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R v Vaioleti [2006] TOLawRp 20; [2006] Tonga LR 217 (31 July 2006)

IN THE SUPREME COURT OF TONGA

R

v

Vaioleti

Supreme Court, Nuku'alofa
Ford J
CR 213/2004

26-28 July 2006; 31 July 2006

Criminal law – 16 year old accused – no parent at interview – admissibility of evidence

Evidence – 16 year old accused – no parent at interview – inadmissible evidence

The accused was charged with one count of unlawful entry into a building by night contrary to section 174 of the Criminal Offences Act. It was alleged that on the night of Thursday 9 September 2004 he was found without lawful justification in the house of the complainant at Haveluloto. There was a challenge to the admissibility of statements the accused had made to the police on the grounds that he was only 16 years of age at the time and he had wanted to have his mother present at the police interview but that did not happen. The arresting police constable was only 22 years of age and this was his first criminal investigation. He told the court that he had telephoned the accused's home and had been told that the mother was at a funeral. He said that he asked the accused whether he wanted to wait until after the funeral for his mother and the accused had replied that he wanted to finish the interview. The accused told the court in relation to the police interview that he had denied from the outset any involvement in the alleged offence and he only agreed to initial each of the answers the constable had written down in the record of interview because the constable had said that he would be released from custody that same evening as soon as the interview was completed. As it turned out, the accused was kept in custody until noon the following day.

Held:

1. When it came to any issue relating to the detention of a child, the court in the exercise of its discretion, was to be guided by the safeguards provided for in article 37 of the International Convention on the Rights of the Child. The accused had told the police constable that he wished to have his mother present for the interview. He was entitled to make that request and have it honoured. The police record of interview and supporting documents had not been given voluntarily and were, therefore, inadmissible under section 21 of the Evidence Act (Cap 15).

2. After analysing the evidence, the court expressed very real doubts about the complainant's alleged identification of the accused as the intruder and he was acquitted accordingly.

Statutes considered:

Criminal Offences Act (Cap 18)

Evidence Act (Cap 15)

Counsel for the Crown: Mr Sisifa
Counsel for the accused: Mr Fifita

Judgment

The charge

[1] At the end of this trial last Friday I acquitted and discharged the accused and indicated to counsel that I would give the reasons for my decision as soon as time permitted. I now do so.

[2] The accused was charged with one count of unlawful entry into a building by night contrary to section 174 of the Criminal Offences Act (Cap 18). It was alleged that on the night of Thursday 9 September 2004 he was found without lawful justification in the house of the complainant, Vika Langi, at Haveluloto.

The voir dire hearing

[3] There was a challenge made by defence counsel to the admissibility of all the police documentation and I heard evidence on this aspect of the case on the voir dire. I had no hesitation in upholding the challenge. The accused was only 16 years of age at the time. He was arrested without warning one month after the incident while he was playing pool with friends close to his home. None of his family were informed by the police of the arrest. They only learned of what had happened because the accused's four-year-old niece had witnessed the arrest and was able to tell her mother (the accused's sister) that Motesito had been taken away in a police car. The arresting constable was then only 22 years of age. The court was told that this was his first criminal investigation.

[4] When the constable began to interview the accused at 4:20 p.m. that same day, he very properly asked him whether he wished to have a lawyer or anyone from his home to assist him during the interview. The accused replied that he wanted to have his mother present. That exchange is recorded in question and answer No.1 in the record of interview. The next question and answer reads:

" 2. (The police constable) contacts Motesito Vaiolet's (the accused's) home and informs them of what he wanted as stated in his answer to question 1. (The police constable) continues on with the work upon Motesito Vaioleti. Did (sic) contact his home and it was said that his mother is attending a funeral at Makaunga, informed him of the situation and he agrees to continue on the work upon him.

Q. Motesito Vaioleti, do you agree to continue on with the legal work upon you?

A. Yes."

[5] The constable told the court that the accused had given him his home telephone number and when he telephoned the house someone had told him that the mother was at a funeral. He said that he then asked the accused whether he wanted to wait until after the funeral for his mother and the accused had replied that he wanted to finish the interview. On the face of the record of interview, it appeared that the constable had simply gone away for three or four minutes to make the phone call and had then returned and carried straight on with the interview. Such was not the case.

[6] What the accused told the court in relation to the interview was that he had denied from the outset any involvement in the alleged offence. He also denied having given any telephone number to the constable. The accused said that after he told the constable that he wanted to have his mother present, he was returned to his cell at the police station and kept in the cell for another three or four hours. As it was getting dark, the constable returned and told him that he had not been able to get hold of his mother because she was at a funeral but he was going to finish the work on him so that he could be released from custody. The accused said that he then agreed to initial each of the answers the constable had provided and had written down to the various questions contained in the record of interview. He said that he had co-operated in this way in the expectation that he would be released from custody that same evening as soon as the interview was completed. As it turned out, the accused was kept in custody until noon the following day.

[7] The constable was recalled to give further evidence. He admitted that there had been a 3 -- 4 hour gap in the interview which is not apparent from a perusal of the record of interview. He also admitted that the time gap ought to have been recorded. He was adamant, however, that he had telephoned the accused's home and that it was the accused who had supplied him with the home telephone number.

[8] The accused made other allegations during the voir dire hearing about three threats of violence made to him leading up to the interview by two other police constables one of which he identified as the countersigning officer. The countersigning officer denied the allegations but I did not find him a particularly convincing witness. The other officer who allegedly threatened to hit the accused with a stick or similar object, whose name was disclosed to the court, was not called to give evidence.

[9] As it turned out, it was unnecessary for me to have to make any firm finding on the allegations of threats of violence. As I indicated to Crown counsel, when it comes to any issue relating to the detention of a child, this court, in the exercise of its discretion, will be guided by the safeguards provided for in article 37 of the International Convention on the Rights of the Child. As noted earlier, at the time of his arrest, the accused was only 16 years of age. He told the police constable that he wished to have his mother present for the interview. He was entitled to make that request and have it honoured.

[10] I am satisfied that during the 3 -- 4 hour period when the accused was confined to his cell, the constable made no effort at all to contact the boy's mother. No telephone call was made to the accused's home. The subsequent unchallenged evidence called by the defence was that the family's telephone had been disconnected several years earlier and had been not reinstated until December 2005 -- more than 12 months after the incident. There was, in other words, no telephone at the house in September 2004. The constable simply kept the boy in the cells until darkness set in and then he persuaded him to carry on with the interview on the false pretext that he would then be released from custody and allowed to return home. There was no reason why the interview had to be rushed through and completed that same night. The constable could easily have waited until the accused's mother was available the following morning. After all, the boy was kept in custody until noon the following day. As I indicated to Crown counsel, it is disappointing to have to make such harsh findings against a police officer who has just completed his training for criminal investigation duties.

[11] It was for these reasons that I ruled that the police record of interview and supporting documents had not been given voluntarily and were, therefore, inadmissible under section 21 of the Evidence Act (Cap 15).

The Crown case

[12] After the voir dire hearing, the prosecution was left with only one witness, namely, the 38-year-old complainant. The witness told the court that she was asleep around 2 a.m. on the night in question when she was woken by someone bending over her face. She sat up and saw this person standing about 1 m away. She ran to the kitchen to call for help from a neighbour. She said that she knew the person as the son of Vai and Pala and she called out his name - "Motesito". She said that she could not see him properly in the bedroom because it was dark but the lights in the kitchen and living room were still on and as he ran towards the living room she could see him. She said that she identified him straight away as the accused.

[13] The complainant told how the intruder was naked when she saw him but he was holding onto his clothes. At one stage he picked up a glass tray from the sideboard in one of the bedrooms and threw it towards her but it missed her and smashed onto the floor. The complainant tried to wake her children but she was unable to get into their bedroom because the door was locked from the inside. Eventually, however, the children woke up and opened the door and about the same time the intruder ran off into the night.

[14] A layout of the house was produced. It showed the complainant's bedroom and four other bedrooms. The complainant said that her seven children aged between 13 and 5 years were all sleeping in one of the bedrooms and the other three bedrooms were unoccupied. The complainant was living apart from her husband at the time. It was later found that the intruder had entered the house by removing the louvers from a window in one of the empty bedroom windows.

[15] In cross-examination the complainant said that she knew the accused because he was a friend of one of her in-law's sons and he had been to her house on one occasion with the other boy and she had given them the task of making soup. She said that she also saw him often in the playground opposite her house playing touch rugby. She told Mr Fifita in cross-examination that she had no doubt at all from the outset that the accused was the intruder. The complainant explained that the accused's home was a long way from her home. From the witness box, she indicated a distance from the court which would perhaps be close to half a mile away.

The Saturday morning visit

[16] The complainant was also asked in cross-examination about a visit she made to the accused's home on the Saturday after the incident. As it turns out, the evidence relating to this visit became quite crucial and in the end it was determinative of the outcome of the case. The complainant's version of the visit was that she had gone over and had spoken to the accused's mother and told her about the intruder. The mother then asked her if it was her eldest son, Talite, and the complainant had replied, "no, it was Motesito." The mother then called the accused out of the house and the complainant said to him, "it's you."

[17] Quite properly, Mr Fifita put to the complainant the gist of the evidence he would be calling in relation to the visit and she promptly denied any proposition that conflicted with her version of events. One of the questions Mr Fifita put to the complainant related to what she told the accused's mother about her observations of the intruder's breath when he was bending over her. She denied having told the mother that he smelled of alcohol or drugs but she did admit telling the mother that the person who bent over her, "smelt nice".

[18] The accused's description of the complainant's visit to his home on the Saturday morning was quite different from that given by the complainant. What he told the court was confirmed completely by the evidence given by his older brother, Talite, his 27-year-old sister and his mother -- all of whom were impressive witnesses. What they told the court was that when the complainant came to their house on the Saturday morning, she did not "speak nicely" but she shouted out to the mother that her oldest son had entered her house during the night time. She said that he was drunk at the time. The mother then walked over and stood by the door and her eldest son, Talite, who had been lying on the couch went and stood beside her. The complainant then pointed directly at Talite and said that he was the person who had entered her home. She had then gone on to explain that the intruder had been naked and he was holding a cloth over his face and his clothes in his other hand and when he was bending over her she wasn't sure whether he wanted to kiss her or whether he was trying to identify who she was. She told the mother that his breath had smelt of alcohol or marijuana. The mother then told the complainant that her eldest son was a missionary for the Mormon Church and he did not drink or smoke but once again the complainant, who was standing only 2 or 3 meters away, pointed directly at Talite and identified him as the intruder.

[19] At that point the accused, who had been in the living room and had overheard the conversation between his mother and the complainant, walked out the front door to go somewhere and the complainant then turned around and pointed to him and said that he was the intruder. One of the points Mr Fifita made was that if the accused had, in fact, been the intruder then he would have either stayed hidden in the house or would have exited from one of the other two doors instead of walking out in front of the complainant. There is substance in that observation.

Conclusions

[20] As I have already indicated, I found the mother, the daughter and Talite particularly convincing witnesses and I accept their description of the events surrounding the Saturday morning visit. I reject the complainant's evidence on this aspect of the case.

[21] My conclusions on the evidence relating to the Saturday morning visit raise two fundamental issues. First, the issue of identification. The accused's older brother, Talite, who the complainant first identified when she visited the accused's home, bears no resemblance at all to the accused. The accused is a slightly built young man of medium height. Talite, who is now 25 years of age, is a tall, well built muscular man. He plays professional rugby in France and was returning to France the day after he gave evidence before me. There was no evidence of any significant changes to the physical appearances of either man in the period since the incident. The complainant's initial positive identification of Talite as the intruder, therefore, on the Saturday morning casts very real doubts on her alleged identification on the night of the incident of the accused as the intruder.

[22] The second issue that arises out of the evidence relating to the Saturday morning visit is simply one of credibility. There was a direct conflict between the complainant's evidence and that of the three witnesses called on behalf of the accused. I have rejected the complainant's evidence as to what took place during the visit. What she told the court was not the truth. If she was caught out on this aspect of the case, which is my finding, how can any reliance be placed on her uncorroborated evidence that she had been able to identify the intruder on the night in question as being the accused?

Order

[23] It was essentially for these reasons that I held at the end of the trial that the Crown had failed to establish the charge against the accused and he was acquitted accordingly.