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Regina v Bina - Ruling [2005] SBHC 157; HCSI-CRC 178 of 2004 (14 June 2005)

HIGH COURT OF SOLOMON ISLANDS
At Honiara

Criminal Case No. 178 of 2004

REGINA

-v-

VICTA BINA

Date of Hearing: 2 June 2005
Date of Ruling: 14 June 2005

Evidence - Caution statement - admissibility matters for consideration - whether trial judge should read entire record or caution statement on a voir dire

Evidence - caution statement - Legal representation - interview stage - Constitutional right to defend oneself or have a lawyer before a Court of law does not extend to a right to a legal representative during interviewing stage.

Evidence - caution statement - discretion - question of fairness to accused - oppression must relate to manner or behaviour of authority to be impugned - subjective expression by accused of "afraid" must relate to facts of "oppression".

Evidence - caution statement - Judges Rules - what is necessary to comply - pidgin warning in "Grey Book".

During the course of the trial of the accused for the murder of his mother-in-law, defence objected to the admissibility of a record of interview carried out by the police after the accused had been brought from the weather coast. The facts appear from the judgment.

Held: 1. a judge should only read that part of a record or caution statement which goes to the issues raised by the defence when objecting to its admissibility.

2. there is no right to legal representation in circumstances when police take a caution statement, for Judges Rules govern procedure and "fairness" implied by compliance..
   
3. "oppression" must be shown to have originated from a person or persons in authority over the accused. "Neighbours" who apprehend the accused immediately after a killing cannot be said to "persons in authority".
   
4. compliance with the Judges rules set out in volume 1 of the "Grey Book" should follow the core elements of the pidgin or English warnings to be effective.
   

Cases Cited

Uda Lili Gasika v The State (1983) PNGLR 58
Schliebs v Singh (1981) PNGLR 364
R v Fulling [1987] EWCA Crim 4; (1987) 85 Cr.App. R. 136
R v Priestly (1967) 51 Cr.App. R. 1

Judges Rules, Criminal Law in Solomon Islands, Volume 1, at 214 (the Grey Book)
Solomon Islands Constitution s. 10 (2)

Trial for murder.

P. Little of DPP for the Crown.
L. Kershaw of the Public Solicitors office for the accused.

RULING ON THE VOIR DIRE REGARDING THE CAUTION STATEMENT/RECORD OF INTERVIEW

Brown PJ: I have not read the caution statement except for the introductory parts dealing with the warning given to the accused and his acknowledgment on p 2 as well as the last page. It is not obligatory for the trial judge to read the entire record or caution statement, on a voir dire.

That question, whether to read or not was canvassed in Uda Lili Gasika -v- The State (1983) PNGLR58 where the PNG Supreme Court per Andrew J (with whom other members concurred) said at 62:

In my view, the better practice in most cases is for the trial judge to hear the evidence of both sides on the voir dire and then to consider whether there might be some assistance from looking at the document. He should invite submissions from counsel as to whether he should exercise that discretion or not.

Since the pidgin introductory remarks have been criticised by Ms. Kershaw, it is necessary for me to closely consider them but the body of the document has not been spoken about and does not relate to the argument raised by Ms. Kershaw. It may be different, for instance where the phraseology of a question is alleged to be manifestly unfair.

Judges Rules govern procedure for police taking caution statements/records of interview.

These Rules, at 214 etcetera of Criminal Law in Solomon Islands, Vol. 1 (the "Grey Book") include a pidgin language suspect interview warning. The warnings differentiate between that given a suspect preparatory to a police officer conducting a record of interview and that required where a suspect offers to make his own statement. The formal warning, reproduced in the Grey Book, from that directed to be given by Daly CJ in the early 1980’s in lieu of the pre-existing English Judges Rules, is similar in fact, to that written by Detective Sgt. J. Leguhavi in his own handwriting at the commencement of the record. Despite criticism by Ms. Kershaw I fail to see any material omission in that handwritten warning, least any sufficient to warrant interference on that issue. The warning does as Mr. Little says, contain all the core elements of the pidgin warning in the Grey Book. The purpose of the "Rules" is to afford the interviewee procedural "fairness".

Ms. Kershaw says the caution written was defective and misleading. In the record the Detective Sgt has told the suspect he may remain quiet. He warned the suspect if he were to open on the matter to consider carefully his response. Either the accused or the Detective Sgt. could write the record, but what was taken down may be given the court if the matter was to proceed. The statement followed the pidgin warning in the Grey Book. Despite Ms. Kershaw’s suggestion the form of words derogated from the accused’s right to remain silent, I am satisfied, in the light of the latter question, "waswe you agree or willing for answers altogether question where bae mi askem you" and the answer "yeah" that the suspect could not be said to have had no real opportunity to remain silent. It was not a case, as argued by the defence, of proceeding straight away with the taking of the record, the questions did not start as a continuation of the warning, rather as Mr. Little pointed out, the record shows this not to be the case. A specific question was asked by the policeman, whether the suspect wished to proceed. Since the wording follows closely the judge’s rules it cannot be said to be defective or misleading.

As part of her submission Ms. Kershaw referred to the absence of a "real opportunity to consult a lawyer" or have a lawyer present. She quoted from Miles J’s judgment in Schliebs -v- Singh (1981) PNGLR 364 at 367 where Miles J obiter, spoke of affording an accused a real opportunity of making a choice given him to have a lawyer present. In the sense that merely stating a form of words was not enough, rather the interviewer must ask the question, or give time for a considered response after saying (as the interviewer appears to have done in Schliebs case) "you have a right to have a lawyer or friend present" before proceeding at once with the interview. In the case of the record before me, for instance the warning of the record was followed, for example with a particular question of the interviewee "waswe you agree or willing for answerem olketa questions where bae mi askem you" So that following question then, gave sense and opportunity to the interviewee to reflect on the earlier warning and right to remain silent.

In the PNG case, it must be remembered Miles J said there was no "right to have a lawyer attend an interrogation at all". Miles J was of that opinion that if the opportunity to consult a lawyer or friend once extended to the accused, but in fact ignored by the manner of the interviewer proceeding without real opportunity being given, "confessional material may be regarded as unfairly obtained, depending on the circumstances and may be excluded". ie in exercise of a judge's discretion.

In the circumstance of a juvenile for instance, it more probable than not, would call for scrutiny were no lawyer nor adult person present at the record.

There is no "right" to have a lawyer present in this country in the sense of a "right" enshrined in the Constitution ("right to life", "liberty" etc) nor does s. 10(2) of the Constitution extend the "right" to "defend himself before the court in person or at his own expense by a legal representative of his own choice" to include a right to a legal representative at the interview stage.

In this case then, the highest that the accused may put the fact of the absence of a lawyer at the interview stage is to suggest the court have regard to it as a consideration on the latter question of discretion to exclude in any event.

The Detective Sgt. never afforded this accused any purported "right" to have a lawyer present, so consequently it cannot be said a real opportunity was lost.

There is nothing then, on the facts before me which would lead me to believe the record was not taken in accordance with the Judges Rules, is admissible and voluntarily given at that time.

DISCRETION WHEN CONSIDERING FAIRNESS TO THE ACCUSED.

Exercise of discretion as to "fairness" however, calls for consideration of all surrounding circumstances leading up to the time of the record. I agree with Ms. Kershaw’s submission relying on comments of Sachs J in R -v- Priestly (1967) 51 where he said:

‘this word oppression imports something which tends to sap and has sapped the free will which must exist before a confession is voluntary. Whether or not there is oppression in the individual case depends upon many elements...they include such things as the length of time intervening between periods of questioning, whether the accused person ahs been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid old man, or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused person is a tough character and an experienced man of the world".

But the "oppression" must be related to the manner or behaviour of the authority sought to be impugned as acting oppressively. The fact that this interviewee travelled in a helicopter; was apprehended by foreign RAMSI personnel; was taken in a motor vehicle to the cells and remained overnight in a cell in conditions not shown to have been any different to those afforded other detainees, cannot of themselves amount to oppression. Nor can the suggestion that those who held him at home pending the police arrival after the woman’s death, they could be said to be persons in authority over him for the neighbours were exercising, if anything, a right to apprehend a supposed felon in circumstances which called for some action, if not to prevent the escape of the person, then perhaps to avoid more serious consequences if others decided to avenge the death of this poor woman by directing their wrath at this suspect. It does not necessarily follow, as Mr. Little argued, that the fact the accused was frightened (on his own evidence), through-out this time, the fright was of the police’s making. He was clearly inconvenienced by his apprehension, but from an objective look, the police alone cannot be said to be the principle cause of his fright. While he may not have slept whilst tied up in his house by his village neighbours following the death of his mother-in-law (in demeaning circumstances from his subjective viewpoint) and suffered the pain and indignity of bonds to his wrist and ankles, this cannot be attributed to the police authorities. If food was not given him whilst in police custody for this period, it cannot be said, in the circumstances then appertaining in the country to be so extraordinary that it should be seen as oppressive, calculated by the police authorities to affect this man’s will. Lying on a concrete floor in the tropics, after a wooden or earth floor of a village then, does not in my view, amount to harsh and inhumane treatment likely to be seen as unreasonable by an ordinary Solomon Islander used to difficulties and what used in times past, be called exigencies of life. The medical position was not at all clear, but does not suggest he suffered at the hands of the police and if bonds broke his skin sufficiently to cause pain, the pain is unrelated to any police manner or behaviour towards him and cannot be seen as oppressive in the sense of overbearing his will.

If I rely then, on the quote from the reference to R -v- Fulling [1987] EWCA Crim 4; (1987) 85 Cr.App. R. 136 defining "oppression" as "the exercise of authority or power in a burdensome harsh or wrongful manner, unjust or cruel treatment of subject, inferiors etc or the imposition of unreasonable or unjust burdens" I unable to find the circumstances of this man’s incarceration leading up to the time of his record, in the light of the warning and his willingness to answer questions, to be such as to raise a question of oppressiveness.

If I was to equate this man with a child separated from its mother perhaps (or taken from his village) or an old man entering upon his dotage and suffering senility, persons requiring particular care, I would be patronising the individual. It would be demeaning to suggest that an ordinary villager in some way was in such need of protection from fresh experiences, places and people, that the very fact of such experiences placed him amongst those in need of particular care. He certainly does not appear to be physically impaired (although I did earlier question his mental state, it would seem the manner of interpretation may have given rise to those doubts).

The probative value of any such admissions admitted, may still be the subject of final address.

The record is admissible.

BY THE COURT