Police v Malota [2013] WSSC 138 (2 October 2013)

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Case name:	Police v Malota

Citation:	[2013] WSSC 138

Decision date:	02 October 2013

Parties:	POLICE and TUSITALA MALOTA male Vailima and Melbourne Australia

Hearing date(s):

File number(s):

Jurisdiction:	Crimina

Place of delivery:	Mulinuu

Judge(s):	Justice Nelson

On appeal from:

Order:

Representation:	Ms L Su’a-Mailo for prosecution Mr Faleauto for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

[1] The defendant has challenged the admissibility of a cautioned statement he made to the police on Friday 21 June 2013 when he was interviewed about the allegation that he raped the complainant in this matter a 14 year old female. As the trial of the defendant is pending the court has issued an order suppressing publication of the details of this voire dire and anything that may identify the young girl in question.

[2] The police evidence is that the defendant was arrested from the place where he resides the morning of 21 June 2013 and taken to the Apia Police Station. There he was charged and placed into the police holding cell. Later that morning taken to the Domestic Violence Unit (“DVU”) room of the station and interviewed by Corporal Goretti Fidow-Tuifoi an officer with some 8 years experience but who had only recently been attached to the DVU. The interview was conducted at a desk behind a half wall partition that separated the desk from the general public area. Adjoining the room is another room which seems to be now a kitchen area. Entry into the DVU is via a door that opens into the public area.

[3] It is apparent from the courts inspection of the Unit room that it is not a large room. Officers seated at any of the desks can easily overhear conversations occurring at nearby desks. Seated at an adjoining desk witnessing the interview of the defendant was Constable Michelle Arasi-Mulitalo.

[4] The cautioned statement records that the defendants interview began at 10:26 am Friday 21 June 2013. The statement was signed by the defendant and the two police officers and it contains the usual caution and advice to suspects as to their constitutional right to silence and to counsel. The relevant part for present purposes reads as:

E iai lau aia tatau faaletulafono e ao ona ou faailoa atu ina ia e malamalama lelei ai e faapea, e le faamalosia oe e fai sau faamatalaga sei vagaga ua e loto malie i ai ae a e manao e fai sau faamatalaga e mafai ona faamaumau i lalo e avea ma mau.

Tali: ou te le o manao e fai sau faamatalaga ae o lea ou te ioeina lou fai aiga ia Lakisha Tyrell.

[5] It is this part of the cautioned statement that the defendant objects to. He says he told the corporal he did not wish to make a statement to the police and that when the corporal read the final cautioned statement document to him she did not read that part of T16 admitting to having sexual intercourse with the complainant. He also said he needs glasses to read and he told that to the officers. And that is why the corporal had to read the cautioned statement to him. That is also why he was unable to read the statement for himself or the police green card outlining a suspects rights given to him by the corporal to read at the outset of the police interview. His further evidence was he told the corporal he wanted a lawyer and said ‘no lawyer no statement’.

[6] Defence counsel has challenged the admissibility of the statement arguing that firstly the defendants constitutional right to counsel and right to silence have been infringed. Secondly the defendant did not make the incriminating admission contained in the latter part of T16. And that he signed it not knowing the admission formed part of the statement. Counsel concedes that the challenge is not based on any unlawful threats promises or inducement made or held out to the defendant.

[7] If what the defendant says is true I accept that his constitutional right to counsel and to silence would have been infringed and that the admission in the latter part of T16 would not meet the common law test of voluntariness. The essential question then is whether I accept what the defendant maintains or what the police officers say.

[8] The corporals evidence is that what occurred during the interview is accurately recorded in the statement. The defendant was brought in to the office, told what he was being interviewed about and answered introductory questions. He was given the police green card advising him as to his legal rights to silence and to defence counsel which he took 10 minutes to read. The corporal verbally explained to him his legal rights. Firstly his right to silence in response to which he said he did not wish to make a statement but then admitted to having sexual intercourse with the complainant. His right to have a lawyer present was explained to him and the defendant waived that right again as recorded in the statement. And finally his right to have a lawyer to represent him at his trial was explained and his response was he would engage one.

[9] At the end of the passage concerning each right the corporal said the defendant affixed his signature as he also did at the end of the statement on its final page. The statement concludes with the police acknowledging that the defendant expressed a wish not to make a statement and advising him that he was being charged with at least one count of rape. The corporal said the statement was given to him to read which he did but just to be thorough she read it back to him before he was asked to sign. She said there was no indication he could not read the statement because he required reading glasses. Neither was there any indication he did not understand what was transpiring. He never told the officers that he had nothing to do with the allegations and he did not do anything to the girl. Nor did he tell the officers that he wanted a lawyer to be present at the police interview.

[10] There are some markings on the original of the statement at pages 2 and 3 made in blue pen. The corporal denied making these and said these were not there at the time the statement was taken and signed by the defendant. It is obvious that these were done subsequently by someone. The police should be reminded to take better care of such documents. Especially if they want to use it as an exhibit in a court case. But these markings for the record do not in my assessment affect the validity or admissibility of the statement.

[11] The corporals evidence was supported by the witnessing constable. Her evidence was generally consistent with that of the corporal except in one area. She said the corporal did not read the statement to the defendant and that the defendant read it for himself before he signed. The constable also said no issue was made by the defendant of being unable to read the statement and she knew the defendant did not require glasses because she had previous experience with the defendant. She had taken a statement from him in relation to an earlier complaint he had lodged with the police of being assaulted by another person.

[12] The constable also said the defendant did not deny involvement to them. And that she witnessed the whole of the taking of the statement. She denies she was attending to other work or shuffling papers at her desk. She testified there were other police officers around the vicinity of the unit room but only her and the corporal were in the room when the defendants statement was taken.

[13] That was the extent of the prosecution evidence. At the end of which I entertained some doubts as to the veracity of the officers testimony because of the large glaring inconsistency between what the corporal said and what the constable said in relation to the reading of the statement to the defendant. The corporal said she did but the constable who was supposedly seated in the desk next to her witnessing the interview said she did not. But any doubts I had were quickly dispelled by the defendant himself who elected to testify.

[14] On this particular issue he agreed with the evidence of the primary witness the taker of the statement Corporal Goretti. His evidence was that because he could read and he did not have his glasses the statement was read to him by the corporal. The relevant part of his evidence is contained at page at page 33 of the transcript where he says when questioned by his counsel:

“Question: now at the end of this interview you were, it says you were given the statement to read.

Answer: na aumai le pepa ae ga ou fai ia Koleki e le mafai ona ou faikauga e leai se kioaka.

[15] The defendants other evidence was he was taken out of the cell to the DVU room that morning where he was interviewed by the corporal. He accepts the constable was seated at the next desk but says she was not focused on the interview. She was pre-occupied with other work. He also said other officers came in and out of the room some of them drinking coffee and the constable said hello or greeted some of them. There were also people in and out through the passage way which bothered him as he wanted to be interviewed in a more private setting. But his answers in cross examination indicated that did not materially affect the substance of his police interview. His evidence was he understood the “aotelega” of the police enquiry and what was taking place.

[16] The defendant said he is a native of this country. He was born here, lived and went to school here up to form six level before he left in his early to mid-twenties. He has lived overseas for some thirty (30) years and he seems to be a recent returnee to the land of his birth. He can speak fluent Samoan but has trouble reading Samoan. I find that rather strange. People who speak a language are generally able to read it as well. Perhaps his reading is a little rusty from spending many years overseas. But he can read Samoan well enough as was apparent in the witness box when he was asked by prosecution counsel to read certain parts of his statement. This despite his best theatrical efforts to the contrary. I also note that at the beginning of the cautioned statement he was asked “e lelei sau faitau tusi?” and his answer was “lelei”. I am satisfied as to his ability to read and understand his native tongue. The latter being amply demonstrated by his answers in Samoan in the witness box to questions in English from his counsel.

[17] The defendants evidence was that when the interview began he was given the police green card to read. But because he had no glasses he could not read it. He says he told the corporal that. In fact he complained to the corporal about lack of glasses three times during the interview. But the corporal paid no attention to the complaints. He said that is why he could not read the final document and it had to be read to him. After it was read to him he signed it.

[18] He disagreed with Constable Michelles evidence about his not requiring glasses when he lodged his earlier police complaint. He explained that on that occasion no written statement was made by him. That would be very unusual. In my experience in this jurisdiction victims or complainants are always required to sign a written statement of complaint. The police generally would not act on a verbal complaint alone.

[19] The defendant also said he told the police during the interview he wanted a lawyer. And that he would not have made a statement without a lawyer. Furthermore that he denied three time at least any wrongdoing in this matter.

[20] The defendants evidence is unconvincing. It is hard to accept that a mature person who has lived overseas for some thirty odd years would sign a document not once but four times without knowledge of what it contained. The defendant did not strike me as ignorant uneducated or foolish. And he knows how things work. He lodged a criminal complaint of assault with the police prior to this incident. He did not say when but obviously that was done when he returned to this country.

[21] He reached a form six level of education at one of the local colleges. In those days that would have been the highest level achievable in country. The cautioned statement he gave to the police says he holds a job in a hospital in Melbourne, Australia. Indicating that he is currently working.

[22] I also do not accept that his vision is impaired to the extent that he claims. He had no problem signing his name yesterday in court without glasses. And his signatures in the cautioned statement are contained on the line, no where else indicating that he was able to see well enough what he was doing. But even if I accept that he is as blind as he tries to make out and that he requires spectacles I have no reason to doubt the evidence of the police officers that he made the incriminating admission to the police as recorded in T16 of the cautioned statement. The fact that the admission was given after the statement that he did not wish to make a statement does not affect its admissibility in law. It is in the same category as an admission made by a suspect to an interviewing police officer blurted out before the police officer has had time to caution or advise legal rights to a suspect. There is ample authority to that effect and that in those circumstances an admission is nevertheless admissible provided it meets the test of voluntariness.

[23] Certainly counsel was not able to cite authority to the effect that the present situation should be treated differently. There is also no force in the submission that at that point the defendant had already refused to make a statement twice. The evidence as accepted by the court from the statement does not show that. The statement shows the defendant was firstly asked if he understood his rights, his answer was yes. Then he was asked if he wanted to invoke his rights, his answer was yes. Then he was asked to clarify what he meant and his answer was T16 which contains the incriminating admission.

[24] The proper interpretation of all that is only in T16 did the defendant first express the wish not to make a statement. It is not unreasonable or uncommon that a defendant when interviewed would make a voluntary admission to a lesser matter when being interviewed in respect of a larger more serious matter. In this case the defendant was being interviewed on allegations of rape. His response was I do not want to make a statement abut that matter but I do admit to having sex with the girl. There is nothing beyond belief about such a situation.

[25] The challenge to admissibility fails. The cautioned statement is ruled admissible as evidence in the defendants trial.

Supreme Court of Samoa

Police v Malota [2013] WSSC 138 (2 October 2013)