IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 73 of 2007
Criminal Case No. 74 of 2007

PUBLIC PROSECUTOR

-V-

LOPEZ ADAMS
SANDIE LEO

Coram: Justice C. N TUOHY

Date of Hearing: 8th April 2008
Date of Decision: 8thApril 2008

Counsel: Ms. Tavoa for Public Prosecutor
Mr. Toa for Defendant

ORAL RULING (2)

1.	This ruling relates to the admissibility of a record of interview of the accused Sandie Leo, which record was taken down on a computer, printed out and signed by him. It is dated 28th July 2007. The interview was carried out by two police officers, Inspector George Songi and Corporal Frazer Tambe. 

2.	During the course of Inspector Songi’s trial evidence when he sought to produce the record of interview Mr. Toa objected to its admissibility. The ground of objection given at that time was that the statement had been obtained through duress. The Court then undertook a voir-dire which has covered some days. The only witnesses on the voir-dire were Inspector Songi, Mr. Tambe for the prosecution and Mr. Leo for himself. The evidence was completed at the end of yesterday morning and I adjourned the trial until today, so that counsel could make legal submissions particularly relating to the issue of the right to be informed of a right to the lawyer. 

3.	I am not going to deal with all the evidence in detail because it is unnecessary. It is necessary however to set out the context in which this interview took place. It became apparent that the accused Mr. Leo has first been taken to the Police station by bank employees on 10th July, when he had presented a cheque made out for VT26 million to the National Bank of Vanuatu. It was at that time apparently that the alleged offences which I am trying relating to altered cheques came to the attention of the authorities. 

4.	Mr. Leo was interviewed that day by Frazer Tambe and a lengthy written statement taken from him, covering the particular cheque which is the subject of this trial and several other cheques which are the subject of other trials as well. Until the voir-dire got underway in fact the Court was not aware of this particular written statement. I have since been told that the Prosecution will be seeking to admit it also in the trial, and I think that is a proper course because the interview that is in question here was consequential upon the initial interview and in order to clarify and expand on what the accused had said in the initial interview. 

5.	Mr. Leo was arrested on the 10th July and in Police custody until his appearance before the Magistrate’s Court the next day, the 11th July. He was then remanded in custody until the 25th July which was a Wednesday. There was no attempt to interview him further while he was on remand in custody. On the 25th July he was released on bail by the Magistrate’s Court. 

6.	One of the conditions of bail granted by the Magistrate’s Court was that the effect that the accused as a condition of bail must fully co-operate with the Police. I may not have reproduced the words exactly because I do not have the bail form in front of me at this moment. I would make the comment here that a bail condition of this nature is not appropriate. The exact bail condition is that he must ensure full co-operation with Police investigators. While the Court would hope that citizens would co-operate with the Police, the fact of the matter is that there is no legal obligation for a suspect to give full co-operation in the investigation of himself. A bail condition of this nature could impinge upon a person’s right to silence which is mentioned in the caution. However the fact of the matter is that that bail condition was included. 

7.	The evidence of the Police officers was that on 28th July, which was the following Saturday, 3 days later, they went and picked up Mr. Leo from Teouma where he resided, brought him back to the Station and interviewed him. The interview as I have mentioned was recorded on a computer. The evidence was that the Police had set up the computer interview beforehand so that the questions that they wanted to ask were already on the computer and only the answers needed to be filled in, and any supplementary questions, and the printed record bears that out. In particular the caution required by the Judge’s Rules was included in a box and obviously had been included on the computer, if I can put it that way. 

8.	The evidence of the two officers was that the caution was given and that the interview was carried out and the answers recorded in the interview are those which the accused gave to the questions that were asked of him, that afterwards after the interview had been verbally completed the record was printed out, it was read back to the accused and he then signed it. And the record of interview does show that the accused signed it on each page, as well as Inspector Songi. 

9.	The record shows that the interview took place 28th July 2007; that it commenced 11:48 and finished at 14:13. Evidence was also given in the trial itself that an interview of Lopez Adams took place immediately thereafter. 

10.	The officers denied the various allegations that were put to them which can be summarized as follows:

i)	this interview took place at the end of several days when Mr. Leo had been taken to the Police station questioned for many hours and not given lunch;
ii)	during the interview, there was a gun present at the window and Mr. Tambe threatened the accused with the gun;
iii)	that the interview did not take place on 28th July at all but on some other date after there had been a series of daily questionings 
iv)	that the officers had sworn at the defendant and in that way forced him to sign it, when he had said that he did not want to sign it;
v)	there are also allegations made both in Mr. Leo’s evidence and in cross examination that Mr. Tambe was associating with the principal offender, so called, in all these cheque fraud, Salendra, and that he had some motive therefore in having Mr. Leo make admissions which were not true.

Mr. Leo gave evidence which supported some, but not all of the allegations that had been made in cross-examination. 

11.	I have to say that on these main issues, I accept the evidence of the Police officers and reject that of Mr. Leo not because they are police officers, and he is not but because their evidence is far more plausible than his and because it fits the records that we do have. The first thing is whether there was a series of preliminary interviews before this particular interview. There is no doubt that Mr. Leo was interviewed a number of times, because the police had chosen to investigate what must have been a very large case, cheque by cheque, and to deal with people involved separately in respect of each cheque. 
 
12.	This particular interview of 28th July for example only covers one cheque whereas I am aware that Mr. Leo is charged in relation to other cheques and I am also aware that the interview of 11th July or the 10th July covered a number of other cheques as well. However, the Court records shown in Court show that he was released on the 25th July, a Wednesday and this statement is on 28th. 

13.	In his own evidence at one point after his counsel tried to lead him to say that this interview took place at another time, he gave evidence that the Police had got him when he had just come out of church at Teouma. He is a Seventh Day Adventist and his church is on Saturday and so is the 28th July. He described the time he was picked up as "when I got out of church at 11 o’clock". That fits with the time the statement started at 11:48. 
 
14.	Also when one looked at the statement the accused actually admitted telling the police virtually everything that is recorded in it, except for about two points which relate to his responsibility. But he admitted telling the police quite complicated things about what had happened. He denied two things. One of them was that he had received any money from the proceeds of the cheque and the other was that he knew that he should not have any Government cheque to cash, Q 37. 

15.	In those circumstances it is difficult to see why and when he would have been forced to sign what he did not want to sign. There does not internally seem to be any evidence of that. I would not be surprised if at some stage the police made a remark of the nature Mr. Leo indicated about in a crude way being Salendra’s tool. Mr. Leo gave evidence that the police had made comments to him of rather crude nature suggesting that he would do anything that Salendra said. I do not doubt that some comments may have been made on occasion but there is simply nothing internally to suggest that he was forced to say anything nor is there anything to support the story that he was threatened with a gun. There seems to be very little in the statement that in fact he does not acknowledge telling the police. One wonders why they would have needed to threaten him with a gun to say things he did not want to say.

16.	I think that when he came to the station, both sides assumed that he had to go with the police to the station because of the bail condition. As I say, normally a witness is not required to go to the police station to be questioned and there has to be an issue as to whether such a bail condition should ever be imposed. 

17.	However, as far as the statement itself is concerned, I am satisfied that the caution was given; it was made voluntarily; there was no duress, intimidation, sustained or undue insistence or pressure imposed upon him by the police in order to get information; nor do I accept that there was any threat of violence or other form of compulsion. So I am satisfied the statement was voluntary. 

18.	The point which has concerned me and about which I sought submissions was the question of a right to a lawyer. The three witnesses each gave a different account of this. Mr. Songi was asked; "did you ask him if he wants a lawyer"? And he said: "I told him verbally". And then he was asked: "Did he say anything about that?". And his answer was: "Yes he needs a lawyer". And then it was suggested to him, "you could have stopped the interview then". His answer was "It was a matter of a police investigation". He was asked again: "you proceeded with the interview without a lawyer, knowing that he wanted one?". And his answer was "How would you feel if you were in my shoes". When the question was repeated he said "We told him he can’t interrupt the investigation process". 

19.	Mr. Tambe’s account of this was different. He basically said that when he came into the police station I assume on the 28th July he was meaning, "we advised him of his right to a lawyer, and if he’d asked for one, we would have contacted him (the lawyer)". He said that, Sandie Leo said he did not need a lawyer because he did not have any money. Mr. Leo said that at no stage was he ever asked whether he wanted a lawyer or informed of his right to request one. There is nowhere in the record of interview which shows that he was advised of a right to a lawyer or that anything was ever said about a lawyer, yet the interview has in it a special box relating to the Judges Rules aution, which box is no doubt reproduced from the printed form used by the Vanuatu Police for the questioning of suspects. 

20.	On the evidence I am not satisfied that the accused Mr. Leo was ever asked whether he wanted a lawyer and nor am I satisfied that he was ever advised that he could if he wanted to obtain a lawyer. I find that on this point Mr. Leo’s evidence is more plausible and that on this day nothing was said about a lawyer. 

21.	Where does that leave the matter in terms of the admissibility of the statement? There is a discretion for the Court to exclude statements from being admissible on the grounds of unfairness, even if the statement is otherwise voluntary. That ground of unfairness has deliberately never been closely defined or closed by the Courts. It is necessary to consider what is the law of Vanuatu in relation to informing suspects of their right to request a lawyer at time when they are arrested or detained by the police for questioning. Here I am satisfied that there was a de facto detention, even though the accused was on bail, because of the bail condition. I think both parties took it for granted that he was required to go with the police at least. 

22.	In considering the law of Vanuatu on any point the first stop is the Constitution Article 95(2) which says: "Until otherwise provided by Parliament the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent state of Vanuatu and whenever possible taking into account custom". The first place to look is whether the Parliament of Vanuatu has made a relevant provision or the Constitution of Vanuatu makes a relevant provision. 

23.	The Constitution does include in it some fundamental rights in Article 5. It says that the Republic of Vanuatu recognizes that all persons are entitled to the following fundamental rights and one of those is (d) protection of the law, then Article 5(2) says that protection of the law shall include the following and there are a list of things relating to legal matters and the very first one is: "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". There is nothing specifically relating to the accused or a person being afforded a lawyer at a time when they are being questioned as a suspect.

24.	It has been held in a case which I thank counsel for finding dating as far back in Vanuatu terms as 1983, Naling v. PP [1983] VUCA 1, which is Appeal Case No. 5 of 1982. And in that case the Court interpreted that protection in Article 5 (2) (a) of the Constitution as giving a person a right to a lawyer for their trial, if it is a serious offence. I agree, with respect, with the Court in that case that on the normal wording of Article 5 (2) (a), it does not grant to a person who is being questioned by the police prior to the trial the right to be afforded a lawyer then and the right to be informed of that. 

25.	According to the Constitution then the applicable law would be in relation to criminal matters the common law of Britain applied in 1980. It is not that easy to establish what that was because all the countries applying the common law which we usually look to for assistance in establishing what it is, Britain, Australia and New Zealand have all changed their law and passed an Act of Parliament which specifically gives a right to a person being detained and being questioned by the police to consult a lawyer and to be informed of that right. In New Zealand for example the provision is in Section 23 of the Bill of Rights Act 1990. In England this is given by an Act called the Police Powers Act 1984 together with the code issued pursuant to it. 

26.	However prior to the passage of those Acts there was no recognized right to a lawyer. What did happen was that if someone requested a lawyer during questioning by the police and a lawyer was not made available and the questioning continued it was common for any statement to be ruled inadmissible on the grounds of unfairness. 

27.	However, this did not happen in this case. My finding is that the accused did not request a lawyer and was not told of his right to request one. In those circumstances under the common law when no request was made for a lawyer, there was no positive obligation for the police to advise a suspect being questioned of the right to obtain a lawyer. All things being equal if nothing at all was said about the issue, no request was made and no offer by the police, the statement would not be ruled inadmissible for that reason only. And I find that that was the common law at the time of Independence and continued to be the common law in other countries until their parliaments brought in a specific act, which those major ones have done. 

28.	Mr. Toa has submitted that the passage of these Acts in other countries shows that the law has moved on in how it views these things and that it is now a matter of statute in the countries surrounding us which apply the common law and which the Courts often look to for precedents, they now require police officers by statute if they are questioning suspects to advise them of their right to obtain a lawyer, the right to request a lawyer. 

29.	He has submitted that it is open to the Court to hold that such a right is included under the constitutional right in Section 5 (1) (d), the protection of the law. He submitted that it is open to the Court to make "a milestone ruling" that would help set the precedent for future Court cases and would help set the base for improved police work when investigating crime and obtaining admissions and confessions from suspects. 

30.	I have to say that this proposal has some attractions. However, on further consideration I am not prepared by judicial decision to establish a right for all persons in Vanuatu being questioned by the police to be informed of their right to request a lawyer. I consider that this is a matter which Parliament should decide. Mr. Toa is right that the surrounding countries have all moved and all by statute not by Court decision to that position. I do not think despite the power given to a Judge under the Constitution that I should legislate judicially to that extent. Vanuatu has special difficulties in this respect, in that there are no lawyers in several of the major islands where there are police officers who might be questioning suspects. I consider that it is better for the Parliament which is constituted by the Constitution to make laws for the Republic to decide what if any law should be made about this. 

31.	That is not to say that the police cannot themselves bring it in as a matter of practice if they see fit. If they do the first thing they should do is to change their form, so as well as the caution there is in the box an instruction that a person has the right to consult and instruct a lawyer in relation to this interview or words to that effect. One of the reasons that I accept that the caution was made this case is because there was a box in the interview which contained it. Police officers are like any one else, they will follow the form usually. One of the reasons I found for not accepting that any advice of a lawyer was given by the police at this stage is because it is not in the box and was not in the record of interview and I think therefore less likely to have been said. But that is a matter for the Parliament and it is a matter for the police. 

32.	In this case I hold the statement admissible because my view is that under the law of Vanuatu, as it stands at present, the police do not have a positive obligation to advise an accused person of his right to consult and instruct a lawyer. However, as I say it does not prevent them advising a suspect of that. Also whether they advise him or not, if he asks for a lawyer it is well established that that request must be complied with before an interview can continue.

Dated at Port Vila, this 8th day of April, 2008

BY THE COURT

C.N. TUOHY
Judge