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R v Gitoa [2013] SBHC 200; HCSI-CRC 447 of 2006 (8 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case Number 447 of 2006

R

v

Stanley GITOA

Coram: PALLARAS J
Crown: Mr M Hartmann and Mr M Kelesi
Defence: Mr S Valenitabua and Mr C Ravumay

Hearing Date of Voir dire: 6 May 2013
Ruling Delivered: 8 May 2013

VOIR DIRE RULING

PALLARAS J:

1. On 7 November, 2004 the Accused was interviewed by (then) Detective Inspector Dean Anthony ROSSON, a member of PPF and an officer under the auspices of RAMSI. He was at the time a member of the New Zealand Police Force. No point was taken as to his authority to conduct a record of interview with the Accused.
   
2. D.I. Rosson was accompanied by a member of the Solomon Island Police Force, Inspector Edward JUVIA. Inspector Juvia acted as an interpreter for both the Accused and D.I. Rosson.
   
3. The Defence submit that the record of interview was inadmissible on the basis of a dual unfairness. The first basis was that the procedure adopted did not comply with the Judge's Rules as modified in Solomon Islands and the second basis was that the Accused was questioned about more than one offence in the same interview. No allegation of threats, inducements or promises were made and, as such, it was not claimed that the record of interview was made involuntarily.
   

4. A voir dire was conducted in which the Prosecution called only one witness, D.I.Rosson. His corroborator, Inspector Juvia, was not required by the Defence and so was not called. The Accused did not give evidence on the voir dire and called no evidence on his behalf.

5. D.I. Rosson was a patently honest witness who gave clear and concise evidence. Indeed, no suggestion to the contrary was ever put to him by the Defence during his cross examination. The principal complaint being made was that the exact words in the exact order as set out in the English translation of the Pidgin version of the Judge's Rules were not strictly followed during the interview. It was submitted that this necessarily made the document inadmissible.

6. In my view, it does not follow that if the precise words of the procedure set out in the local Judge's Rules are not repeated verbatim that the result is that the document is necessarily inadmissible. The ultimate decision on an issue of whether there has been any unfairness to an accused is a matter of discretion for the trial judge. The determination of the exercise of that discretion rests upon all of the facts in the voir dire case, not just whether or not a formula has been slavishly followed.

7. If the circumstances of the case show that the Accused has been treated fairly, has been informed inter alia of his rights to Counsel, to remain silent, to write his responses or to have them written for him and the resulting interview is then read back to the Accused who agrees with its contents and adopts it by his signature, then in the great majority of cases, the document will be admissible.

8. In this case, the evidence showed that immediately prior to being interviewed by police, the Accused had the benefit of some 15 minutes advice from Counsel from the Public Solicitor's Office. It is un-imaginable that Counsel would not have explained to the Accused what his rights were. After all, that was his only purpose at that stage of the investigation. So prior to the record of interview beginning, I am satisfied that the Accused had the benefit of proper legal advice.

9. During the police interview, the Accused was informed of his right to silence, of his right to write out his own statement or have it written for him, the fact that any statement he made was liable to be produced in evidence and of his right to speak to a lawyer in private. The Accused said that he understood these rights. No suggestion was made in cross examination that these rights were not in fact explained to the Accused.

10. At the conclusion of the interview, it was read back to him in Pidgin by Inspector Juvia and the Accused was asked if he understood the statement read to him and if it was true. He answered that he understood and that it was true. No suggestion was made in cross examination that the document was not read back as described or that the Accused did not understand its contents.

11. While the burden of proof in these proceedings is on the Crown to prove beyond reasonable doubt that the interview was conducted fairly and while I am most conscious that the Accused bore no burden of proof at all, the only evidence before me was the un-contradicted evidence of D.I.Rosson. As I have indicated, I found him to be a truthful witness and can find no reason whatsoever to disregard his sworn evidence.

12. As a result, I find that the Crown has satisfied me beyond reasonable doubt that there was no unfairness attending the Accused in the content or indeed the form of the warnings he was given. I am satisfied beyond reasonable doubt that his rights were explained to him and that he understood them. The evidence was that the Accused had voluntarily presented himself to the police station and it is difficult to imagine that he did not realise that he might be asked and indeed might be keen to give a statement to the police.

13. But on the evidence before me, I find that the Accused was well informed and that no unfairness attended the interview in this regard.

14. The second aspect of the Defence submissions relates to the fact that within the one interview, the Accused was asked about more than one offence. Two offences were alleged to have been committed subsequent to the main charge of murder. No separate caution was given to the Accused prior to moving onto the questioning for each offence.

15. D.I. Rosson maintained that it was a common practice in New Zealand to lump together questions about separate offences in the one interview. While I'm not in a position to challenge that assertion, if it is correct then it certainly is different to familiar practice in other Commonwealth jurisdictions. At the very least one might expect that an Accused is reminded of the caution before being questioned about a second or subsequent offence. I find that the practice followed by D.I. Rosson was motivated by expediency rather than a strict adherence to good practice.

16. But once again, this finding does not necessarily result in the conclusion that there was unfairness. The interview might have been done more fairly than it was but that is not to say that it was conducted in an unfair manner to begin with as that again depends upon looking at all the facts placed before the Court in evidence during the voir dire.

17. In this regard I return to my earlier findings that the Accused had the benefit of legal advice immediately before the interview, that he was properly informed of his rights by police officers, that he understood those rights, that the statement was adopted by him as truthful and that no unfairness attended its making.

18. In those circumstances I am satisfied beyond reasonable doubt that there was no unfairness in this regard and that the second submission of the Accused should be rejected.

19. The document will be admitted into evidence.

THE COURT