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Police v FG [2015] WSYC 4 (3 July 2015)

SAMOA YOUTH COURT
POLICE v FG [2015] WSYC 4

IN THE YOUTH COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Informant

A N D

F.G male of Satuimalufilufi.
Young Person

Counsel:
Ms L Su’a-Mailo for Prosecution
Mr A Su’a for Young Person

Hearing: 27 May 2015.

Decision: 3 June 2015

RULING OF DCJ TUATAGALOA
(On Voir dire)

Introduction:

1. I announced my ruling on 27 May 2015 after hearing the evidence but I indicated that I would provide my reasons later. This I now do.
2. The accused is a young person aged 13 years old at the time of the offending. He is charged with two counts of sexual connections under section 58(1) and two counts of indecent assault under section 58(3) of the Crimes Act 2013.

Grounds of Challenge:

3. Counsel for the young person, Mr Alex Su’a challenged the admissibility of the cautioned statement on two common law grounds: (i) voluntariness and (ii) improperly obtained evidence.
4. The defense contested on the grounds that the police:

(i) Continued to interrogate or interview the young person in the absence of his mother;

(ii) The manner in which the young person was interrogated in the absence of the mother;

(iii) The overwhelming feeling of fear and worry experienced by the young person during the interrogation without his mother which lead to his admission of the allegations against him; and

(iv) The persistent interrogation of the young person by the police despite the continuous denial by the young person.

The Evidence:

5. The Prosecution called two witnesses, namely, Constable Valmarie Leala who interrogated the young person and obtained the cautioned statement and
   Constable Mataio Lemamea who witnessed the interrogation and the obtaining of the cautioned statement.

6. Constable Valmarie Leala gave evidence that:

• The interview started at 12.45pm on 22 February 2015, which was a Sunday;
• She introduced herself and Constable Mataio Lemamea;
• The young person’s mother was present throughout the interview;
• She read out to the young person his rights at 1.05pm. The young person fully understood and wanted to make a statement;
• At 1.37pm Constable Valmarie Leala took a bathroom break. The mother remained with the young person in the room.
• At 2.08pm the interrogation resumed
• At 2.13pm the mother asked that she go outside maybe then, her son, the young person would tell the truth. She never asked the mother to go outside;
• Constable Leala told the mother that she could go outside and that she would talk with her son but that nothing will be recorded until she comes back;
• The young person remained in the room with Constable Leala and Constable Mataio Lemamea;
• She only asked the young person if he was ‘ok’ and she continued talking with Constable Lemamea;
• Shortly after she asked the young person, the young person suddenly cried and said ‘e sa’o’ (it’s true).
• Constable Leala went and called the mother back in, she told the mother of what her son said ‘e sa’o’, she asked the young person when the mother was in the room and the young person said it was him who did it, she asked him what he did and the young person said he sucked the private parts of M.S and I.S;
• Mother was only outside for 7 minutes;
• Constable Leala then recorded the admission by the young person with the mother present on the computer.
• She read the statement out and asked the mother whether she wanted to have it read out again and the mother said ‘no’, it was then printed out and given to the mother and the young person to sign;
• The mother and young person at no time asked to have anything corrected when it was read out nor when it was given to them before they signed;
• Constable Leala said that there was never any threat issued nor that the young person at any time looked frightened or scared;
• Constable Mataio Lemamea was present throughout the whole interview and at no time did he leave and another police officer sat in.
• The whole interview was recorded in the presence of the mother and now appeared in the statement before the court.

7. Constable Mataio Lemamea basically confirmed the evidence of Constable
   Valmarie Leala and further said that:
   • He was present throughout the interview at Faleolo Police as the witnessing police officer. He signed the cautioned statement at the end with everyone present – Constable Leala, the mother and the young person;
   • The mother was present throughout;
   • There were two breaks during the interview, at 1.37pm and at 2.08pm when the mother asked to go outside;
   • The young person denied the allegations from the beginning of the interview up to the time the mother went outside;
   • At no time him or Constable Leala threatened the young person;
   • No other police officer was present or came in when the mother was outside;
   • Constable Leala did not interview the young person when the mother was outside. She only asked him once if he was ‘ok’;
   • The young person suddenly cried and said it was him who did it;
   • The mother was called back in and the interrogation continued;
   • Constable Leala read the statement out and the mother did not have any questions or corrections, statement was printed out and given to the mother and young person to sign, him and Constable Leala also signed.
8. The prosecution called two witnesses, the young person, F.G and his mother,
   G.F.

9. The young person, F.G gave evidence that :

• He confirmed that Constable Valmarie Leala introduced herself and Constable Mataio Lemamea at the beginning of the interview and the reason why he was being interviewed;
• He confirmed that his mother was present except when she went outside later on the interview;
• He confirmed that he was read his rights and he wanted to make a statement;
• He said that he was asked three times in the beginning by Constable Leala whether he committed the offences and he responded three times that he did not do it. This was recorded by Constable Leala on the computer but she later delete it when he made the admission;
• Constable Mataio Lemamea left the room during the interview and before the break that Constable Leala went out leaving just him and his mother;
• When Constable Leala came back in the room after the break she told his mother if she could go outside maybe that is the reason why he was not telling the truth was because she was there;
• Constable Lemamea never came back when he left before the break;
• He confirmed that his mother left the room and went outside;
• His mother was outside for a long time for about 30 minutes;
• It was only him and Constable Leala at the interviewing table when his mother went outside. It was then that Constable Leala touched him on the head (milimili lo’u ulu) and told him to speak the truth. He told her that he did not do anything but she still said to him to speak the truth. It was then that a big police officer named Henry came in, sat next to Constable Leala and stared at me.
• Police officer named Henry told me to look at him and asked me what happened. I told him I don’t know anything but he said to me that he would ask me one more time. I then cried and told him ‘yes’ as I was scared that he might beat me.
• He knew Henry because he is married to a girl from his village;
• Police officer Henry left and Constable Leala went outside and got my mother. My mother sat down and Constable Leala told my mother that I have said ‘yes’ and my mother cried. Not long after Constable Leala said the interview was finished.
• The statement was not read out to him and his mother. Constable Leala printed it out, gave it to him and his mother and she showed him where to sign and he signed.
• He confirmed his signature in the cautioned statement.
• He confirmed that his mother signed, Constable Leala signed but Constable Mataio Lemamea did not sign as he was not present when they signed.

10. The young person’s mother, G.F:

• Confirmed that she was present during the interviewing of her young son;
• The interview was conducted by Constable Valmarie Leala and recorded on computer. Constable Mataio Lemamea was also present in the beginning;
• She said that Constable Leala asked her son three times in the beginning of the interview whether he sucked the private parts of M.S and I.S and her son responded three times that he did not;
• Constable Leala then asked her if she could go outside as maybe that’s why her son was not talking was because she was present;
• She said she was outside for 20minutes when Constable Leala came and got her and when she sat down Constable Leala told her that her son had made the admission. Constable Leala then said that they would take a break.
• She said that her son made the alleged admission while she was outside.
• Constable Mataio Lemamea went out of the room before the break.
• She sat with her son in the room for about 30 minutes before Constable Leala came back in with another police officer not Constable Mataio Lemamea. This other police officer named Henry came in looking menacing (uiga saua) and told my son to look at him and to tell the truth. He asked my son whether he sucked the private parts of I.S and M.S. (sole pupula mai ou matatautala sao lou gutu, na e susuina le pi a I.S ma M.S?)- p.53 of transcript
• She said that she was present when Henry came in with constable Leala after the break.
• Constable Leala never said to her that anything said by her son (young person) while she was outside will not be recorded down;
• She said statement was not read out to them, Constable Leala recorded the rest of the interview when she went back in, printed it out, showed her son where to sign and only gave her the last page of the statement where all four names appeared and told her to sign where her name appears.
• She said that Constable Mataio Lemamea who left the interview did not sign when she and her son signed because he was not there.

The Law:

11. Where the admissibility of a confession made by an accused to the police is challenged on the ground that it was not voluntary, the position in Samoa has been that a confession is admissible if it was voluntary.
12. In Adams on Criminal Law – Evidence at ED4.03 the voluntariness rule is explained as follows:
    • The classic statement in relation to voluntariness is that of Lord Sumner in Ibrahim v R [1914] AC 599(PC) at p.609 that:

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority.

(See also Nansen v R (1971) NZLR 269.)

13. In The Queen v Shard Amad Ali [1999] NZCA 242 (referred to by Chief Justice Sapolu in Police v Su’a [2007] WSSC 85) Richardson P in delivering the judgment of New Zealand Court of Appeal at para [44] said:

“[44] At common law, no statement made by an accused is admissible unless it is affirmatively shown to have been made voluntarily. It has to be made voluntarily in the sense of not being made by fear of prejudice or hope of advantage exercised or held out by a person in authority; and also in the broader sense of being made in the exercise of the accused’s own free choice. As Dixon CJ said in R v McDermott (1948) 76 CLR 501:

“If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by which means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary.”

14. The Chief Justice in P v Su’a [2007] WSSC 85 further referred to Tofilau v The Queen [2007] HCA 59 where Gummow and Hayne JJ state that:

“...duress, intimidation, persistent importunity or sustained or undue insistence or pressure are all species of compulsion.”

15. The onus of proving that a confessional statement is voluntary is on the prosecution and the standard of proof is beyond reasonable doubt. (see: Police v Aotua Leilua [1998] WSSC 15 per Moran J; Police v Junior Sale [2000] WSSC 49 per Wilson J; Police v Tagaloa Runi Masame [2007] WSSC 66 per Chief Justice Sapolu ); proof beyond reasonable doubt is also the standard required in England (see: DPP v Pin Lin [1975] 3 All ER 175) and in New Zealand (see: R v McCuin [1982] 1 NZLR 13).
16. The common law rule of voluntariness is said to be qualified by section 18 of the Evidence Ordinance 1961 which is, a confession, whether obtained under a promise or threat or any other inducement (not being the exercise of violence or force or other form of compulsion) is admissible if the Court is satisfied that the means by which the confession was obtained were not in fact likely to cause an untrue admission of guilt to be made.
17. The test is simply whether the prosecution have proved that a statement made by an accused was voluntary in the sense that it was not made or obtained from the accused either because some person in authority exercised fear or prejudice or held out hope or advantage.
18. On the issue of unfairly obtained statements Turner J in R v Convery [1967] NZCA 37; [1968] NZLR 426 at 438 said:

“ The Court, in deciding whether a statement has been so unfairly obtained as to result in its rejection in the exercise of the Judge’s discretion, does not narrowly inquire whether the Judges’ Rules, or any of them, technically construed, have been broken in the course of the inquiry under review, but rather whether the course of the inquiry, as proved in evidence, makes it unjust that the statements should be received.”

The Judge continued:

“In answering this inquiry the Court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure in the generality of cases.”

19. In Police v Vailopa [2009] WSSC 69 Nelson J referred to R v Ali [1999] NZCA 292 where that Court at para.51 said:

“It is then a matter of looking at the totality of the police conduct. What is important is the overall question of the fairness of the police methods and the issue of fairness is determined by the Judge as a matter of judgment rather than by reference to the onus of proof.”

20. However, the Chief Justice in P v Tagaloa Runi Masame [2007] said:

“The Samoan courts have also, on the rare occasion, excluded a confession which, though voluntary, was unfairly obtained by the police from the accused. In doing so, the Samoan Courts were applying the decision of the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426 per Turner J at 438. Under the principle stated by Turner J, a confession may be excluded in the exercise of the Courts common law discretion on the ground that it was unfairly obtained.”

Discussion:

21. In the course of the evidence it became clear the grounds of challenge arose when the mother was not present as she had gone outside leaving the interviewing police officer Constable Valmarie Leala and the young person in the room. This was also confirmed by Counsel for the young person Mr Su’a in his verbal submissions to the court.

Q: Was there duress, intimidation, persistent importunity or sustained or undue insistence or pressure?

22. Defense Counsel submitted that the admission made by the young person when the mother was outside was not voluntary because the interviewing officer Constable Valmarie Leala persistently told the young person to tell or speak the truth. Furthermore, while the mother was still outside another police officer named Henry came in the room and said to the young person to tell the truth and that he will only ask him once. It was then that the young person made the admission because he was scared.
23. There is no doubt that the mother went outside and was not present when the young person allegedly made the admission. It is irrelevant whether she went outside on her own volition or was asked by Constable Valmarie Leala to go outside. It is also irrelevant how long the mother was outside whether 7 minutes, 20 minutes or 30 minutes. The question is, what happened in the room when the mother was outside? Did the young person continue to be interviewed in the absence of his mother?
24. I have seen and heard the young person give evidence in court and I find his evidence credible, coherent and more plausible than the mother whose evidence was disjointed and at times confusing. I accept the following evidence by the young person:
    • The young person never made an admission until the mother left the room to go outside. Constable Mataio Lemamea gave evidence that the young person denied the allegation in the beginning of the interview right up to when the mother went outside.
    • Constable Valmarie continued to interview the young person while the mother was outside. Constable Leala said she only asked the young person if he was ‘ok’. Constable Lemamea confirmed that Constable Leala only asked the young person if he was ‘ok’. The young person said that Constable Leala touched him on the head and persistently told him to tell or speak the truth. Constable Leala said all of a sudden the young person cried and said ‘it’s true’ (e sa’o). It raises the question of why the young person would all of a sudden cry if he was not under undue pressure or being threatened or being intimidated by someone or something.
    • The young person said another police officer named Henry came in the room stared at him and told him to tell the truth and that he would only ask him once. He then cried and made the admission.
    • The mother was not in the room when the police officer named Henry went in the room.
25. Even if no other police officer went in to the room and questioned the young person, the continuous and persistent interrogation by Constable Leala of the young person in the absence of the mother, placed undue pressure upon the young person, given the young person had denied the allegations all along.
26. The time the mother went back in the room and what took place in her absence is causally connected and shows the persistence on the part of the police for the young person to admit to the allegations. The way the question was asked and the timing makes it more a threat rather than a warning and places the young person under undue pressure.

F: Ua lelei F.G o le taimi nei ou te faailoa atu mo lou silafia e ono molia oe ile tulafono i lou tuuina mai o faamatalaga sese i leoleo ae e tatau lava ona e tautala saoia pe sa iai se mea na e faia.

T: Ia sa ou faia

27. In situations where involuntariness is argued, the issue for the courts is ultimately one of credibility, credibility of police witnesses as opposed to the credibility of the accused.
28. In Police v Su’a[2007] WSSC 85 the accused was interrogated for 9 hours went to sleep on a wooden chair at the police station and was continued to be interrogated the next morning for another 4 ½ hours. The Chief Justice held both cautioned statements made by the accused inadmissible as it was not made voluntary in the exercise of the accused own free choice. His Honour said:

“..given the length of time the accused was interrogated, the gravity of the allegation with which the accused was being questioned, the persistent nature of the questioning in spite of the continuing denials by the accused and the coercive nature of the environment in which the accused was in, there is no doubt that the accused was both physically and mentally very tired...”

His Honour continued:

“In the circumstances, it is clear that this statement was the inevitable result of the interrogation that had taken place the previous day and night.”

29. In the present case, the accused is 13 years old, the gravity of the allegation with which the young person was being questioned is found in its penalty being the maximum penalty of life imprisonment, the persistent nature of the questioning in spite of the continuing denials (even in the absence of the mother) and the coercive nature of the environment in which the young person was (being at a police station is scary and intimidating to a young person especially so if a parent is not present, raises a real question of voluntariness.
30. I find that the manner in which the interrogation of the young person was conducted in the absence of the mother amounted to persistent importunity (that is persistent and pressing questioning for an admission), or sustained or undue insistence or pressure. The part of the cautioned statement whereby the young person allegedly made the admission in the absence of the mother was not made voluntary. The next question then is whether s.18 of the Evidence Ordinance 1961 applies to admit the statement.
31. Section 18 applies only to admit a confessional statement made as a result of a promise or threat or any other inducement held out to or exercised upon the accused provided the other conditions in s.18 are satisfied. It does not apply to confessional statement made as a result of “the exercise of violence or force or other form of compulsion”.
32. The Chief Justice in P v Su’a [2007] WSSC 85 further referred to Tofilau v The Queen [2007] HCA 59 where Gummow and Hayne JJ state that:

“...duress, intimidation, persistent importunity or sustained or undue insistence or pressure are all species of compulsion.”

33. As I have said in paragraph 30, I find that the manner in which the interrogation of the young person was conducted in the absence of the mother amounted to persistent importunity (that is persistent and pressing questioning for an admission), or sustained or undue insistence or pressure. As s.18 expressly does not apply to a confessional statement obtained as a result of “the exercise of violence or force or other form of compulsion’, it follows that it does not apply to admit part of the cautioned statement by the young person that I find not voluntary.
34. Should I be wrong that the statement was involuntary, section 18 applies in that, a voluntary statement could nevertheless be excluded in the courts discretion if it was unfairly obtained or ‘obtained by improper or unfair methods.’ (see R v Ali [1999] NZCA 292). The Chief Justice in P v Tagaloa Runi Masame [2007] said:

“The Samoan courts have also, on the rare occasion, excluded a confession which, though voluntary, was unfairly obtained by the police from the accused. In doing so, the Samoan Courts were applying the decision of the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426 per Turner J at 438. Under the principle stated by Turner J, a confession may be excluded in the exercise of the Courts common law discretion on the ground that it was unfairly obtained.

35. The Prosecution submitted that a test of ‘likelihood of truth’ is to apply as is contained in s.18. Their submissions on this issue seemed to be a repeat of their submissions in the P v Vailopa (ibid) case. I agree with Nelson J in P v Vailopa (ibid), p4,[paras. 2 -3] on the issue of the ‘likelihood of truth’ test. I have come to the conclusion that s.18 does not apply to the circumstances of this case and therefore, such a test is not relevant.

Q: Was the statement by the young person unfairly and improperly obtained?

36. At page 5 of the cautioned statement the following is recorded:

2.13pm: Talosaga mai le tina ia Gafua Fiamalo mo se taimi e agai atu ai i fafo ae fa’atalanoa lona alo aua masalo e ala ona le tautala sa’o ona ole fefe ia te ia.

Leoleo: Ua lelei Fiamalo e le mafai ona fa’aauauina ona fa’amauina o le fa’amatalaga a lou alo se’i vagana ua e auai mai ae ua lelei o lea o le’a e aga’i atu i fafo mo sina taimi ae se’i ma talatalanoa ma le tama ae ou te fa’ailoa atu ou te le taina i lalo pe faamauina se taimi toe vala’au atu ma fa’ailoa atu ai loa ia te oe ona e toe susu mai lea i totonu ma o le’a fa’amauina ai loa i lalo. (my emphasis)

2.20pm: Toe aga’i mai le tina ia Fiamalo i totonu ma fa’ailoa ai loa le tulaga ua iai le talanoaga sa faia ma le o lo’o masalomia. (my emphasis)

37. Constable Leala confirmed in court that what is recorded on p.5 of the cautioned statement is what she said to the young person’s mother before the mother went outside. She was then asked as to whether that means she can still talk with the young person while the mother is outside and she said ‘very correct’ (sa’o lelei).
38. It is clear that Constable Valmarie Leala told the mother that she would talk with the young person but that nothing will be recorded without her being present. Mr Su’a rightly puts it that Constable Valmarie Leala should not and cannot interrogate and/or record anything the young person may say in the absence of his mother. That was the whole thrust of the decision in P v Vailopa [2009] WSSC 09 which has been adopted and is considered good police practice where young persons are being interviewed, they should only be interviewed in the presence of a parent, guardian, senior family member, caregiver or lawyer.
39. In P v Vailopa (supra) Justice Nelson held that one of the cautioned statements made by the young person was inadmissible on the ground that it was unfairly and improperly obtained because the young person was interviewed in the absence of his mother who was in another part of the police station at the time of the interview.
40. In P v Vailopa the whole interview was conducted without the presence of the mother. In the present case the mother was present except the time she went outside.
41. I find that Constable Valmarie Leala continued to interview the young person in the absence of the mother. On this ground, I find that the admission made by the young person in the absence of his mother is inadmissible.

Conclusion:

42. I rule that part of the cautioned statement which followed the alleged admission made by the young person in the absence of his mother is inadmissible. The inadmissible parts of the cautioned statement are on pages 5-7 of the cautioned statement.
43. The message that comes through very clear where young persons are involved with the law is that police should realize that young people are vulnerable and police must adopt practice and procedure that are geared towards the vulnerabilities of young people.

JUDGE MATA KELI TUATAGALOA