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Leo v Public Prosecutor [2008] VUCA 19; Criminal Appeal Case 7 of 2008 (25 July 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

CRIMINAL APPEAL CASE No.07 OF 2008

BETWEEN:

SANDIE LEO
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Oliver Saksak
Justice Mark O’Regan

Counsel: Mr Hillary Toa for the appellant
Mr Bernard Standish for the Public Prosecutor

Date of hearing: 21 July 2008
Date of judgment: 25 July 2008

JUDGMENT

This is an appeal against conviction recorded on 15 April 2008 after the appellant was found guilty following a trial before his Lordship Justice Tuohy. The appellant has not yet been sentenced.

The appeal was brought within the 14 days time limit imposed by s.201(1) of the Criminal Procedure Code Act [CAP.136]. However, a Memorandum of Appeal was not lodged with the Registrar of the Court until 17 July 2008, and unless an extension of time is granted under s.201(4), the appeal is deemed to be withdrawn: see s.201(5). The Public Prosecutor has not opposed the grant of an extension of time, and accordingly we grant an extension under the power to 17 July 2008 for the filing of the Memorandum of Appeal.

By way of background, in the months of June and July 2007 a number of cheques drawn by the Government of the Republic of Vanuatu were fraudulently altered and deposited into various bank accounts in Port Vila. Investigations revealed that one of the primary offenders behind the fraudulent activity was one Salendra Sen Sinha (Salendra). When his criminality was detected, he absconded from Vanuatu in breach of bail. However a number of others alleged to have been involved with Salendra in fraudulent activity have stood trial. The appellant was one of those persons. He was arrested at the National Bank of Vanuatu, Port Vila Branch on 10 July 2007 and charged in relation to his participation in fraudulent activity. He was charged together with Lopez Adams in the Supreme Court in Criminal Case No.74 of 2007, and he pleaded not guilty to six charges brought against him.

The charge brought against Lopez Adams in the indictment concerned a Government cheque No.2154925 which the prosecution asserted Salendra had forged by making two material alterations in relation to it, first by erasing the name of the payee and substituting "Sandie Leo Construction", and secondly by erasing the word and figures "SEVEN THOUSAND, FIVE HUNDRED VATU – VT7,500" and substituting the words and figures "NINE MILLION, EIGHT HUNDRED AND NINETY FIVE THOUSAND VATU – VT9,895,000". The prosecution asserted that Lopez Adams aided Salendra in the forgery by providing the cheque to him which was made out to Lopez Adams’ business as payee. Lopez Adams denied that charge and was acquitted of it at trial on the basis that the Judge was not satisfied that he had given the Government cheque to Salendra. It was possible that Salendra stole it without Lopez Adams knowledge.

In the charges against the appellant in respect of the forged cheque, the prosecution asserted that the appellant deposited it into his personal bank account (count 2 of the indictment), made several withdrawals from his account as a direct result from banking the forged cheque and thereby dealing with the funds as though they were his (counts 4, 5, 6 & 7). On each of these matters the appellant was found guilty, although on a further charge (count 5) that he had transferred funds from the account into which the cheque had been deposited into a separate account in his name he was acquitted on the basis this charge was misconceived.

At trial there was ample evidence that the appellant had deposited the forged cheque and had made the withdrawals the subject of the charges. The evidence came from tellers at the Bank and in evidence given by the appellant at his trial. However the appellant denied that he had acted dishonestly in depositing the cheque and making the cash withdrawals. His case was that he is a naïve, simple and illiterate man who simply did what he was told by Salendra, not realising that there was any dishonesty involved. He said he believed the money belonged to Salendra, and that he gave all the cash withdrawals to him believing that he was entitled to Government money.

The trial Judge rejected this line of defence, finding that the appellant was well aware that the transactions were dishonest, that the cheque was forged and that Salendra had no right to the money. The trial Judge concluded that these facts led inevitably to the conclusion of guilt beyond reasonable doubt on all those charges where convictions were entered.

In his reasons for decision the learned Judge identified what he called "the main points" proving that the appellant knew that the cheque was false and deposits and withdrawals were dishonest. Included among those "main points" were admissions made by the appellant in a statement given by him to the police on 28 July 2007. At trial objection was taken to the admissibility of this statement on several grounds. Following a voir dire hearing, the trial Judge admitted the statement into evidence.

The trial Judge rejected the appellant’s evidence that he made the statement under duress. The Judge was concerned that the interview occurred after the appellant was released on bail subject to a condition that he must fully cooperate with the police. We agree with the trial Judge that such a condition is inappropriate and should not be a bail condition. Nevertheless the trial Judge for reasons given was satisfied that the statement was given voluntarily after the usual caution had been administered.

No challenge is made to that part of the voir dire ruling. However the trial Judge considered and rejected a further ground for questioning the admissibility of the statement. The appellant’s counsel had argued that the statement was rendered inadmissible by the failure of the police to advise the appellant before the interview that he was entitled to obtain legal advice from a lawyer. This submission was rejected, and is now the basis of the appeal to this Court.

It is common ground that the appellant neither asked for a lawyer before his interview, nor was he advised that he could consult a lawyer if he wished.

The Memorandum of Appeal specifies five grounds of appeal. In essence they all depend upon the appellant’s contention that under the law of Vanuatu an accused person has a legal right to be informed by the police in a language that the accused understands of his right to legal counsel before an interview, and the failure to so inform an accused person renders any statement, admission or confession made by him in the interview inadmissible as evidence against him.

The Notice of Appeal assumes that if this proposition is made good, the appellant’s convictions must, without more, be set aside as the interview statement was admitted into evidence during his trial. We return later in this judgment to consider the correctness of that assumption.

The appellant submits that the right for which he contends is a constitutional right arising under article 5(1)(d) and 5(2)(a) of the Constitution of the Republic of Vanuatu. These provisions read:-

"5.(1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-

...

(d) protection of the law;

(2) Protection of the law shall include the following-

(a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence."

In Naling v. Public Prosecutor [1983] VUCA 1; 1980 -1994 Van LR 61 the Court of Appeal considered the scope of the right recognised in article 5(2)(a) of the Constitution. In that case the Court of Appeal held that a person accused of the offence of "receiving", which was serious because it carried a heavy maximum penalty in the Penal Code Act, was entitled to be afforded, that is to say provided with a legal representative at his trial before the plea was taken. The Court held that the duty to ensure this right fell on the trial Court.

The right recognised by the Court of Appeal in Naling v. Public Prosecutor was a right that arose at the time when an accused person is charged at his trial for a serious offence. It is clear from the language of article 5(2)(a) that it is concerned with the trial process which follows when a person is charged. In the present case the process of trial had not commenced, and we do not consider that by any process of interpretation Article 5(2)(a) can be extended to give the right contended for by the appellant.

The same construction was placed on article 5 (2) (a) by Chief Justice Lunabek is Kilman v. Attorney General [1997] VUSC 3 and was assumed by the Court of Appeal in Office of the Public Solicitor v. Kalsakau [2005] VUCA 13.

The decisions in Naling v. Public Prosecutor and Kilman v. Attorney General are not authorities for the right contended for by the appellant.

Counsel for the appellant further submitted that even if article 5(2)(a) does not establish the right for which the appellant contends, the Court should recognise such a right by applying Article 47(1) of the Constitution which provides that:-

"The administration of justice is vested in the judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine a matter according to substantial justice and whenever possible in conformity with custom".

It will be noted that article 5(2)(a) in giving an expanded meaning to the fundamental right recognised in Article 5(1)(d) – protection of the law – does so by stating a number of rights which are included in the right to protection of the law. The effect of counsel’s contention is to invite the Court by reference to article 47(1) extend "protection of the law" to include the right contended for as part of the law in Vanuatu.

In support of this contention counsel referred to the common law protections for people being questioned in the course of the investigation of crime which have occurred in recent years in Australia, England & New Zealand.

The common law of England became part of the law of Vanuatu on the Day of Independence under Article 95(2) of the Constitution, and remains so to the extent that it has not been modified by Parliament and is not incompatible with the independent status of Vanuatu.

In Reg v.Chief Constable of the Royal Ulster Constabulary, ex parte Begley [1997] UKHL 39; (1997) 1 WLR 1475, Lord Browne-Wilkinson, delivering the leading speech in the House of Lords said:

"The first step in the inquiry is to see how far the authorities have gone. Certainly, the common law recognised a general right in an accused person to communicate and consult privately with his solicitor outside the interview room. This development is reflected in the Judges’ Rules and Administrative Directions to the Police which were published as Home Office Circular No.89/1978: see Archbold, Criminal Pleading, Evidence & Practice, 42nd ed. (1985), pp.1103-1105, para. 15-46. The text expressly provided that the rules do not affect certain established principles which included the principle:

(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so;..."

This passage appears to summarise the common law protection at a time which coincides with the Day of Independence. However the common law right identified does not go so far as to establish a right of a person about to be interviewed to be informed that he has a right to legal counsel before the interview occurs, and gives no weight to the proposition that a failure to do so renders admissions made during the interview inadmissible in evidence.

A review of development in England, Australia and New Zealand since 1980 shows that additional protections which have been afforded to a person suspected of crime during the investigation and subsequent trial process have been achieved by statutory amendment, not by rules laid down by judges in a development of common law principles. Moreover, even in those jurisdictions where Parliament has expressly provided a right for a suspect to have legal representation at an interview, a judicial discretion based on fairness has been retained to admit an admission obtained in breach of the provisions governing the questioning of suspects. An absolute right of the kind for which the appellant contends has not yet been recognised in any of those jurisdictions.

In considering the fundamental rights recognised in article 5, including the right to protection of the law, the qualification inherent in opening words of article 5(1) must be recognised. Fundamental rights are subject to "legitimate public interest in defence, safety, public order, welfare and health". Moreover, as counsel for the respondent contends in his written submissions, rights recognised in article 5 cannot be granted only to a section of the community on a discretionary basis. Serious issues would arise in recognising the rights contended for as there are no lawyers in several major islands of Vanuatu where there are police officers who would be called upon to investigate crime and interview suspects, and even within the major urban centres there would be major practical difficulties in implementing the right without unreasonably impeding the proper functions of the Police Force. Difficulties of these kinds were considered by Chief Justice Lunabek in Kilman v. Attorney General [1997] VUSC 3.

The practical difficulties and financial implications of recognising a general right of an accused person to be informed by the police of a right to legal advice before an interview took place are matters which should be considered and decided by Parliament, not by the Court.

We consider that the learned Judge was correct in rejecting the appellant’s submissions on the admissibility of the interview statement. In the circumstances of this case, this conclusion must lead to the dismissal of the appeal.

We observed earlier in this judgment that counsel for the appellant presented his argument on the basis that if the statement had been wrongly admitted into evidence that in itself should lead to the appeal being allowed. That submission overlooks rule 36 of the Court of Appeal Rules 1973, and the well recognised principle that the wrongful admission of evidence at trial has to result in a miscarriage of justice, or a verdict that is unsafe before an appeal court will interfere and set aside a guilty verdict. It is necessary in a case where evidence has been wrongly admitted to consider the totality of the admissible evidence led at trial, and for the Court of Appeal to decide whether the evidence that was admissible nevertheless still establishes guilt beyond reasonable doubt. If so, no miscarriage of justice follows from the wrongful admission of the disputed evidence, and the verdict is not rendered unsafe simply because the evidence was wrongly admitted.

In the present case, the learned Judge identified several "main points" for rejecting the appellant’s assertion that he did not act dishonestly. Apart from the admissions made in the interview, the other evidence led at trial in our opinion established a very strong case against the appellant. Even if the admissions which the trial Judge identified as supporting the conclusion of guilt were wrongly admitted, we consider that the other reasons advanced by the trial Judge based on admissible evidence amply support the findings of guilt.

The appeal is therefore dismissed.

DATED at Port-Vila this 25th day of July 2008

BY THE COURT

Hon. Vincent LUNABEK CJ
Hon. John von DOUSSA J
Hon. Oliver SAKSAK J
Hon. Mark O’Regan J