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Regina v Keke [2005] SBHC 40; HCSI-CRC 254 of 2004 (25 February 2005)

HCSI-CRC 254 of 2004

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 254 of 2004

THE QUEEN

-v-

HAROLD KEKE, FRANCIS LELA AND RONNIE CAWA

(KABUI, J.).

Dates of Hearings: 11th, 17th, 18th, 21st, 22nd and 23rd February, 2005
Date of Ruling: 25th February, 2005

R. Barry and H. Kausimae for the Crown
J. Godbolt for Ronnie Cawa
M. Swift for Francis Lela

RULING

Kabui, ACJ. The third and second accused applied for an order of this Court that their respective Police statements given to the Police in their respective interviews in which confessions were made to the Police should be excluded on the ground that those confessions had been extracted from them without their willingness to volunteer those statements. The question of admissibility therefore arises for consideration in each case by this Court.

1. Admissibility of Ronnie Cawa’s confession to the Police.

The third accused in this trial, Ronnie Cawa, was interviewed by Detective Inspector Darren Folau of the New Zealand Police on the HMAS Manoora on 13th August 2003. Present throughout the interview was Station Sergeant Paul Green of the Australian Federal Police. The interview was conducted both in Pidgin English and English. Detective Inspector Darren Folau speaks Pidgin. The interview started at 10:37 am and finished at 2:57pm. There had been breaks in the course of the interview. The interview was recorded on three tapes. A transcript of the interview has been produced. The accused had allegedly said certain things in the course of the interview which implicate him in the death of Father Geve at Haliatu village on 20th August 2002 in the weather coast part of Guadalcanal Island. The accused now says that the statements he made in the course of his interview were not voluntary in that they were not made out of his own free will. The accused does not wish this Court to see them as admitted evidence against him in this trial. The accused wants this Court to throw them out so that they do not form part of the evidence against him. The accused had given evidence on oath to substantiate his claim against the Police Officer who interviewed him, some eighteen months ago. The process of finding out the truth or otherwise of the claim is conducting a trial within a trial or voire dire. This had been done in this case. The Crown called six witnesses and the accused gave evidence on his own.

The accused’s claim that his caution statements were not given on his own free will.

Counsel for the accused, Mr. Godbolt, advanced the accused’s case along the line that the statements obtained by the Police were not voluntary in nature. The reasons were that the Police induced him to do what he did because of promises of safety and humane treatment. Also, that the accused was not aware of the true nature of why the Police were speaking to him, coupled with the fact that he was effectively in detention. Furthermore, the circumstances he was in effectively prevented him from consulting a lawyer of his choice. Not only that, but the need for an independent interpreter was not fulfilled to his disadvantage. Lastly, the caution given was inadequate in the circumstances of his case. In his final submission, Mr. Godbolt, having stated the law on this issue, stated the facts given in evidence. The thrust of his argument was that the assurances given to Harold Keke and his men, including the accused in Mbiti village on 8th August 2003 stuck in the mind of the accused so as to be regarded as an inducement held out to the accused and other members of the Guadalcanal Liberation Front (GLF) by Mr. McDevitt. Mr. Godbolt said the assurances were in the form of guarantee of safety for Harold Keke and his men, being able to speak to the police about their grievances or any allegations against them, a police post to be set up at Mbiti village to ensure safety for Harold Keke’s people and that no attempts would be made to link any crimes with the surrender of guns. In other words, there was to be a gun amnesty. Mr. Godbolt argued that that fact, combined with the accused being on the HMAS Manoora on the 13th August 2003 in the presence of RAMSI military personnel and police officers and being interviewed for certain criminal offences without a lawyer and being told he was a suspect were enough to conclude that there had been inducement though not intended to be the case by Mr. McDevitt. Mr. Godbolt argued that there is no evidence to suggest that these assurances had been retracted. This, being the case, he argued, the statements he made to the Police in the interview conducted on 13th August 2003 must be excluded. Alternatively, Mr. Goldbolt argued that section 5(2) of the Constitution had been breached in that the accused had not been told of the reasons for his arrest and his detention and that being so, the statements the accused made to the Police must be excluded as being unlawful and must be treated as not being voluntary and therefore should be excluded.

The Judges' Rules.

A statement by an accused person is admissible only if that statement was voluntary in that it was not obtained from the accused person as a result of fear of prejudice or hope of some advantage held out by a person in authority. (See Ibrahim v. R. [1914] AC 599, cited at page 226 in A practical approach, EVIDENCE, by Peter Murphy, Fourth Edition, 1980). The vital question to be asked is whether or not the confession was obtained by expressed or implicit threat, promise or inducement offered by a person in authority. The Judges’ Rules came into practice in England in 1912, promulgated by the judges of the King’s Bench Division revised from time to time since then. The Judges’ Rules for Solomon Islands were made in 1981/82. These rules concern the arrest, detention and interrogation of suspects. They are rules of practice for the Police; they are not law. But they are important in guiding the Police in the process of interviewing suspects who are arrested or detained by the Police. These rules of practice for the Police are enforceable by the courts in that the courts may exclude from the evidence against the accused any confessions obtained by the Police which are tainted with elements of involuntariness. That is, the confession was not volunteered by the accused. It is a question of fact for the courts to establish whether any confession, when challenged, was obtained under the threat of prejudice, promise or inducement held out to the accused by any person in authority. In Australia, the High Court stated that the test is not to ask whether the police officer concerned had acted improperly, and if so, whether it would be unfair to reject the statement of the accused. But rather to ask whether in the light of the conduct of the police officer concerned and in all the circumstances of the case, it would be unfair to use the statement of the accused against the accused. (See R. v. Lee (1950) C L R 133 cited in Regina v. Moses Haitalemae, Simon Tohubo, Edwin Watenaomae Wahu and Saniel Awa, Criminal Case No. 210 of 2001). Lord Salmon, in DPP v. Ping Lin [1976] AC 574 at 606 said that the state of mind of the police officer doing the questioning is irrelevant in terms of controlling the question of whether the statement was made voluntarily or not. Whether the threat was gentle or promise or inducement was slight does not matter. His Lordship said it was the state of mind of the accused that mattered in deciding whether the statement being challenged was voluntary or not. The conduct of the police officer concerned together with the circumstances prevailing in any particular case were the things that would light up the mind of the trial judge so as to see which way the issue should be decided. The Crown must prove beyond reasonable doubt that the statement being challenged was made out of the accused's free will.

The interviewing officer's evidence.

The interviewing officer was a New Zealand officer who was able to speak Solomon Islands Pidgin English. He had been with the RSIP under a New Zealand Aid Project before the arrival of RAMSI in 2003. He was on the HAMS Manoora when he conducted the interview with the accused. The HMAS Manoora then was in the Weather Coast area of Guadalcanal near Mbiti village. He left Honiara on 12th August 2003 and conducted the interview the next day, 13th August 2003. He did not know the accused until he introduced himself to Ronnie Cawa on board the HMAS Manoora that morning just before the interview commenced. The accused agreed to the interview but it did not commence until 10:37 am. The accused was sea sick and there was a little delay. The interview was in the form of questions and answers. The interview was suspended for one minute at 10:41 and recommenced at 10:42. Again the interview was suspended at 10:48 to enable the interviewing officer to find a lawyer, if possible. The interview recommenced at 11:40 after the accused agreed that he could continue without a lawyer. The interview was suspended at 12:14 for lunch. It recommenced at 1:01pm but suspended immediately one minute later to change the tape. It recommenced at 1:03 and then suspended at 1:45. It recommenced at 2:00pm and suspended immediately to change the tape. It recommenced at 2:05 and then suspended at 2:13. It recommended at 2:47 and again suspended at 2:50. It concluded at 2:57. There was no caution administered to the accused immediately before he began to talk on the recording machine regarding the death of Father Geve. The whole interview was being conducted in the presence of Station Sergeant Paul Green of the Australian Federal Police in the interview room on board the HMAS Manoora away from where Harold Keke was staying on board.

The accused's evidence.

The accused's version of facts is however not that different from Inspector Folau's recall of events surrounding the interview. He said that his understanding following the meeting with Nick Warner and Ben McDermit on 8th August 2003 at Biti village was that if members of the GLF surrendered their guns, peace would come back and things would be sorted out. The accused went on board the HMAS Manoora on 13th August 2003 because his uncle, Harold Keke, wanted him to go with him as well together with others. Harold Keke was then under arrest because a warrant of arrest had been issued for his arrest. The accused became a suspect only whilst he was on board the HMAS Manoora. That is, he was a person in whom the RAMSI Police on board the HMAS Manoora were interested. Inspector Folau said that the purpose of going to the Weather Coast was to speak to people who might be the subject matter of investigation. He said the death of Father Geve was one of the matters for investigation. He said he had been briefed on other matters as well. He said he was a member of a team of investigators on board the HMAS Manoora. The whole interview was recorded on a tape recorder. The accused in his evidence did not dispute the answers he gave to questions asked of him during the interview he had with Inspector Folau on 13th August 2003 but he insisted that he did that because Inspector Folau had insisted before the interview started that he wanted to know about the accused’s problem and that of his people on the Weather Coast and that he wanted to help them. He maintained this stand on this issue throughout his cross-examination. Implicit in his stand is the proposition that he misunderstood the true purpose of the interview he had with Inspector Folau on 13th August 2003 in that he was not expecting any criminal charges to be laid against him. Inspector Folau said that he met the accused for the first time when he was assigned to interview him on board the HMAS Manoora. He said he told the accused who he was and invited him to the interview. He told the accused that he wanted to talk to him about certain matters. He said the accused agreed. He said the accused appeared to be happy and enthusiastic and wanting to talk. In cross-examination, the accused agreed that Inspector Folau had treated him well during the interview except that before the interview started Inspector Folau had insisted that the accused tell him about his problems and that of his people and he would help them. There is therefore nothing to suggest that any threat either physical or expressed was used against the accused to tell his story to Inspector Folau. There is also no evidence of any promise or inducement held out by Inspector Folau or Station Sergeant Paul Green to extract a confession from the accused on board the HMAS Manoora. In cross-examination, Inspector Folau stressed that he had no authority to promise anything to the accused. He was simply following his brief given to him that morning and that was to interview the accused. If that was the case, then no inducement would have been possible. If there is anything at all, the inducement must have been what the accused called Inspector Folau's insistence to speak to him about his problem and that of his people and to help them. According to the accused, that insistence on the part of Inspector Folau had been expressed to the accused before the tape recorder was activated. Inspector Folau was not asked to confirm or deny this on being cross-examined. Clearly, the accused's words stand alone on this. It is however possible that Inspector Folau might have said what the accused said Inspector Folau said. If it had been the case that Inspector Folau had made the pre-taping remarks, what would then be the case or so what? Inspector Folau was not familiar with the accused but he knew he was to talk to the accused about the problem in the Weather Coast of which the accused was a part. It would have been legitimate for him to say that he wanted to talk to the accused about the problem affecting the accused and his people and to help them get out of it. The accused in his evidence did not specify what he understood Inspector Folau's insistence to mean to him or how it affected his mind or thinking. The accused however was later cautioned and told not to say anything if he did not wish to do so. The accused agreed to speak during the interview willingly. This was clearly apparent when the taped interview was played in Court. His voice was consistent, clear and confident. It is pertinent to note that the accused in his evidence said that his understanding of Mr. McDevitt's talk on 8th August 2003 was that if the GLF surrendered their guns, they would talk and iron out their differences and everything should be over. He said he did not expect criminal charges to be laid against him. It is also pertinent to note that the accused, having said that in evidence, did not say that he agreed to talk in the police interview because of the guarantee Mr. McDevitt told them about in the meeting on 8th August 2003, especially the gun amnesty. What prompted him to talk in the interview was Inspector Folau's insistence to talk about his problem and that of his people and to help them. He gave that same answer repeatedly on being cross-examined by Mr. Barry. Never did he say that he had in the back of his mind what Mr. McDevitt had told them at the meeting at Mbiti village and so he agreed to talk in the interview. The statements made by Mr. McDevitt cannot possibly be regarded as producing an inducement in the mind of the accused. He did not say he agreed to talk in the interview because of the gun amnesty extended to them. That is not his evidence about his interview with Inspector Folau on the HMAS Manoora. That argument fails. The person in authority for the purpose of the interview was Inspector Folau and Station Sergeant Green and not Mr. MeDevitt or Mr. Warner in this context.

Breach of section 5(2) of the Constitution.

The focus of attention in the meeting at Mbiti village was Harold Keke because he was the leader of the GLF. The accused was not the focus although he spoke at the meeting. His going to the HMAS Manoora was by invitation of Harold Keke. Harold Keke is the uncle of the accused and Harold Keke wanted the accused to accompany him to the HMAS Manoora. The accused went on board the HMAS Manoora voluntarily. He was not being arrested or detained at that point. At least, he was not told that he was under arrest or being put in detention. He was simply part of Harold Keke’s party on board the HMAS Manoora. His status began to change when Inspector Folau told him that he was to be interviewed. He was placed in another room for that purpose. After the interview concluded, he was returned to his room downstairs. The HMAS Manoora arrived back in Honiara on 14th August 2003 and anchored off the Red Beach. The accused was later charged that morning on shore for two offences and appeared briefly before a magistrate. The accused was then remanded in custody. In terms of section 10(1) of the Criminal Procedure Code Act (Cap.7), voluntary submission to police custody by word or action by a person is an arrest. However, there is no evidence in this case to suggest that Inspector Folau or any other police officer had told the accused the reason for his arrest and detention on board the HMAS Manoora. The fact of the matter was that the members of Harold Keke’s party including the accused were all on board the HMAS Manoora. Harold Keke and the accused were clearly in the custody of the police on board the HMAS Manoora until they landed ashore at Red Beach and produced before a magistrate.

The effect of non-compliance with section 5(2) of the Constitution.

The omission to explain the reason for the accused’s arrest and detention on the HMAS Manoora appears to be contrary to section 5(2) of the Constitution. He was under arrest at the point he was told of the interview and being interviewed. No one can be arrested unless upon reasonable suspicion that he or she has committed an offence known to the law. According to Inspector Folau, he had read the relevant materials about the investigation into matters which happened in the Weather Coast. Superintendent Stafford did say in his evidence that they had with them the case files and had gone through them before the accused was interviewed. Obviously, the accused was a suspect in the murder of Father Geve. This was the reason why the Police were interested in him on his arrival on the HMAS Manoora. The lack of explaining to the accused the reason for his arrest and detention would appear to be unconstitutional in terms of section 5(2) of the Constitution. As regards the provision of a lawyer on board the HMAS Manoora during the interview, section 10(2) of the Constitution does not seem to apply in that subsection 2 only applies at the point of being charged with an offence. There is no evidence to suggest that the accused was charged for any offence whilst on board the HMAS Mannora. He was later charged on shore at Red Beach. In any case, an attempt had been made by Inspector Folau to contact a lawyer in Honiara but to no avail and the accused was duly told of the fact of no lawyer being available to him at the interview. Whilst it is not disputed that there could be cases where non-compliance with the provisions of the Constitution may attract the exclusion of a police statement, the final say remains within the discretion of the trial judge. The Papua New Guinea case cited by His Lordship, Palmer J., (as he then was) in Billy Gatu v. Regina, Criminal Case No. 93 of 1993 was a constitutional reference for an advisory opinion. It serves as a guide only. But the point is that non-compliance per se with a constitutional provision is no reason for the exclusion of a police statement. In the case of the Constitution of Solomon Islands, the sanction for any breach of any constitutional rights and freedoms is section 18 (damages) of the Constitution. The sanction, likewise for any contraventions of other constitutional interests other that fundamental rights and freedoms in Chapter 2 of the Constitution, is section 83 (declarations) of the Constitution. (See Regina v. John Tana, Augustine Namona, Thomas Talikana and Napthali Napiabo, Criminal Case No. 175 of 2002). There is no need to add to the relief already provided in the Constitution by equating the breach of the Judges' Rules with breach of the Constitution, although the advisory opinion of the Supreme Court of Papua New Guinea on the constitutional reference seems to allow for that argument to be advanced. In fact, even in common law, the fact the Police had breached the Judges' Rules does not necessarily result in the exclusion of a police statement. The case in point is R. v. Prager [1972] 1 WLR 260, where the appellant had been charged with a serious offence and interviewed without caution. The trial judge held that the resulting confession was voluntary notwithstanding the breach of rule 2 of the Judges’ Rules. An appeal to the Court of Appeal on this point was dismissed. The Court of Appeal concluded that notwithstanding the breach of rule 2 of the Judges’ Rules, the trial judge had established the voluntary nature of the confession made by the appellant. The same position was affirmed by the House of Lords in R. v. Sang [1979] 2 All E.R.1222. I think the reason for taking such a stand under any Constitution is the need to maintain the balance between fairness to the accused person against the law enforcement apparatus of the State such as the Police and the need to ensure that criminals are investigated, arrested, charged and tried by a court of law for the sake of maintenance of law and order in society. That is why the Judges’ Rules do not assume the status of law but a guide to the police for their difficult work of investigating crime in society.

Conclusion.

I find that that the interview conducted on 13th August 2003 on board the HMAS Manoora by Inspector Folau in the presence of Station Sergeant Green had been voluntarily agreed to by the accused and the statements he made in that interview had been made of his own free will. The fact that section 5(2) of the Constitution had been breached is no bar to admitting the accused’s statements in the interview to be part of the evidence in this trial for the same reason that the interview and been agreed to by the accused and that the statements made therein by the accused were voluntarily made by him. I find that the allegation the accused made against Inspector Folau that he was willing to participate in the interview only because Inspector Folau had insisted to talk to him about his problems and that of his people and that he would help them is self-serving and is not true. Inspector Folau had not been cross-examined on this point. Even if it was true, it was of no consequence because the accused had been cautioned not to say anything if he did not wish to say anything. Whilst it is true that no caution was given before questions were asked about the death of Father Geve, it is of no consequence also because the accused had been cautioned before the interview commenced. The fact that the taped recorded interview had not been played back to him cannot remove the conclusion that the statements in the interview had been made voluntarily. Even if it could be argued that the accused should have been specifically cautioned before questions were asked about the death of Father Geve, its omission is not fatal in this case in that I have already found that the statements made by the accused in the interview were voluntary in nature and cannot be impugned. I am satisfied beyond reasonable doubt that the interview and the statements recorded therein were voluntary. The accused's application to exclude his police statements is refused. The interview record containing the statements of the accused is hereby admitted in this trial.

2. Admissibility of Francis Lela’s confession to the Police.

The second accused, Francis Lela, has also challenged the admissibility of the statements he made to the Police at Kolina village on 2nd October 2003, at the Central Police Station in Honiara and to the Police at the Iron Bottom Sound premises. The challenge is on the basis that the confession had been made as a result of promises and inducement held out to the accused and therefore the statements were not voluntarily given by the accused. In her final submission, his Counsel, Miss Swift, referred to incidents which she said would amount to inducement held out to the accused by Superintendent Stafford of the Australian Federal Police. She cited the talk by Superintendent Stafford to the villagers at Kolina village on 2nd October 2003 re-assuring them that the boys who had been taken earlier to Honiara were being looked after by RAMSI and that they were in school or something to that effect. She also cited a little later, that the villagers were told that the boys including the accused were going to Honiara to straighten a few things out and then would return home or something to that effect. The villagers were told not worry. She also cited a later incident where Superintendent Stafford told the accused and his other three friends that they would be retrained, educated and looked after whilst in Honiara. In fact, they were told that they would be staying with Harold Keke at the Guadalcanal Beach Resort. The other incident of inducement, though general in nature, was the accused's belief that his coming to Kolina was part of the peace process initiated by Mr. Warner and Mr. McDevitt and therefore was obliged to attend at Kolina village on 2nd October 2003. On the occasion of surrender of guns, the accused heard from Mr. Warner and Mr. McDevitt that no investigation would carried out on the guns, and as part of the peace process, no criminal charges would be laid. Miss Swift said that the accused had been interviewed three times the same day, the first time at Kolina in the Weather Coast, the second, in the Central Police Station and third and final time was in the Iron Bottom Sound premises. The general thrust of the points raised by Miss Swift on behalf of the accused is that in the general context of the circumstances prevailing at that time on the Weather Coast, the peace process as explained by Mr. McDevitt plus talks by Superintendent Stafford had induced the accused to give an interview to the Police and thus affected his free will to make voluntary statements to the Police. Lastly, Miss Swift argued that the fact that the accused was not told of the reason for his arrest and detention was contrary to section 5(2) of the Constitution and therefore unconstitutional.

The interviewing officer's evidence.

The interviewing officer was Station Sergeant Magness of the Australian Federal Police. He was a member of a small group of expatriate police officers who arrived at Kolina village on 2nd October 2003. He met the accused at about 9am. He spoke to the accused and introduced himself. The interview commenced at 9:53am. The interpreter was Sergeant Toaki of RSIP. The interview was taped on a tape recorder operated by the interviewing officer. The interview concluded at 10:27am. The accused was allowed to see his family and then accompanied the police officers to the beach at Kolina where they were picked up by helicopter and headed for Honiara. The helicopter arrived at about 3:10pm whereupon the accused was taken to the Central Police Station in Honiara. The accused was given lunch before the second interview commenced at 4:18pm in the Central Police Station. The interview was again tape- recorded. It concluded at about 4:30pm. Mr. Ken Averre of the Public Solicitor’s Office was contacted and he came to see the accused at the Central Police Station. It was then agreed that the interview was to be continued at the Iron Bottom Sound premises where the Special Co-ordinator's office was located.

That interview was conducted in the presence of Mr. Averre of the Public Solicitor's Office in Honiara. The accused was cautioned and then agreed to talk on a tape recorder. Transcripts of these interviews have been produced.

The conduct of the interviews.

According to Mr. Stafford, the attendance of the accused with three others at Kolina being a neutral zone on 2nd October 2002 had been agreed before on a Thursday. He had spoken to the GLF leadership then and told them that he was interested in four named persons and that he would come back for them later. He said he had held a series of meetings with GLF members and told them that persons in whom he was interested in would go to Honiara. He did not know whether the accused was at any of those meetings. Their going there was for the purpose of talking to persons in whom the PPF was interested. In that regard, the accused was a suspect. He introduced the four of them to Station Sergeant Magness of the Australia Federal Police. The other three persons they were interested in to talk to were Andrew Hese, Billy Kelikei and someone called Isa. Effectively, the accused was under arrest just before his interview and during his interview and then invited to accompany the Police officers to Kolina beach to wait for a helicopter to pick them up to go to Honiara. On arrival, the accused with the other three were put into a bus and taken to the Central Police Station. The interview at the Central Police Station was incomplete. It recommenced in the Iron Bottom Sound premises at 7:31 pm and concluded at 10:28 pm. The interview conducted in the Iron Bottom Sound premises was the longest one of the three interviews but in the presence his solicitor, Mr. Averre, of the Public Solicitor’s Office in Honiara.

The alleged inducements.

As put by Miss Swift, the specific inducements came from Superintendent Stafford on two occasions which she cited. In his evidence in chief, the accused said-

"...Stafford spoke to a group of people about other boys who had gone to Honiara that they were being looked after and educated. He told the 4 of us that same promise. This promise was made at 9-10am after interview. After interview, we were ready to go to Kolina. He said that we were going to school etc. When I heard that it was new to me. When he mentioned schools, I wanted to go to school. That is why we agreed to tell our story to the police..."

The accused said-

"...They told us that we would be away but not for long..."

Before the interview, the accused said-

"...They told me that they would take my story from me and then to take us to Honiara. They said when we reached Honiara, they would ask us and then return us to Weather Coast..."

It is not alleged that inducements had been held out to the accused by the interviewing officer, Station Sergeant Magness or Sergeant Toaki, the interpreter of Pidgin into English and vice versa. Superintendent Stafford spoke to the members of the accused's family and took some photographs. He agreed that he spoke to the people at Kolina about co-operation in the peace process. He agreed that he told the accused and other boys about Rove prison and the training of inmates in response to a question from the boys or one of them. He categorically denied under cross-examination that he used the words, "don’t worry, we will take them and return them later" or something to that effect. He denied telling the accused and his three friends that they were going to the Red Beach and not to Rove. He denied telling the accused and his friends that RAMSI would send them to school to learn carpentry etc but what he did say was that RAMSI would look after them until they went the Central Police Station. Station Sergeant Magness did recall that Superintendent Stafford spoke to the people but he could not recall what was being said. Sergeant Toaki also recalled Superintendent Stafford giving a brief talk to the people. He said that he did not interpret Superintendent Stafford’s talk. It was done by a member of the GLF. He said he heard Superintendent Stafford saying the four boys would be taken to Honiara but could not recall whether Superintendent Stafford told the people not to worry or would straighten things up. He denied Superintendent Stafford saying-

"...Don’t worry, we will take them away and will come back..." or something to that effect.

On being cross-examined, he said-

"...I did not hear Stafford telling the boys about being able to go to school etc..."

I do not believe the accused's allegation of inducements cited by Miss Swift at Kolina uttered by Superintendent Stafford. The accused said that the promises were made after the interview at Kolina. That being the case, there can be no inducement after the event. Even if my notes are incorrect on that, the accused should not be believed. The accused was very evasive under cross-examination by Mr. Barry and in one of his answers, he said that education overseas in Fiji, New Zealand and Australia was also promised. I think that answer was not true. It was clearly a lie. I believe Superintendent Stafford instead. I saw him in the witness-box. He was calm and straight forward about what he could recall of the events that took place at Kolina on 2nd October 2003. I also believe Sergeant Toaki of being truthful about what he could recall of the talk given by Superintendent Stafford at Kolina. The accused participated freely in the interview at Kolina. The statements made in that interview were voluntary untainted by inducements as alleged by the accused. The interview was played on tape in court and I have no reason to suspect that something was wrong with it. The interview at the Central Police Station was incomplete and is of significance. The other inducement was said to be a general one. This allegation is a conclusion reached on the effect on the accused of the events commencing as far back as the surrender of guns and the greater peace process initiated by Mr. Warner and Mr. McDevitt up to the meeting at Kolina when the accused was interviewed by Station Sergeant Magness. This was the thrust of the accused's answer to question 104 in the interview conducted in the Iron Bottom Sound premises. This is a convenient inducement concept deduced by his Counsel. I cannot accept it. The interviews are not yet evidence in this Court until I rule on the application for exclusion. That interview was done in the presence of the accused's solicitor, Mr. Averre from the start to the end. There can be no suggestion that the interview was not voluntary in nature. The accused was free not to answer any questions or refuse that interview altogether. He did not. He cannot now go back on his words and say that that interview was forced on him and deny the statements he made in that interview as being not of his own making. I find that the three interviews conducted with the accused in which he made statements were done with his willingness and that the statements made therein were voluntary in nature.

Non-compliance with section 5(2) of the Constitution.

The accused was effectively under arrest when was being interviewed at Kolina and was in Police custody up to the conclusion of the last interview. I find that Station Sergeant Magness nor Sergeant Toaki nor Superintendent Stafford had told him of the reason for his arrest and detention. However, that is no reason for excluding the statements he made in his interviews on 2nd October 2003 for the reason that his statements in his interview were voluntarily made of his free will.

Conclusion.

I find that the statements made by the accused in the interviews conducted on 2nd October 2002 were voluntary beyond reasonable doubt. I so find. I therefore admit them in evidence in this trial. This application is also refused.

F.O. Kabui
Puisne Judge