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Republic v Tion - voir dire [2001] KIHC 61; Criminal Case 02 of 2001 (25 September 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 2 of 2001

THE REPUBLIC

vs

ANGANG TION

For the Republic: Tion Nabau, State Advocate
For the Accused: Emma Hibling, People's Lawyer

Date of Hearing: 24 & 25 September 2001
Date of Judgment: 25 September 2001

JUDGMENT ON THE VOIR DIRE

The accused has pleaded not guilty to the murder of her husband, Terabwebwe Tokiaba. When Detective Tewatana Merang was called to testify in the trial, Ms Hibling for the accused indicated that she intended to challenge the admissibility of a statement taken from the accused by Detective Tewatana under caution on 15 January 2001. A voir dire was commenced and Detectives Tewatana and Bwamaere Tiira gave evidence for the prosecution, while the accused gave evidence on her own behalf.

Detective Tewatana was very light on detail. I made the remark during his evidence that he did not appear to possess an official Police notebook, contrary to the Police Commissioner's instructions, a point he conceded. He was obliged to rely on his memory alone. Ms Hibling put a number of propositions to him, to most of which he replied that he could not recall whether such a thing had been said or done. He did not assist the prosecution case greatly.

On the other hand Detective Bwamaere, to his credit, showed admirable honesty. He agreed with several of Ms Hibling's propositions, the most telling of which came in the following exchange:-

Question: The accused told Tewatana she worried about her children at home?

Answer: Yes.

Question: She told him she was particularly worried about her breast-feeding child?

Answer: Yes.

Question: Tewatana then said, "Don't worry. We'll just take your statement and then you can go back."

Answer: That's correct.

It is true that Bwamaere could not be certain as to whether that last statement was made by Tewatana before or after the taking of the statement under caution. But it seems quite clear from the language used that it was said shortly before the taking of the statement in question.

Ms Hibling correctly pointed out that where a person in authority, such as a policeman, offers an inducement, it is incumbent upon the prosecution to prove that such inducement was not acting on the mind of the accused at the time the impugned statement was given. A seemingly innocuous comment from a police officer is capable of amounting to an inducement, and the intention of the officer concerned is irrelevant. Where a suspect is led to believe that some benefit may be had from giving a statement, such statement cannot be said to have been voluntarily given. That much is clear from the English case of Zaveckas¹, where a statement was ruled inadmissible in circumstances where the suspect was led to believe that he would be given bail if he gave a statement.

I accept that the words attributed to Detective Tewatana by Detective Bamaere were spoken to the accused. I also accept that they are capable of amounting to an inducement. The accused was in a distressed state, concerned for the welfare of her children who had been left to fend for themselves. In the circumstances I am not satisfied that such inducement was not acting on the mind of the accused at the time the statement was taken.

I have no discretion to admit the statement into evidence. A suspect's right to silence is sacrosanct. I must rule that the statement is inadmissible in this trial and I so rule.

DAVID LAMBOURNE
COMMISSIONER

[1]

^[1] [1970] All ER 413; (1970) 54 CrAppR 202