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Regina v Baeoro [2010] SBHC 41; HCSI-CRC 308 of 2008 (22 June 2010)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)
Criminal Jurisdiction

Criminal Case No. 308 of 2008

REGINA

V

CHRIS BAEORO, PETER SIMON OLOI, ANDREW MABO AND MICHAEL WANMAN

Date of Hearing: 17 – 21 and 25 May 2010, and 15 June 2010
Date of Ruling: 22 June 2010

Robert Cavenagh and Wayn Ghemu for Chris Baeoro
Steven Barlow and Benhan Ifuto'o for Peter Simon Oloi
Anderson Kesaka for Andrew Mabo

RULING

Mwanesalua, J: Baeoro, Oloi, Mabo and Wanman are jointly charged with one count of murder, contrary to section 200 of the Penal Code. The case against them is that they murdered Frank Parahu (the deceased) on 16 December 2007 at Honiara, on Gudalcanal.

Their caution statements were recorded by the police during the investigation of the offence. These statements put them in the scene of the offence with certain admissions surrounding the death of the deceased. Each of them now challenges the admissibility of his statement in these proceedings. Although their grounds of challenge vary slightly, the two common ones being the voluntariness and fairness of the statements. They contend (1) that they did not give their statements voluntarity to the police and (2) that the court should exercise its discretion to exclude the statements even if they were found to be voluntary on the basis that there would be unfairness in their use against them in the trial.

I will begin by considering whether these three accused have given their statements voluntarily to the police, in the sense that they had given the statements on their own free will. I will then go on to determine the unfairness of each statement, if any, where that is relevant for each accused.

Baeoro alleges that he was beaten and mistreated by police officers before his statement was recorded by PC Poleita. Baeoro's evidence on these allegations is that he was arrested as a murder suspect by the police at 6am on 17 December 2007. He was then taken away and remanded in a cell at the Central Police Station. In the early afternoon of that day, two unknown police officers took him out from the cell for an interview in a room at the station. In the course of that interview, one of the police officers punched him all over his face repeatedly with his right fist. That police officer also slapped his mouth repeatedly, swore at him, and accused him of being a party to this murder case. Baeoro also alleges that the police officer squeezed a piece of paper and pushed it into his mouth. The police officers then returned him to the cell after doing all these to him.

I think those police officers may have been with Baeoro that afternoon. However, I have grave doubts about him being assaulted in the manner he has described in his evidence. The way he was assaulted, if genuine, would obviously cause very serious injuries to him, bearing in mind the repeated punches and slaps delivered all over his face and mouth were strong, and made by a police officer whom he described as being taller and bigger than himself. But despite these assaults on him, he said he merely had bleeding from his tongue.

PC Poleita who recorded a statement from Baeoro beginning from about 5.05pm, did not notice any injuries on Baeoro's body. Baeoro himself did not make any complaints to PC Poleita about the alleged assaults and mistreatment from the police officers. I reject Baeoro's claim that he was assaulted and mistreated by other police officers before PC Poleita recorded his statement.

Mr. Cavenagh raised other concerns on behalf of Baeoro, regarding the absence of the witnessing officer, on the right to legal representation during the interview and the non compliance with the provision of the Solomon Islands Judges Rules ("the Rules") by PC Poleita. Mr Barlow and Mr. Kesaka also raised the same concern regarding the breach of the Rules in respect of Oloi and Mabo. These concerns relate to the voluntariness and fairness of the statements.

PC Poleita recorded Baeoro's statement on 17 December 2007 after the police warning under the Rules. At the end of the statement Baeoro signed the statement by put his mark "x" at the end of each page. The statement was recorded in Pidgin, a language which Baeoro speaks fluently. Baeoro says in his testimony that PC Poleita did not make any threat, promise and inducement to obtain the statement. The burden of proving the voluntariness of the answers in the statement lies on the prosecution. I am satisfied beyond reasonable doubt that the answers which Baeoro gave in his statement were voluntary.

Oloi was a suspect in this case by early 2008. He was located at the Delite Bakery area at Ranadi on 28 January 2008 by PC Poleita and PC Isou. They took him to the Central Police Station for an interview and statement. This interview began at 7pm but was postpond at 7.25pm when Oloi became ill and taken to the Hospital. The Police took him back to the station after receiving treatment and spent the night there in a cell. PC Poleita completed the interview and statement from Oloi the next day. Oloi admitted slapping and kicking the deceased in his statement. Oloi's statement was also recorded in pidgin. Oloi challenges the admissibility of that statement on the grounds of voluntariness, lack of legal representation during the interview and unfairness of his statement.

The constitution does not provide a right to a lawyer by suspect during the interviewing stage in a criminal investigation. In R V Bina (HC of SI, Criminal Case No. 178 of 2004) Brown J stated (from page 3):

"There is no right to have a lawyer present in this country in the sense of a 'right' enshrined in the Constitution ("right to life", "Liberty" etc) nor does S.10(2) of the Constitution extend the "right" to "defend himself before the court in person or at his own expense by a legal representative at the interviewing stage. In this case then, the highest that the accused may put the fact of the absence of a lawyer at the interview stage is to suggest the court have regard to it as a consideration on the latter question of discretion to exclude in any event".

The police officers who picked Oloi up in a vehicle at Ranadi promised to drop him back after a short story with them. This did not eventuate because he was required to continue with his interview and statement the next day, which was lengthy, beginning from 7.48am to 2.03pm. The police officers who spoke to him before he was interviewed on 28 January 2008 told him that they were merely interested in Wanman, and that it would not matter for purposes of their enquiries for Oloi to say he kicked and slapped the deceased. As a result of that assurance Oloi made admissions in his statement. It is obvious that Oloi made the admissions as a result of that false undertaking. I rule that the statement of Oloi involuntary and is therefore excluded.

Mabo was located by the police at Ranadi on 1 February 2008. Sgt Foufaka told him that they wanted a short story from him. They took him to the Central Police Station where Sgt Foufaka told other officers in the office that "Mabo was one of them' implicating Mabo in this case. Sometime later that day, Sgt Foufaka, PC Poleita and PC Isou took Mabo to the scene of the crime. Sgt Foufaka told Mabo to look at the place so that he could recall the event. They then drove on to White River Police Post where Sgt Foufaka proceeded to record a statement from Mabo. Sgt Foufaka did not agree with the statement, so he squeezed the paper and threw it into a rubbish bin. They then returned to the Central Police Station where PC Poleita and PC Isou recorded a statement from Mabo which contain admissions.

Mr. Kesaka submitted that Mabo's statement was not voluntary because it was obtained by the police officers through threats, tricks, oppression and inducement. There is no evidence that PC Poleita and PC Isou used any threats, tricks, oppression or inducement to obtain the statement from Mabo. I find that Mabo made his statement voluntarily.

I now consider whether Baeoro and Mabo's statements should excluded on the basis of unfairness event though they were voluntarily given. In order to do that I must be satisfied that some unfair use has been of police power in obtaining the statements.

PC Poleita recorded Baeoro and Mabo's statements on 17 December 2007 and 1 February 2008 respectively. PC Poleita gave them the usual suspect interview warning provided under stage 2 of the Rules in pidgin.

However, PC Poleita completely omitted to comply with stage 3 of the Rules. That non compliance, meant that, Baeoro and Mabo never told PC Poleita that they agreed to give written statements; that they were not told of the option whether to remain silent or to give statements; they were not given the option to write their own statements; they did not authorize PC Poleita to write their statements for them; and that the statements were not read back to them after they were recorded.

I have earlier ruled these two statements to be voluntary. That would be a strong reason for admitting them even though the Rules were broken. But the court may refuse to admit them if it would be unfair to do so. In Shabadine Peat V. The Queen the court stated " (iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judge's Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary".

In view of the discretion in this proposition, I will rule the statements of Baeoro and Mabo inadmissible on the basis of unfairness for non compliance with stage 3 of the Rules. I rule accordingly.

THE COURT