Police v Mataituli [2011] WSSC 154 (20 October 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LUI MATAITULI male of Falefa.
Defendant

Counsels: Ms P Chang for prosecution
Mr S Leung Wai for defendant

Hearing: 20 October 2011
Ruling: 20 October 2011

ORAL RULING OF NELSON J
(Admissibility of statement)

The prosecution initially sought to tender into evidence a statement made under caution by the accused to the police on 01 May 2011 the day after the shooting in this matter and the day the deceased passed away. No objection was rendered by defence counsel to this course of action. However, it became clear to the court after reviewing the document that the cautioned statement was inadmissible for two reasons: firstly it had been taken in breach of the accuseds constitutional right to silence. In this regard refer to the third page of the statement where it records the following questions and answers: Question from the investigating officer –

"Do you understand this right that I have just explained to you? Ua e malamalama i le aia tatau lea e pei ona ou faamalamalamaina atu?

Answer: ia

Question: do you wish to exercise this right? E te mana'o e faatino lau aia tatau lea?

Answer: ia faatino."

This means that the accused elected to invoke his right to silence and not to say anything to the police concerning the matter. A right guaranteed to him by the Constitution of this country.

Secondly a review of the cautioned statement also showed that it was a purely exculpatory statement in that it contained no relevant incriminating admission of the accuseds guilt to the charge of murder. There has been no dispute by the defence that he was in possession of the weapon used in this matter. The assertion being that he fired the weapon into the air and not at the deceased or to the vicinity of the deceased. The cautioned statement affirms this and contains no admission that he either aimed the weapon at the deceased or aimed it in the general direction of the deceased or aimed or fired the weapon at any one else and by mistake for example hit the deceased. It is therefore not even a mixed bag cautioned statement in that some part of it contains exculpatory material and some part of it contains inculpatory material.

The law is clear. Exculpatory statements are not confessions and are therefore not admissible as an exception to the hearsay rule. They constitute self serving evidence provided by an accused which the law has long regarded as inadmissible in the same way that an accused cannot call witnesses in his defence to testify that he told them post the incident that he was innocent or that he did not commit the crime.

There was a further issue that was raised by the cautioned statement that obviously has not been considered by counsel. It arises out of the accused telling the police in answer to a question whether he had previous convictions that he only had one in respect of a traffic matter. That question and answer in my view has the effect of putting the accuseds character into issue and if the cautioned statement were admitted the result may be to place character into issue. I indicated these views to counsel when admission of the statement was first addressed. At which point the prosecution presumably because they agreed advised that they will not seek to tender the statement.

Strictly speaking therefore there is no application before the court by the prosecution to tender the statement and that should be the end of the matter. However in fairness to counsel for the defence I agreed to revisit the issue and hear his arguments on admissibility if he had any. He has now produced these arguments and essentially they are two fold. Firstly he relies on paragraph 9.44 of Cross on Evidence New Zealand Edition (both the 6th and 7th editions have the same paragraph) as establishing that exculpatory statements are to be treated in the same manner as mixed inculpatory and exculpatory statements. Counsel referred in his written submissions to R v Tomkings [1981] NZCA 100; [1981] 2 NZLR 170 as authority for this proposition.

With respect counsel has misread paragraph 9.44. The opening words of which are clear enough and I quote:

"Where an accused makes a statement which is tendered as an admission and which is mixed in the sense that it contains statements favourable to his or her interest as well as adverse the whole statement is admissible and the trier of fact is entitled to rely on the whole or parts of it depending on what is convincing. That branch of the law is satisfactory. The accused is not entitled to tender his or her prior self serving statements. That too is satisfactory." (emphasis mine).

And the passage relied on by the defence goes to say:

"There is ultimately no sensible distinction between an exculpatory element and a wholly exculpatory statement. But this issue is unlikely to arise in practice. The accused cannot produce such a statement as it is purely self serving and the prosecution would usually not elect to do so."

In addition to that R v Tomkings was a case not of an exculpatory statement but of a mixed statement. It is not authority for the proposition being advanced by counsel. Had the cautioned statement fallen into the mixed category I would have little difficulty with its admission subject to resolution of the second matter referred to below.

I do not agree with defence counsel when he says in his written submissions that the prosecution are seeking to tender the statement. Clearly they are not. They reversed their original course of action when the court pointed out the difficulty with the statement. This in my view they are quite entitled to do. There is no impropriety in their doing so. They are under no duty to try and tender an exculpatory statement. Indeed they would arguably be in breach of their duties as officers of the court to try and do so. As I would be in allowing plainly inadmissible evidence to be left to a panel of lay assessors.

The further argument by defence counsel that the cautioned statement is not wholly exculpatory because of the question and answer towards the end on the issue of the previous conviction is non-sensical. Those are two separate issues that should not be confused. The accuseds admission of the existence of the previous conviction for a traffic matter is not an incriminating admission on a charge of murder.

As to the second issue of breach of the accuseds constitutional right to silence again the law is very clear. The Court of Appeal in the landmark judgment of Attorney General v Ueti which all counsel should be familiar with and which for defence counsels benefit is reported in [1994] WSCA 19 held as follows;

"Where there is an evidential foundation for the view that a confession has been obtained by breach of the Bill of Rights, (and here they are referring to the New Zealand 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 accuseds guilt are not such special reasons. Nor, even more obviously, are the seriousness of the offence charged or a likelihood that the prosecution will fail unless the statement is admitted.

We see no reason why those principles should not apply in Western Samoa. While an exhaustive statement cannot be made of what may constitute special reasons for departing from the prima facie rule of exclusion, we can see nothing in the circumstances of this case which could have taken it out of that rule."

As observed by the Chief Justice in the subsequent case of Police v Masame [2007] WSSC 66 also a judgment I commend to counsel:

"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 or the New Zealand 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."

Quite clearly the prima facie exclusion rule is for the reasons that have been given the rule to be applied at present in this jurisdiction. The argument by the accused that he waived the breach of his constitutional right cannot succeed. And there are no special reasons for not applying the prima facie exclusion rule.

For all the abovementioned reasons the courts initial decision that the cautioned statement is inadmissible as a matter of law stands. The cautioned statement is not to be placed before the assessors neither are counsel permitted to refer to the police interview of the accused or any part thereof in their questioning of the accused as I am told by counsel for the defence that he will be giving evidence in this matter.

.........................
JUSTICE NELSON