Osifelo v Reginam [1995] SBCA 3; CA-CRAC 005 of 1995 (27 September 1995)

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KIRBY P: I am in agreement with Savage JA in respect of the disposition of the appeals of Mr Peter Fitali (Second Appellant) and Mr. Gegeo Maefasia (Third Appellant). I agree in the orders proposed in those appeals and with his Lordship’s reasons.

However in the appeal of Mr Fred Osifelo (First Appellant) I have reached a different conclusion from Savage JA which I understand to be agreed in by Palmer JA. Having regard to the fact that mine is a minority opinion, I have hesitated before expressing it. The trial was long and complex. It was conducted with great care and skill by the learned primary judge (Muria CJ). He was satisfied beyond reasonable doubt as to the voluntariness of Mr Osifelo’s caution statement. Having admitted it into evidence, he was satisfied beyond doubt as to his guilt of the crime of murder charged. However with hesitation and regret, as I adhere to that difference, it is my duty to express it and, in these reasons, to explain how it arises. In order to do this, I must retrace the facts as they concern Mr Osifelo.

First, it is important to remember that, in this case, there were no eye witnesses to the murder of the deceased. No body has ever been found. No weapons were ever recovered to implicate the accused. No forensic or other objective evidence was available to link any of the accused to the crime. The case against the accused did not even establish a clear motive for the killing, although it was suggested that it arose out of revenge for some past wrong done or imagined on the part of the deceased. None of these considerations is determinative. Murder and like serious crimes are often committed in secret. Bodies and weapons are frequently disposed of. Motives are often obscure. But the absence of such evidence requires that courts of trial and, on appeal, courts such as this, should scrutinize the prosecution evidence with particular care.

Secondly, in the case of Mr Osifelo, the evidence against him was substantially his caution statement. That is why the ruling at the conclusion of the voir dire challenge to the admissibility of his statement was crucial for the First Appellant. Once the caution statement was admitted, there was ample evidence which, if believed, would sustain the conviction of the accused. The absence of objective, external evidence (save for the confessional out of court statements of the co-accused which were also contested - to the extent that they could be used against Mr. Osifelo) made it particularly important in this case that the primary judge should scrutinize the caution statement with great care. It is clear from his ruling on the voir dire that Muria CJ understood this. This Court must apply a similar rigour to the performance of its task in the appeal.

Thirdly, decisions in many courts of the Commonwealth, with growing insistence in recent years, have re-inforced the long stated anxiety of the common law about the reception into evidence of confessional statements to police. This anxiety arises, in part, from the preference of the common law for “an once of real evidence” to an abundance of confessional statements. This preference dates back to the days of the Star Chamber when confessions were entracted by torture. It also arises as an encouragement by the courts to the collection by law enforcement agencies of objective evidence, where it is available, rather than confessions. In part, the reservations expressed by judges of high authority arise from the belief of the common law that persons in police custody, especially for long periods, may be prone to have their will eroded and their appreciation of their basic right to remain silent diminished, simply because they are in the unfamiliar and potentially threatening or frightening environment of official custody.

It is the recognition of these realities which lies behind the insistence of the common law that accused persons should be transferred, without undue delay following their arrest, from the custody of the Executive Branch of government (represented usually by police who are generally committed to securing a conviction if convinced of the accused’s guilt) to the independent Judicial Branch of government (represented by magistrates and judges) who will ensure that the accused’s rights are respected and a fair trial had.

In this jurisdiction, the common law has now been re-inforced by constitutional requirements. See Constitution, s 5(3). But it is important to remember the fundamental reason which lies behind this constitutional provision and its common law predecessor. People in official custody, especially for long periods, are at risk that their will be sapped and the exercise of their fundamental rights diminished, by the impact upon them of the unfamiliar and potentially oppressive environment in which they are held.

Fourthly, as a number of still more recent decisions of high authority around the Commonwealth show, cases do arise involving the acutal misuse of police authority to extract confessions from suspects by violence, threats, tricks and promises. Accused persons before, at and after trial frequently make allegations of such tactics against police. It is the common experience of courts, as Muria CJ observed, that accused persons often repent their confessions and wish that they had not made them when they realize fully the punishment which acceptance of the confession, following conviction, will bring. Yet the fact remains that accused persons are often at a serious disadvantage in contesting their confessions to police. Until recently there has been a general reluctance on the part of the judiciary to accept the proposition that police would falsify confessions or use unfair or oppressive conduct to extract them. Notorious cases in many other Commonwealth jurisdictions have lately made the courts more vigilant to prevent, so far as they can, the risk of conviction on unreliable confessional statements to police. It has led to a re-enforcement of earlier judicial statements about the authority of judges to reject confessions which are unsafe or unfairly procured. See eg. McDermott v The King (1948) 76 CLR 501. Today, in many Commonwealth jurisdictions, as a result of unfortunate experiences and grave miscarriages of justice proved to have arisen from the use of confessions later found to have been unsafe, judicial authority typically requires independent corroboration of the voluntariness, fairness and accuracy of confessional statements to police.

Confirmation may be provided, in cases of contest, by sound and even video recording of such confessions, by the taking of such confessions before judicial officers or other independent persons or the corroboration of the confession by other independent evidence. See comments of Palmer J in Regina v Ben Tofola SI Crim case 20/92, p4. But in the absence of such affirmative assurance of the voluntariness, fairness and accuracy of the alleged confession it will ordinarily be rejected, however apparently probative it might otherwise appear to be. This is not so much out of distrust of police or their methods of securing confessions, as because of the high store which our system of justice places upon the avoidance of the risks of a miscarriage of justice based upon confessions above. See McKinney and Judge v The Queen [1991] HCA 6; (1991) 171 CLR 468, 476. The more serious the crime, and hence the longer the potential deprivation of liberty following conviction, the more scrupulous will courts of trial, and of appeal, be to exclude confessional evidence which does not meet the high standards laid down by the judges.

A beneficial consequence of the line of authority to which I have referred, has been an improvement in police practice, a diminished reliance on confessions and the increased use of mechanical or electonic recording of such material to put the voluntariness, fairness and accuracy of caution statements beyond doubt. The Court must consider these developments in other countries in the context of the realities and possibilities of policing in Solomon Islands with their many remote outpost and limited resources. However, improvements in police resources will not be encouraged if this Court is less rigorous than other Commonwealth courts have been. The risk of an unsafe conviction is no more tolerable in Solomon Islands than in any other jurisdiction of the common law.

From these remarks of a general character I turn to the facts of the case of Mr. Osifelo. Having regard to the fact that Muria CJ rejected the allegations of force, pressure or threats on the part of police against Mr Osifelo, and taking into account the advantages which his Lordship had as the trial judge seeing the witnesses, I am content to approach the appeal accepting the foregoing findings of Muria CJ. The matter which concerns me can be dealt with, fully accepting the learned primary judge’s preference for the police evidence, and examining Mr Osifelo’s case within the four walls of the uncontested facts emerging from that evidence.

According to those facts, Mr Osifelo was arrested on 4 August 1992 at about 3 pm. It was not until 5 August 1992 that he was sent under escort from Auki (where no magistrate was available) to Atori. He was taken before a magistrate at Atori on 6 August 1992. I shall assume that this delay involved no breach of Constitution, s 5. Muria CJ so found. That finding has not been challenged in the appeal.

Mr. Osifelo remained in custody after the magistrate so remanded him right up to 11 August 1992 when he made the caution statement which is challenged in this appeal. I set aside the complaints of deprivation of food, cigarettes and betel nut made by the appellant, as these were also not accepted by the primary judge. I also set aside, for the purpose of my analysis, the complaint of Mr Osifelo that before the official interrogation began by police at 4.36 am on 11 August 1992, he had been interrogated by police from 7.00 pm on 10 August, being in handcuffs the whole time and denied rest. The evidence showed that for some hours before the cautioned statement was commenced, Mr Osifelo was being questioned in an informal way by police. But I shall assume that the formal cautioned interrogation began, as the police witnesses said at 4.36 am as 11 August 1992 and continued until 11.20 am on that day. This is an interval of a little less than 6 hours. That is already a very long interview. But the features of the interrogation that are of concern to me are

(1)	that it followed more than 6 days in police custody;
(2)	that it followed the “general interrogation” from about 11.20 pm on 10 August 1992;
(3)	that it occurred in the unfamiliar circumstances of a police station far from the accused’s home without access to his family, friends, advisors, still less legal counsel; and
(4)	that the actual cautioned interview began at 4.36 am, a most unusual hour to commence such an interview.

The police contended that Mr Osifelo, who had just been talking and joking with them, suddenly indicated that he wished to make a statement, and that, in effect, they had no option but to take it down as and when he volunteered it, a due caution having been given. Detective Constable Rifasia, the principal interrogator, stated that there had been a “general interrogation” of the accused from about 11.20 pm on 10 August 1992. This statement was accepted by Muria CJ (See Voir Dire Ruling, 9) It means that the entire interrogation, including the taking of the caution statement, took 12 hours, the caution statement itself taking up half that time.

The result is that, strictly within the prosecution case, there was continuos investigation for a very long time followed by a prolonged formal, cautioned interview commencing in the early hours of the morning. Viewed against the background of Mr Osifelo’s prolonged retention in police custody before the questioning process began on 10 August 1992, and with respect to those of a different view, I have concluded that the resulting confession must be excluded as unsafe. The circumstances of its taking cast doubt upon its voluntariness. Even if it was voluntary in the technical sense, it was extracted in circumstances that were unfair and enliven the judicial discretion to exclude the statement on that ground.

Sleep deprivation is a well established technique of eroding the will of the interrogated. I do not say, of course, that such technique was consciously used by the investigating police officers in interrogating Mr Osifelo and taking his caution statement. But the result of such an extended period in official custody, a questioning process beginning near midnight and a formal interrogation starting at 4.36 am, is not, in my view satisfactory - at least in the absence of objective confirmation that the resulting confession was voluntary, fairly obtained and accurate.

The Court enquired of the respondent whether the practice revealed in this case was common amongst police in Solomon Islands. It was recorded that the interrogation of Mr Osifelo by Detective Constable Rifasia was, in fact, the latter’s first major interrogation. I make allowance for his inexperience. Counsel for the respondent referred the Court to the unreported decision in R v Bara, SI Crim Case 19 of 1991. There, an interrogation commenced at 2.47 pm. It continued with many breaks until ultimately concluding at 3.56 am the following morning. However, there are important differences between Bara and this case. The commencing time was perfectly normal. There was clear proof of many breaks. The issue did not arise in a voir dire in Bara because the admissibility of the confession was not challenged. Here a challenge is certainly made. It must be determined in accordance with the legal principles which are defensive of the assurance of the voluntariness of all confession to police. In my opinion, against the background of facts which I have collected, entirely from the police evidence as accepted by the primary judge, I could regretfully not be satisfied that the cautioned statement which was then taken was voluntary. Alternatively, I would reject it as the ground that it was taken from the accused in circumstances which, viewed as a whole, were unfair. Most people, including in Solomon Islands, sleep during the early morning hours. Most are not used to engaging in serious and prolonged mental effort commencing before midnight and gathering pace at 4.36 am going on for a further six hours thereafter. In my respectful view, questioning, even of a general kind should not have commenced at 11.20 pm as found by Muria CJ. Cautioned questioning should not have begun at 4.36 am.

Once the cautioned statement signed by Mr Osifelo is excluded, there is no reliable evidence against him to sustain his conviction. That conviction must therefore be quashed.

First, during the hearing of the appeal, Counsel for Mr Osifelo sought leave of the Court to add a fresh ground of appeal to raise a constitutional objection to the conduct of the interrogation. See Rule 29 (2) Court of Appeal Rules. She relied upon s 7 of the Constitution which reads:

Very properly counsel for the respondent raised no objection to leave for the amendment being granted. As the first appellant had at all times objected, at the trial, and on appeal, to the admission of the caution statement and as the Constitution simply provided an alternative legal basis for this objection which presented no fresh factual issues, it seems appropriate to grant the application to add this ground. I would permit the amendment.

In view of the conclusion to which I have come by the application of ordinary principles of the common law, I do not regard it as necessary to deal with the constitutional argument. The application of s 7 must be approached on the footing that the complaints of the (first appellant of assaults, food and sleep deprivation are for this purpose rejected. There can be no doubt that, if it were established that an accused person in police custody were not only interviewed by police over the extended hours and at the times stated but were beaten, deprived of food, denied sleep and interviewed in handcuffs by many police, such conduct would be inhuman treatment within the constitutional prohibition. But I would also be inclined to consider commencing a cautioned interrogation at 4.36 am inhuman treatment in the case of an accused already in police custody for many days and unable to go anywhere because of the magistrate’s order remanding him in police custody. The matter must be viewed cumulatively. See Amaiu v. Commissioner of Corrective Services and State (1983, unreported PNG NC, N 417, 32f. However, I can leave the meaning of s. 7 of the Constitution to another case where it is necessary to decide it. The presence of the provision commits this country, and specifically its law enforcement officers, to performing their difficult duties with due regard to the essential dignity of every human being. That includes even an accused alleged to be guilty of a brutal murder. The constitutional instruction must be obeyed by all. It must be enforced, even in hard cases, by the Court.

Secondly, it is inevitable that an appellate court, faced by a quandary such as the present case presents, will ask itself the question. What is the proper general rule? In a sense this involves judges doing what Emmanuel Kant enjoined in moral philosophy - testing conclusions by what would happen if the standard in the particular case were accepted as generally applicable. In my view, it is undesirable that this Court should, in effect, sanction as an acceptable police practice the pattern and timing of the interview which occurred here. The police officers, and particularly those inexperienced in taking cautioned statements, should be left in no doubt that commencing formal statement recording at 4.36 am is not acceptable. There must be no belief that interrogation after sleep deprivation is acceptable in Solomon Islands, whatever the special circumstances. That would be a wholly unacceptable general rule. It re-inforces and confirms the conclusion to which I have arrived in disposing of this particular case.

Thirdly, it is true that the result of my order would be that Mr Osifelo, a person convicted of what Muria CJ found to be “an act of savagery and barbarism committed with the greatest and worst of all malice that the law can imagine”, would walk free. He would do so despite a recorded confession taken in a case of much difficulty by police officers who accepted his guilt and whose evidence convinced the judge trial who had the advantage of seeing and hearing all the evidence. To release into the community a person who might be guilty of such a brutal act would be a serious and grave step. However, if it is what the law requires this Court must so order.

Muria CJ fully reorganised this. By his order, he discharged one of the defendants at the trial, Mr John Itea. Despite Mr Itea’s admission in his caution statement that he had provided the fast outboard motor boat without which the crime could never have been committed and despite evidence that he had also provided the stones to weigh down the body of the deceased so it would sink in the sea, Mr Itea was acquitted because the Chief Justice applied to him the strict legal tests that our law requires.

So, in my view, it must be in the case of Mr Osifelo. If his caution statement was not shown to have been truly voluntary - or if it was obtained in circumstances that were unfair - it had by law to be excluded. Apart from that statement there was no other reliable evidence admissible against Mr Osifelo, except for out of court allegations of co-accused not independently and reliably confirmed. Thus, the evidence against Mr Osifelo depended upon his caution statement. Exclude it and his conviction must be set aside.

Court of Appeal of Solomon Islands

Osifelo v Reginam [1995] SBCA 3; CA-CRAC 005 of 1995 (27 September 1995)