to a lawyer is to be made aware of it... The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s.23(1)(b) may save argument later".

[72] Perhaps the prosecution should take into consideration the words of Richardson J in R v Mallinson in order to save argument and time. These are the words: "To use the language of s.23(1)(b) may save argument later."

[73] The other point made by defence counsel in his submissions is that the accused Lupematasila was not allowed to exercise his right "without delay" because he was only informed of his right at 10am in the morning after he was kept in a police cell since 1am. As earlier mentioned, the accused was brought by the police from Faleolo Airport about midnight. When the police and the accused arrived at the Apia police station it was about 1am. The accused was then charged and kept in a cell at the police watch house. After 7am the same morning, the accused was brought out of the cell. The interview with sergeant Vili commenced at 10am.

[74] As Richardson J said in a passage already cited from R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707 at 709:

" (2) The temporal expression ‘without delay’ is not synonymous with instantly or immediately. It is a negative injunction – not to delay – which in the absence of any further qualification necessarily imports as the test whether the delay is reasonable in all the circumstances having regard to the purpose of the right".

[75] Applying that passage to the circumstances of this case, just because the police did not inform the accused about his right to counsel under Article 6(3) of the Constitution when they brought him from Falelo Airport at about midnight and then kept him in a cell when they arrived in Apia about 1am does not constitute a breach of the "without delay" requirement.

[76] "Without delay" is not the same as "instantly" or "immediately": R v Mallinson per Richardson J at p.709. The test for determining whether the delay is reasonable or not is by having regard to all the circumstances and to the purpose of the right. In this case, when the accused was brought from the airport at midnight and kept in a police cell at 1am, the offices of all the lawyers in Apia would be closed. One would also expect, given the lateness of the hour, that many lawyers would be asleep at that time. It was reasonable for the police to wait until daytime before informing the accused of his right. I do not accept what the accused said that he has lawyer friends whom he could have contacted at that late hour of the night if the police had then informed him of this right. One has to be realistic about these matters. In any event, what the accused said about contacting his lawyer friends at 1am if he had been informed of this right then, is inconsistent with what happened nine hours later when at 10am the same morning he was asked by sergeant Vili whether he wants a lawyer to be present at the interview and he replied he does not want a lawyer. It is incredible that the accused would have contacted a lawyer at 1am when nine hours later at 10am, he did not want to contact a lawyer when he was asked by the sergeant whether he wants to contact a lawyer.

[77] In the circumstances that occurred, I conclude that any delay in informing the accused of his Article 6(3) right was reasonable and therefore did not infringe the "without delay" requirement of the right.

[78] The other point raised by defence counsel in his submissions is that the police sergeant did not tell the accused that he has a right to contact or consult a lawyer "of his choice". The sergeant only told the accused that he has a right to contact a lawyer without using the words "of his own choice". The actual words used in Article 6(3) are "of his own choice".

[79] I find no substance in this point. No particular words or particular formula Is required to be used by the police officer, as long as what is said brings home to the accused the substance of his right to legal advice without delay: Attorney-General v Ueti [1994] WSCA 19 per Cooke P; R v Mallinson [1992] NZCA 163; (1992) 8 CRNZ 707 per Richardson J at p.709.

[80] It is also to be noted that the police sergeant did not mention or suggest any particular lawyer to the accused. The sergeant simply asked whether "he wants a lawyer". The matter was left open. The more realistic interpretation of what the police sergeant said is that it was up to the accused to contact a lawyer of his choice if he wants to contact a lawyer. At least the police sergeant did not suggest any particular lawyer to the accused. And in any event, the accused did not want a lawyer to be present at the interview.

[81] The final point made by defence counsel is that the accused was weak at the time of the interview as he had not been able to sleep at the time he was kept in the cell. The accused also said that his mind was not normal and it was ‘out’ at the time of the interview as this was the first time he had been in this type of situation and he wanted to get out of it.

[82] However, it is clear from the evidence that the accused never told the police sergeant that he was weak or that his mind was not normal or was out. According to sergeant Vili, when he met with the accused at the police CID, the accused appeared happy as if there was something he wanted to tell the police. The police sergeant also said that the accused wanted to make a statement. The accused in his evidence never denied these parts of the evidence given by the police sergeant. He only said his mind was not normal and it was ‘out’ and he was weak, but he did not tell the sergeant about it. The police sergeant who gave evidence before the accused was also not questioned during cross-examination whether the accused appeared to be weak and someone whose mind was not normal at the time of the interview. Reading through the caution statement which the accused gave to the sergeant at the interview, it is not possible to see that it was a statement made be a person whose mind was ‘out’ or not normal at the time the statement was given.

[83] The accused from his own evidence, is an intelligent man. He operates a consultancy to which members of the public go for advice. The accused’s demeanour in the witness stand further shows that he is an intelligent and well educated man.

[84] In the circumstances, I do not accept the accused’s evidence and what it implies that the interview was unfair as he was weak and his mind was ‘out’ and not normal. In fact I was not impressed with the demeanour of the accused in the witness stand during the voir dire.

[85] In relation to the accused Nanai, he was informed by corporal Melefala of his right to contact a lawyer to be present at the time of the interview. According to the evidence of the corporal, Nanai did not want to have a lawyer at the time of the interview or at a later time. This was before any prejudicial questions were put by the police officer to Nanai.

[86] Nanai in his evidence in chief, after several questions were put to him by defence counsel, said he replied to the police officer "some other time or day". So Nanai was informed of his right to contact a lawyer to be present at the time of the interview but he did not want to contact a lawyer then. According to his evidence, he said "some other time or day". That was before any prejudicial questioning began.

[87] There was no question whether Nanai was weak or his mind was not normal at the time of the interview.

[88] I am also satisfied that there was no breach of the "without delay" requirement. Howeer, if there was any breach, it was inconsequential.

[89] The evidence shows that at about 7pm in the evening of Tuesday 19 July 2005, the police found Nanai at his house at Toamua. At about 8pm the same evening, the police arrived with Nanai at Apia police station. Nanai was then charged and kept in a cell at the police watch house. There is, however, dispute whether the police informed Nanai at Toamua or whilst he was brought to the Apia police station of his rights. However, that dispute is not material for present purposes.

[90] At about 9:45am the following morning, Wednesday 20 July 2005, Nanai was informed of his rights by corporal Melefata before any prejudicial questioning began. In the circumstances, I am of the view that there was no breach of the "without delay" requirement of the right under Article 6(3). But if there was any breach of the "without delay" requirement, it was inconsequential and therefore insufficient to render the caution statement given by Nanai to the police inadmissible in evidence.

[91] In Attorney-General v Ueti [1994] WSCA 19, Cooke P when delivering the judgment 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"

[92] Two of the reasons recognised by the New Zealand Courts which makes it fair and right to admit a confessional statement notwithstanding a breach of the Bill of Rights are inconsequentiality and triviality of the breach: see R v Goodwin [1993] 2 NZLR 153 per Cooke P at p.171; R v Te Kira (1993) 9 CRNZ 649 per Cooke P at p.654, Richardson J at p. 666. Both these New Zealand cases were referred to in Police v Masame [2007] WSSC 66.

[93] Furthermore, even if the police officer did not use the words "of his own choice" when he informed the accused Nanai of his right to contact a lawyer to be present at the time of the interview, that is not fatal. The words used by the police officer clearly left to the accused the option of contacting any lawyer if he wanted a lawyer. The police officer did not mention or suggest to the accused any particular lawyer. If, however, there was any breach of the words "of his own choice", then such breach would be inconsequential or trivial, if not both.

Conclusion

[94] For all the foregoing reasons, I rule that the caution statements made by the accused Lupematasila and Nanai to the police did not breach the Article 6(3) right. However, if there was any breach of the right, such breach would be inconsequential or trivial or both. The caution statements are therefore admissible. The challenge to their admissibility is dismissed.

CHIEF JUSTICE

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