Police v Taula [2020] WSSC 63 (29 September 2020)

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Case name:	Police v Taula

Citation:	[2020] WSSC 63

Decision date:	29 September 2020

Parties:	POLICE v MOTU TAULA male of Alafua and Vaimoso

Hearing date(s):	28 & 29 September 2020

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	Justice Fepulea’i Ameperosa Roma

On appeal from:

Order:	- Accordingly, I order that that evidence is excluded from the trial of the accused.

Representation:	L. Sio and Ms V. Faasii for Prosecution Leulia’iali’i T. Malifa for Accused

Catchwords:

Words and phrases:	Breached of the accused’s right –

Legislation cited:	Evidence Act 2015, section 20

Cases cited:

Summary of decision:

Counsel:
Ms L. Sio and Ms V. Faasii for Prosecution
Mr Leulia’iali’i T. Malifa for Accused

[1] Prosecution seeks to tender and rely in the trial of the accused on evidence by Corporal Ieremia Su’a, the investigating officer, of an oral admission made to him by the accused in the course of an interview at the police station in Apia in the early hours of 2 July 2018.

[2] The contents of the admission are that he was racing with the deceased along the strip from Mcdonalds; he did not like the deceased because he was a showoff; whilst driving, he had seen the deceased from his mirror; and when the deceased overtook him, he hit the deceased’s vehicle.

[3] The accused seeks to exclude that admission on the basis that it was improperly obtained. He relies on section 20 Evidence Act 2015.

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and also takes proper account of the need for an effective and credible system of justice.

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it;

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith;

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used;

(f) whether there are alternative remedies to the exclusion of evidence which can adequately provide redress to the defendant;

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others;

(i) whether the impropriety arose from a genuine misunderstanding, accidental or unintentional infringement.

(a) in consequence of a breach of the rights to consult a lawyer or the right to remain silent and not to make a statement; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

[5] Corporal Ieremia Su’a was the first prosecution witness. He was the Investigation Officer. He was called the scene of the accident whilst on duty around the town clock. He got to the scene when officers from FESA were there. They tried to get the passengers out of the vehicle. He contacted Police Forensic to take photos and informed their Officer in charge that someone had died from the accident.

[6] Later that evening 1^st July 2018, he gathered information from 2 males who worked at the Petrol Station opposite the scene and a telephone operator at the nearby City Cab taxi stand. They told him that the other vehicle involved was a yellow Toyota corolla with a spoiler at the rear.

[7] With that information and prior knowledge of police complaints involving the vehicle as described by the witnesses, he went to a home at Alafua and found a vehicle covered in the yard. He spoke to a female there and not long after, the accused Motu came out. He asked him “o le taavale lea?” and he replied yes. He further asked “poo ai na alu atu ai,” and the accused replied, “o a’u.” He then told him to come to the station to talk about the incident. The accused did as told and drove to the station in his own vehicle.

[8] At the station he asked him if he had a driver’s license and he replied no. He told the accused that they wanted him in their investigation. He went on to explain to the accused that if at any stage of the investigation he becomes a suspect (‘a faapea e alu alu ae masalomia oe’) then he needed to be informed of his right to silence and right to Counsel. According to Corporal Ieremia, he proceeded to explain to the accused each of his rights.

[9] Soon after he explained to him his rights, the accused told him how he disliked the deceased because he was a showoff; that he took off when he saw the accused approaching from his mirror; and just when the deceased overtook him, he hit the deceased’s vehicle and fled the scene.

[10] After he was told all this by the accused, Corporal Ieremia again advised him of his right to Counsel and right to silence and told him that there would be charges against him. It was then that the accused told him “Oi sole, ao lea ua mao faamatala atu le mea sa tupu”

[11] Corporal Ieremia says that he recorded the accused’s statement as they talked. He confirmed the statement he took as the one dated 2 July 2018 in its early hours. The statement however contains only the accused’s explanation as to his involvement in the incident. It does not record Corporal Ieremia informing the accused of his rights.

[12] Asked why he did not record as a cautioned statement the accused’s first statement of 2 July 2018, he replied “ou te le’i mautinoa lelei o ia na avea le taavale ae na ta’utino mai loa, taimi tonu lea na taina ai.”

[13] Under cross examination, Corporal Ieremia maintains that whilst the record of the first interview of 2 July 2018 does not state, he in fact explained to the accused his right to silence and right to counsel twice, firstly before the accused made the admission, and secondly after the admission when he also advised the accused that there would be charges against him.

[14] The second witness for prosecution was Constable Lokeni Su’a. He was working in General Policing unit in the early hours of 2 July 2018. He went to the traffic section and found Corporal Ieremia talking with the suspect (‘le na masalomia’). Corporal Ieremia asked him if he could join them. He missed the beginning of the conversation but was present when the accused explained how his and the deceased’s vehicles were speeding; that he did not like the deceased and that he swerved against the deceased’s vehicle because he was a showoff.

[15] The statement was recorded by Corporal Ieremia and later was signed by all three of them, himself as a witness. Under cross examination, he agreed that he did not hear Corporal Ieremia advise the accused of his rights.

[16] The accused gave evidence. He does not dispute coming to the police station and being interviewed by Corporal Ieremia. He says however that Corporal Ieremia came with him in his vehicle and strongly denies that he was advised and explained his rights by Corporal Ieremia at any time during the interview. It was only during the second interview on 5 July 2018 that he was cautioned and he refused to make a statement. According to the accused, all he was told on 2 July 2018 was to explain what happened, his involvement in the incident and the reason why he did what he did.

[17] Under section 20, the first question I must decide on the balance of probabilities is whether Corporal Ieremia’s evidence of the accused’s admission was improperly obtained. Evidence is improperly obtained if it is obtained in consequence of a breach of the rights to consult a lawyer or the right to remain silent and not to make a statement (S.20(5)(a))

[18] Prosecution relies on the evidence of Corporal Ieremia that the accused was verbally informed of his right to silence and right to counsel before he made the oral admission which he recorded in the accused’s statement dated 2 July 2018, and witnessed by Corporal Ieremia and Constable Lokeni Su’a. They rely further on the evidence that the accused was again advised of his rights after he made the admission and before he was advised of the charges against him.

[19] I found Corporal Ieremia lacking in credibility. He was evasive and contradicting in his testimony. Clearly before he went to the accused’s home, he had gathered information about the other vehicle involved. At the accused’s home and in response to his questions, the accused confirmed to him the vehicle involved and that he was the driver. At that point and before they arrived at the police station the accused was the suspect. I do not accept Corporal Ieremia’s evidence that he had not then made up his mind to charge the accused and that it was only after the accused’s admission that he decided to do so.

[20] It is not disputed by prosecution that once the accused became the suspect, police should have cautioned him of his rights. Police are expected to conduct themselves to a higher standard and ensure that these rights accorded to an accused under the Constitution and the relevant legislation are observed. They argue that on the evidence of Corporal Ieremia, this was done in relation to the accused’s admission on 2 July 2018 though the written statement does not record.

[21] Again I found Corporal Ieremia’s testimony most incredible. Firstly, for such an important part of police investigatory work, the administering of caution for an accused should have been recorded as was the accused’s admission of his involvement itself. Corporal Ieremia says that the accused was cautioned twice, yet on both occasions, none was recorded except the admission by the accused. Secondly if caution was in fact administered twice on 2 July 2018, why then was it necessary to obtain another cautioned statement 3 days later. Thirdly, his evidence is not supported by Constable Lokeni Su’a whom I found credible. Constable Lokeni was present and was clear that he did not hear the accused being advised of his rights by Corporal Ieremia.

[22] In my view, the accused was already a suspect when he confirmed to Corporal Ieremia at Alafua that he was the driver; and Corporal Ieremia had decided that the accused would be charged when they arrived at the police station. However, instead of cautioning the accused, he deliberately interviewed him with the aim of obtaining a confession.

[23] I find on the balance of probabilities that the evidence was obtained in consequence of a breach of the accused’s rights and therefore obtained improperly.

(ii) Whether or not the exclusion of the evidence is proportionate to the impropriety.

[24] It cannot be emphasised enough the importance of the rights of an accused as guaranteed under the Constitution and relevant legislation, that the police have a duty to ensure they are observed at all times and to a higher standard. It is necessary in ensuring an effective and credible system of justice. In this case, these rights were not only breached by police, they were done so deliberately and in bad faith. The accused was facing a charge involving the death of the victim and the duty of police to inform him of his rights was no less significant.

[24] For those reasons, I also find that the exclusion of the evidence of the accused’s admission to Corporal Ieremia Su’a on 2 July 2018 is proportionate to the impropriety.

[25] Accordingly, I order that that evidence is excluded from the trial of the accused.

Supreme Court of Samoa

Police v Taula [2020] WSSC 63 (29 September 2020)