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Republic v Mouata [2001] KIHC 4; Criminal Case 11 of 2000 (10 January 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 11 of 2000

THE REPUBLIC

v.

TAABUI MOUATA

FOR THE REPUBLIC: Mr Tion Nabau
FOR THE ACCUSED: Mr Neil Allen

Date of Hearing: 8, 9 & 10 January 2001

JUDGMENT ON THE VOIR DIRE

At the outset of the trial the defence has raised the question of the voluntariness of a statement given under caution in the afternoon of the 11th May 2000 and a series of questions and answers that followed. I have heard evidence from the investigating officer Cpl Tekiau Kiareti and also evidence from Constable Mikaere Aree who assisted the investigating officer in the taking of the caution statement. There are several aspects as regards the arrest, detention and questioning of the accused that caused me great concern.

The accused was taken to the Bairiki police station in the early hours of Saturday 6th May at that stage simply to assist the police with their enquiries. While at the police station the investigating officer noticed spots of blood on the shorts of the accused, there and then forming the opinion that the accused’s involvement in the death of the deceased was considerably greater than he had at first thought and he informed the accused early on that Saturday morning that he was under arrest and that he would be placed in the cell. I regarded as relevant that at that time no caution was administered to the accused.

The accused was placed in the cell and kept there for the better part of the day. The evidence I have is that later on Saturday afternoon the accused was taken to the house of one of the Single Magistrate’s by the investigating officer. The investigating officer then went in to see the Single Magistrate with the intention of obtaining a warrant to remand the accused in custody. However the accused remained in the police car outside and it would appear that at no stage did the accused actually appear before the magistrate. The investigating officer had taken along with him a pre-prepared warrant. The magistrate took the document from him, signed it and gave it back. That warrant authorised the detention of the accused in custody at the Bairiki prison until 9 am the following Monday 8th May.

In contravention of that order the accused was kept initially in the cell at the Bairiki police station and later for some period in one of the cells at the Betio police station. This was done, says the investigating officer, in accordance with some bargain or agreement struck between him and the head warder at the Bairiki prison.

There is some confusion as to whether the accused was in fact taken before the Bairiki Magistrates’ Court on Monday 8th May at 9 am as originally ordered. It would seem clear from the evidence I have heard that he was not in fact taken before the Magistrates’ Court at the time. I have come to that conclusion because in fact at 9.05 am on Monday 8th May the accused was with the investigating officer at the Bairiki police station giving what is referred to as an open statement, a statement given without a caution being first administered. I understand that the taking of that open statement continued until about 10.30 on Monday morning so that it was physically impossible for the accused to have been both in the Bairiki Magistrates’ Court and the Bairiki police station at the same time.

I cannot be satisfied on the evidence before me that the remand warrant issued by the Single Magistrate on the Saturday 6th May was ever renewed. Despite several requests made by me to the prosecutor, Mr Nabau, the remand warrant has not been produced in court nor has any other evidence to support the investigating officer’s assertion that the accused was taken to court on 8th May.

I should say a little more about the taking of the open statement. The accused had been in custody for two days at that time. It is beyond belief that a corporal in the police force of 15 years’ experience could possibly think that it was appropriate to take a statement from an accused in custody without first administering a caution. The investigating officer testified that he had got nowhere with his enquiries to that point and it would appear he was desperate to get anything so much so that he was prepared to flout the rules and interview a suspect in detention without first administering a caution. It would seem from the evidence that in any event the open statement given did not contain any admissions and Mr Nabau does not seek to adduce the open statement as evidence in this trial. That does not mean that the taking of a statement is not relevant because in my view it is just one aspect, one unsatisfying aspect of a completely unsatisfying approach to the detention and interrogation of this accused.

There are two matters which I am being asked to decide. The first relates to the voluntariness of the caution statement and questions and answers. It is for the prosecution to satisfy me beyond reasonable doubt that in giving the statement and the answer to the questions on the 11th May the accused’s will was not overborne by some threat, promise or inducement. If however I am satisfied that the statement was given voluntarily Mr Allen for the defence urges me to exercise my discretion to exclude the statement and the answers to the questions because to allow that document into evidence would be manifestly unfair to the accused.

On the question of voluntariness. There are three matters that I regard as significant. The first and what I regard as by far the most serious matter are the conditions in which the accused was kept. We have evidence from Constable Mikaere to the effect that it is the policy of the Kiribati Police Force to remove from any accused person held in a police cell all items of clothing and that in the case of this accused he was left in the cell in his underwear. The apparent logic behind this is that if left to their own devices a prisoner in the prison cell might hang himself. It should be said that the door on the police cell in the Bairiki police station is made from bars and opens out into the general office of the police station. It is almost impossible for a prisoner in that cell to be out of the view of the officers in the general office which makes the treatment of the accused even more degrading in that not only was the accused forced to remain in his underwear but he was forced to remain in his underwear in full view of the general office. I regard the way in which the accused was held as degrading, barbaric and completely unnecessary and I would urge the Commissioner of Police to immediately review any such rule with a view to the appropriate care of persons held in police custody. This accused was held in those conditions for over five days. Two days after his arrest he was taken from the cell. He gave a statement without being cautioned first in which he denied involvement in the offence. The responsible police officer involved, the investigating officer, was to return the accused to his cell and to his previous existence in just his underwear.

Another three days followed. On the late afternoon of the 11th May the accused was again taken from his cell and asked again to provide a statement. On this occasion he was cautioned. The accused gives a brief, what is described as four lines, statement and then answers a series of questions. Question 9 is by far the most relevant and it is the only part of the answers to the questions that I have been made aware of. Question 9 which was asked of the accused in the Kiribati language, the translation of that question reads as follows: Before we continue further I think that you really should tell the truth to us whether you killed the person found dead on the early hours of Saturday 6th May or not.

Prior to that question the accused had, I’ve been informed, made two minor admissions in the cause of the caution statement in the earlier questions. After this question was asked apparently the floodgate opened and several significant damaging admissions were made.

Having regard to all of the circumstances I am of the view that the prosecution has not satisfied me to the required standard that the caution statement and answers given on the 11th May were given as an exercise of the accused’s free will. The accused was held in appalling circumstances. His denial of any involvement in the offence was met with him being simply returned to custody in the same conditions before.

When given another opportunity to give a statement he changes his story. In the circumstances (END OF TAPE) there is an equal chance that those admissions were made simply in a valiant effort to be released from the barbaric conditions that he was being subjected to, that there was an implicit threat that the accused would remain subject to those conditions until he provided answers to the police to their satisfaction. In my view the caution statement and the answers given to the questions on the 11th May are inadmissible. However if I am wrong I would still exercise my discretion to exclude the statement, questions and answers from evidence in this trial.

The accused was held unlawfully in custody, certainly beyond doubt from at least 6th May to the 8th May. No evidence had been put before me to suggest that anything was done to remedy that situation on the 8th May or any time subsequent. The only valid remand warrant that I have in my possession was issued by the Chief Justice when the accused was brought before this court on 2nd June and not only was there no valid warrant but the accused was being held in circumstances directly contrary to the order of the Single Magistrate. The Single Magistrate, I am advised, ordered that the accused be held in the Bairiki prison. It is not open to the investigating officer to change that order unilaterally. There are good reasons why the custody of an accused person is under the supervision of a person other than the investigating officer. That is to ensure that the rights of any accused person are properly protected. An accused person in custody is not to be held at the whim of the investigating officer so that I am satisfied that the period of custody while the accused was held in the police cell at Bairiki was unlawful and if it ever did become lawful that was not until he was taken to Bairiki prison following the giving of this caution statement on 11th May.

I am of the view that there was a deliberate attempt made by the investigating officer in this case to hold the accused in such circumstances and in such condition whereby his will would be overborne and that he would crack and give a confession and that conduct on the part of the investigating officer is completely inexcusable. I cannot in all conscience reward the police officer concerned by allowing into evidence the fruits of his conduct. So in conclusion I find I am not satisfied to the necessary standards that this statement was given voluntarily. However even if I had so found I would have declined to admit the caution statement, the questions and answers given on 11th May into evidence in exercise of my discretion.