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Regina v Keaviri [1997] SBHC 103; HCSI-CRC 20 of 1995 (27 June 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 20 of 1995

REGINA

-v-

NELSON KEAVIRI, JULIUS PALMER, PATRICK MARE KILATU, KETO HEBALA AND WILLIE ZOMORO

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 20 of 1995

Hearing: 23 June 1997
Judgment: 27th June 1997

R. Talasasa for Prosecution
A. G. H. Nori for First - Fourth Accused
G. Suri for Fifth Accused

JUDGMENT

MURIA, CJ: The four accused have challenged the admissibility of their caution statements which contained admissions by them of their part in the offence for which they now stand before this court.

In opening his clients’ case Mr. Nori relied on two grounds: firstly, that the caution statement had not been administered to each of the accused and even if it had been administered, it was done contrary to the Judges Rules, and secondly, the caution statements were obtained by force, threats and/or oppression. Each of the accused gave evidence on their own behalf on their challenge (the voir dire).

Burden and Standard of Proof

There are already clear authorities in this jurisdiction on the question of burden and standard of proof in a case where the admissibility of confession by an accused is in issue. I repeat what I said in Jane Tozaka -v- Hata Enterprises Limited Civ. Cas. 198 of 1996 regarding the need to develop our own case law by citing authorities from our own jurisdiction on principles of law that have already been firmly established by our courts. In Solomon Islands the voluntariness of a confessional statement (very often we refer to as caution statement in this country) when challenged is upon the prosecution who must establish that on usual standard of proof in a criminal case, that is proof beyond a reasonable doubt. See R -v- Peter fitali & Ors, CRC 39 of 1992 (HC) (a case involving four accused who were charged for murder) where this court had said:

“I shall consider the case against each of the accused on this voir dire. But before I do that I think it is necessary that I point out that the police evidence of confessional statements allegedly made by the accused having been challenged, it is for the prosecution to make me sure that those confessions were made by the accused and that they were made voluntarily. The prosecution bears the burden of proving that beyond reasonable doubt. If at the end I have a slight doubt, slight though it may be, I should exercise my discretion to exclude the confessional statement”.

This court in the present case will apply those principles and any doubt left in the mind of the court, must be resolved in favour of the accused. With that in mind, I now turn to consider the case against each of the accused on this voir dire. I shall adopt the order in which the accused were called in court.

Patrick Mare Kilatu

This accused gave evidence that he and Keto Hebala (co-accused) were taken by police from their village Olive to Munda on the morning of 5 April 1994 and then to Gizo, arriving in the evening of the same day. On arrival at Gizo, he and Hebala were taken to stay with the Provincial Police Commander (Western) Mr. Alenia, and his wife who, it was said, is related to the accused. He further stated that the next morning he and Hebala were taken to the Gizo Police Station and were taken together to the CID Office where they were seated back to back, him, facing Inspector Hage while Hebala, facing Police Constable Eria. The first thing he said happened was that Police Constable Eria showed him and Hebala, the statements made by Nelson Keaviri and Julius Palmer (the other co-accused). Kilatu denied giving any statement to Inspector Hage. According to him, Inspector Hage never explained the purpose of the interview to him and that no warning was given. He said that the story contained in the Caution Statement was made up by Inspector Hage although he signed the Caution Statement.

This accused denied giving his story to the police and insisted that Inspector Hage made up all that were stated in the Caution Statement. It is therefore necessary to decide first whether the accused did in fact give his story and written down by Inspector Hage or the whole Caution Statement was made up by Inspector Hage. If the Caution Statement was that given by the accused then the court will go on to consider whether the caution was administered to the accused before he gave his story to the police.

The prosecution evidence is that the accused was cautioned and that he willingly gave his story which Inspector Hage wrote down in an interview with the accused in the afternoon on 6 April 1994. The Caution Statement was signed by the accused, Inspector Hage and Police Constable Eria as witnessing officer. There was no force or threat made to the accused.

The record shows that the interview started at 1536 hours and ended at 1630 hours which was slightly under an hour. The accused said that he was interviewed in the morning not in the afternoon. Assuming that as he said, he was interviewed in the morning, this accused having been shown the other co-accused’s statements, sat there watching Inspector Hage writing down what he (the accused) said was a made up story and then signed it, not in one place but in four places on the Caution Statement. Firstly the accused signed after the caution, then after he agreed to give his story, then after the body of his story and finally after he confirmed that the police wrote and read the contents of his story to him. Asked in cross-examination why he signed the Caution Statement, the accused said that he signed because the police promised they would take him back home. He agreed that neither Inspector Hage nor Police Constable Eria assaulted or threatened to assault him.

There is one aspect of this accused’s evidence which rings a sounding bell to the court and it is this. Throughout his answers to Mr. Talasasa’s cross-examination, the accused kept saying that he was “interviewed” by Inspector in the morning. Whether be was interviewed in the morning or afternoon it is clear to this court that he was interviewed. It is therefore only logical to see the reason why he sat there watching Inspector Hage writing down the story on the paper which he later signed in four places. That story was that given by the accused during the interview mentioned.

On the question as to whether the interview was in the morning or afternoon, the evidence of Inspector Hage and Police Constable Eria must be preferred. The accused agreed he signed the Caution Statement which was recorded in writing to have started at 1536 hours and ended at 1630 hours on 6 April 1994. That contradicts his claim that he was interviewed in the morning on that date.

The inevitable conclusion is that the Caution Statement signed by the accused on 6 April 1994 was not made up by Inspector Hage but rather it was the Caution Statement of the accused recorded by the Inspector.

On the question of whether Inspector Hage and Police Constable Eria coerced the accused into giving his story through the showing of the Caution Statements of Nelson Keaviri and Julius Palmer, it will be worth nothing that the accused said that this was done in the morning when he and Hebala were brought into the office for interview. After they were shown the other co-accused’s statements, Inspector Hage and Police Constable Eria proceeded to make up their stories and put them down on papers and told the accused to sign. But the inevitable conclusion that I have already come to is that no such interview took place in the morning of 6 April 1994. The alleged showing of the Caution Statements to this accused and for that matter, Hebala could not have taken place that morning. We can assume that the showing of the co-accused’s Caution Statements to Kilatu and Hebala could have occurred in the morning and the interview was in the afternoon. But the accused’s evidence was that the showing of the Caution Statements was done at the time of the interview.

Again the accused’s evidence here did not hold together.

With regard to the administering of caution, I come to the final conclusion that in the afternoon on 6 April 1994, prior to the commencement of the interview the accused was explained to him the purpose of the interview, followed by the administering of the caution. The accused understood that and signed to signify it so. There was no such interview in the morning and not surprisingly, there was no caution administered in the morning. In that regard the accused was correct to say there was no caution given that morning. The fact is that there was no interview that morning because the interview was in the afternoon.

On the question of depriving the accused of his right to have access to a solicitor, I feel the evidence here is clear. The accused asked to see a solicitor. He was allowed to do so. He went to the office of Public Solicitor only to find that the solicitor was away. There was no evidence to suggest that thereafter the accused was prevented from seeing a solicitor. In fact the accused was living in Gizo for a month or so and there was opportunity to see solicitor. The only problem is that the solicitor was away. No blame could be thrown on the police in this regard.

With regard to the argument raised by the prosecution as why the accused did not complain to the Provincial Police Commander (W) with whom he was staying, I agree with Mr. Nori’s contention that it is not really natural to expect an accused person staying with the police ‘boss’ to complain to the boss about the other police officers misconduct. However on the evidence I do not find there was any misconduct on the part of inspector Hage or Police Constable Eria.

The evidence produced by the prosecution in this case is the one that is more convincing to the court and should be referred. I have the benefit of listening and watching the accused gave his evidence and I am not convinced that the allegations against the police has any of truth in them.

The onus is on the prosecution nevertheless and I am satisfied beyond reasonable doubt that the accused gave his caution statement to inspector Hage witnessed by Police Constable Eria in the afternoon of 6 April 1994. That caution statement was voluntarily given and it is admissible.

Keto Hebala

Much of what I have said with regard to Patrick Mare Kilatu applies to Keto Hebala. There is no need for me to repeat them here.

I need only add two matters regarding his evidence. Keto Hebala’s evidence. Keto Hebala’s evidence is that it was Police Constable Eria who showed him the Caution Statement of Nelson Keaviri and Julius Palmer and that it was Police Constable Eria who was writing down the statement on the paper while he (Hebala) was watching. When pressed in exam by Mr. Talasasa, the accused said that it was Inspector Hage who read out the introductory part of the interview to him. Ask again if Inspector Hage warned him about giving his story if he wish, the accused answered that he (Inspector Hage) did not warn him. Later when he was further cross-examined as to whether the caution was administered in the afternoon, he said it was Police Constable Eria’s statement not his.

It is obvious when one reads his evidence, this accused’s evidence in court does not hold together. Like Kilatu this accused is either confused or he is not telling the truth about sitting back to back at the interview, about the time of the interview, about the administering of the caution, and about the showing of the other co-accused’s caution statement to him.

Again when the prosecution evidence is placed along side this accused’s evidence, the prosecution evidence is overwhelmingly so convincing that this court is bound to accept the prosecution evidence, not so much because the prosecution witnesses are expert at giving evidence and this accused is an inexperienced young man, but because the evidence as presented to the court shows that the prosecution evidence is more coherent and convincing than that of the accused.

I accept the evidence of Inspector Hage and Police Constable Eria and I am satisfied beyond reasonable doubt that the caution statement of this accused was voluntarily obtained and is therefore admissible.

Julius Palmer

This accused was taken to Munda on 29 March 1994. He was taken from where he was working in the bush at Olive. He worked for Kalena Timber Company (KTC) at the time. He only had with him the clothes he was wearing at work. On the way to Munda, it was raining. On arrival he was placed in the charge office at first and later in the cell. He was later given food. It was toward midnight when he was taken out of the cell again for interview.

It is his case that although he was interviewed toward midnight, Inspector Hage did not caution him. He was arguing with Inspector Hage for about 30 minutes and while they were arguing, Inspector Hage was writing. When Inspector Hage finished writing, he told the accused to sign and that if the accused did not sign, he would continue to stay in the cell. Being afraid of being put back in the cell, he signed. Ask if he remembered the police officer who witnessed his interview, he said he could not remember.

In cross-examination this accused agreed that the introductory past of the interview was put to him except, he said the caution. However looking at the first page of the record of the caution statement, he clearly signed after the caution. Ask if his signatures on the caution statement were his usual signature, he agreed that, they were his usual signatures, having identified them.

The prosecution, evidence comes from Inspector Hage and Inspector Kalinamae. Both senior officers confirmed that the accused was cautioned before the interview. I do not see any reason to doubt what they said. These two officers did not deny that the accused was taken to Munda and later placed in the cell. They agreed that the accused was interviewed at 2310 hours and ended at 0010 hours a period of one hour. The reason for interviewing the accused that late was because they were interviewing the other accused before that.

Although the practice of interviewing suspects or accused late at night, particularly, past midnight must be discouraged, each case must depend on its own circumstances. In this case, the explanation offered together with the fact that the interview stopped shortly after midnight can be accepted.

The accused said that he did not give his story but that he was only arguing with Inspector Hage who in turn was writing down stories on the paper which he later signed in five places on the record of the caution statement. He agreed they were all his usual signatures.

Including the introductory part of the interview and the caution, this accused’s caution statement consists of 5 pages with details which show that they could not have been written down by Inspector Hage as a result of argument between himself and the accused for about 30 minutes.

The more I read the accused’s version of what he said happened and that given by Inspector Hage and Inspector Kalinamae the more I am convinced that there is a great deal of truth in the officers evidence. Only the accused knew what he did and the details of it and that was what he told the police.

I am satisfied beyond reasonable doubt that the accused having been cautioned gave his statement to the police willingly. He said he signed it because he was afraid of going back to the cell. Unfortunately the evidence does not point to such a conclusion and I reject it.

This accused’s caution statement was obtained voluntarily and it is therefore admissible.

Nelson Keaviri

This accused was the supervisor surveyor with KTC. He was taken to Munda on 29 March 1994 by police. He agreed he had some food before he was interviewed although he said it was already dark when they ate.

He agreed he was interviewed in Pidgin although he said the purpose of the interview was not explained to him nor was he cautioned. He agreed he signed the statement but like Julius Palmer, he signed because he was afraid of being put back in the cell. In addition however, this accused claimed that Inspector Hage wanted to slap him. This claim was denied by both Inspector Hage and Inspector Kalinamae

This accused also gave evidence and said that he did not give any story to Inspector Hage because he could not speak pidgin well and so all that were written on the paper were Inspector Hage’s own story.

On the claim that he did not know pidgin well, I am afraid this court cannot accept that. He had certainly written and signed two letters as supervisor surveyor both dated 18 October 1993 in English. He said the letters were not written by him. There is simply no evidence to show somebody else wrote the letters. The letters were in his name and he signed them.

This accused is certainly a person of reasonable standard of education. He earned the position of Supervisor Planning Surveyor in the company. He is a man of experience in his job. To claim not to understand what Inspector Hage was saying to him in pidgin when interviewing him cannot believed.

The truth is that this accused was interviewed by Inspector Hage and witnessed by Inspector Kalinamae. Having explained the purpose of the interview, he was cautioned before be gave his story. Like Julius Palmer, Keaviri signed his caution statement in five places on the paper with his usual signature. The suggestion that the statement he signed was made up by Inspector Hage cannot be accepted.

The evidence was so overwhelming that the only conclusion is that his story in his caution statement was his and it was voluntarily given. It is admissible.

Nature of Warning

I deal with the question of the nature of warning to be given to suspects when being interviewed.

In Solomon Islands the English Judges Rules have been replaced by the Judges Rules promulgated by the Chief Justice in 1982 which governed the practice to be followed when interviewing witnesses and suspects. As to the rule governing interviewing of suspects, I set out the relevant rule:

“(In English) If you wish to remain silent you may do so. If you wish to, you may give a written statement. You can write it or I will. That is up to you. If you do give a written statement it may be produced to a court if you go to court. Do you wish to given a written statement?”

“(In Pidgin) Sapos iu laek fo stap kwaet no moa iu save duim. Sapos iu laekem iu savve givem story belong in long paper. Iu savve raetem kam seleva o mi savve raetem. Hemi saed belong iu. Sapos iu givim wan fala stori long paper ia bae mifalla savve takem disfella paper long court for showum long court ia sapos iu go long court. Waswe, iu laek for givim stori belong iu long paper?”

In the present case the caution administered to these accused were basically similar and if I may take Kilatu’s Caution Statement as an example, it reads:

“Long side belong police me no forcem iu fo tellem anything but hemi side belong you for clearem side belong you long this fala case. Suppose you wantem you save givim story for police for writem for you, you save writem seleva too this fala story ia. This fala story ia save givim long court suppose you go long court. Waswe you meanim”.

When one compares the rule as I outlined with the warning given by the police to the accused one sees the obvious difference. There is a clear omission of the warning that the accused has a night to remain silent. This part of the warning is important in this country for three reasons. Firstly, it must be remembered that the our Judges Rules were made after 1978 and clearly the fundamental rights of a person suspected of a criminal offence as protected under the Constitution must be borne in mind. Secondly the right to seek legal assistance is also protected by the Constitution. Access to legal advice and assistance in this country is something that does not come easily in view of the limited manpower resources that we have. A suspect or an accused person must be given the opportunity to obtain legal advice or assistance. It is important therefore to advise a suspect of his right to remain silent in order that he been given the opportunity to make use of his constitutional right to seek the assistance of a lawyer. Thirdly, an accused person who is in official custody is in an environment which is not familiar to him. There may not be any threat or actual violence exerted upon him while in that custody. But the potential for such an occurrence in such an environment cannot be simply ignored as far as the person in custody is concerned. In such a situation he must still be given the opportunity to appreciate his right to remain silent despite being in such an unfamiliar environment.

It was the warning given to these accused upon which the fate of their caution statement now turns. The breach of the Rule as I see it in this case is not just a defect in the wording of the warning but a fundamental omission in the warning itself which has an impact on the fundamental rights of the accused to remain silent. The interviewing officer or authority must ensure that such a right should not be overlooked. It is both in the interest of the suspect or accused as well as the interviewing authority.

I make it clear that in the present case, I find that the accused were warned before they gave the caution statement. The caution statements were given voluntarily. There was no force or threat or oppression on the part of the police. The interview were conducted in a manner expected of an investigating officer. Inspector Hage had conducted the interviews in a manner that deserves no criticism. He had done an excellent job as witnessed by his witnessing officers Inspector Kalinamae and Police Constable Eria. All these officers had withstood hard but fair cross-examination from Mr. Nori of counsel for the accused. They had done the great task of bringing those who are suspected of committing a serious crime before the law. I commend those officers

This court however is required by law to ensure that the rights of an individual, including those accused of committing crimes are protected. This it will do by ensuring compliance with the rules and other legal provisions in this regard. In this case the provisions of the Judges Rules to which I have already referred had not been complied with. That non compliance in this case clearly offends section 10 of the Constitution and is therefore fundamental and as such it renders the caution statements though admissible taken in respect of each of these accused liable to be excluded in the exercise of the courts discretion.

That discretion I now exercise and I rule that the caution statement of each of these accused be excluded.

I so rule.

(GJB Muria)
Chief Justice