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Regina v Foa [2010] SBHC 123; HCSI-CRC 256 of 2008 (17 February 2010)

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

Criminal Case No. 256 of 2008

REGINA

-v-

WILLIE FOA

Date of Hearing: 8^th, 9^th, 10^th, and 12^th February 2010
Date of Ruling: 17^th February 2010

Ms Christensen and Ms Kesaka for the Crown
Mr Tovosia and Mr Cavanagh for the Accused

RULING

1. MWANESALUA, J: The defendant, Willie Foa, stands trial for rape, contrary to Section 137 of the Penal Code. He pleaded not guilty to the charge. On 19^th May 2008, the Police conducted an interview with him which contained admissions suggesting that he committed sexual offences. He now challenges the admissibility of the record of the interview. He advances three grounds to challenge admissibility. They are (1) Unfairness, in that he did not participate in that interview of his own free will; (2) inducement/promise to participate in the interview, in that he was told by the Police that he would be released from custody if he cooperated; and (3) fabrication, in that some of the answers in the record of interview are not his as they were made up by the police.

2. Three police officers interviewed the accused on 19^th May 2008. They were Insp. Uiga, the interviewing officer, DC Hoiau, the witnessing officer and Det. Mounsey, the recording officer. The interview was conducted in the professional standard and Internal Investigation Unit Office (PS11) at Rove, between 5.41pm and 7.57pm, in Question and Answer Form. It was typed into a computer and printed for the accused to read. It was then signed by Insp Uiga, DC Hoiau and the accused himself.

3. The accused now claims that he gave answers to many questions in the record of interview without his free-will. He says the answers were extracted from him by force in the version which the Police would like him to answer them. He even went on to claim that some answers were made up by the police. In particularly, he pointed to the answers of questions Nos. 33, 35, 43 and 55 and to 57 to 59. Insp. Uiga, DC Hoiau and Det. Mounsey say that no force was ever placed on the accused to give his answers during the interview.

4. Then the accused says that he was promised or induced when "Uiga said for us to quickly go through the record of interview so that I would be free to go home which he lied about". And later on when he explained why he gave the answer "NO" to question 59, he said, "Like I said, I was traumatized when I slept in the cell so I wanted to answer the question in the version they wanted it so that I would go free". Insp. Uiga denied making any promise, inducement, force or threat to get the accused participate in the interview. This was confirmed by DC Hoiau and Det. Mounsey who were present through out the interview.

5. The accused pointed to his answers to questions 35, 52 and 55 as fabrications. The answers to these questions are in these terms: "A35. When she sat on my thighs I start to touch her breast but they were small breasts. So there I put my hands down to her belly button. I continued to slide my hands to her vagina, I was using my little finger on my right hand inside her vagina. I wanted to find out if she had sex with other people or not. I found out that she was very small so I believed that she had not had sex yet." "A52. When I was sober, I regret it but during that incident I was drunk". "A55. In reality I did not have sex with this girl but I use my finger inside the girl's vagina". His answers to these questions connected him to the victim and implicated him with sexual offences. These answers could merely come from a person who was with the victim at the scene of crime. Insp. Uiga, DC Hoiau and Det. Mounsey confirmed that the record of interview was accurate. It contained all conversations made during the interview. The court does not believe that the police fabricated these answers. They were given by the accused himself on his free will and not made up by the police.

6. The accused also objected to the admissibility of DC Hoiau's Note Book (Note book). Page 22 of that note book contained an alleged admission by the accused, when he was charged with rape. That admission is in these terms: "20:16pm - After S/Sgt Uiga read thru the charge to him, Supt. admits that it is true or hemi true". The ground for the objection is that the accused was not warned according to the Solomon Islands' Judges' Rules. Insp. Uiga says in his evidence that he charged the accused with rape after the interview was completed. The accused then admitted that the charge was true that he raped the victim. And that admission was recorded by DC Hoiau in her Note book at the time when it was made. DC Hoiau confirmed Insp. Uiga's evidence.

7. Section 168 (2) of the Evidence Act 2009 provides that: "Evidence of Confession is not admissible unless the Court is satisfied beyond reasonable doubt that the admission was voluntary". This section retains Common Law position which is applies in this jurisdiction. See for instance, Regina -v- Mahora [2003] SBHC 104 where CJ Muria stated (at page 3): "The law on the admissibility of a confession made by the accused in a criminal case has been well established. Both in this jurisdiction and elsewhere, the authorities have made it clear that an admission or confession made by the accused is not admissible unless it is shown to be voluntary. This means that the accused made the admission or confession in the exercise of a free choice to speak or remain silent. If the accused speaks because of threat, force, inducement or promise of an advantage held out by the person in authority, then the confession or admission cannot be said to be voluntary, and must be excluded. An admission or confession cannot be presumed to be voluntary. The prosecution must establish it beyond reasonable doubt. This common law position has been consistently recognized by the courts in this Jurisdiction, and one that is applicable to the circumstances of this country". And in Pitakaka -v- Regina [2007] SBCA 16 the Court of Appeal held (at page 10) that: "It has long been established that the burden of proving that answers given in the interviews were voluntary lies on the prosecution. The burden does not shift to the accused. As with all matters that must be proved by the prosecution in a criminal trial, they must be proved beyond reasonable doubt and the judge must ask himself whether the prosecution has proved that they were voluntary to that standard; Ibrahim -v- R [1914] AC 559; R Sartori [1961] Crim LR 397. It is true that the exercise of the judge's discretion to exclude a statement on the ground that its admission would be unfair is a matter of degree but the first and principal decision is whether the prosecution has proved it was voluntary; R -v- Prager [1972] 56 Cr App R 151.

8 The accused complains that the police did not ask him whether he was sick or was given food before they proceeded with the interview. But it is clear from his own evidence that his brother has brought medicine and food for him at the Watch House. He then took his medicine with water. The evidence of Insp. Uiga is that the accused appeared well, healthy and happy during the interview. DC Hoiau's evidence is that the accused was okey and sober during the interview. And, Det. Mounsey's evidence is that the accused was relaxed. The court would therefore infer from this evidence that the accused was not unwell and hungry during the interview. He was merely placed in his cell at about 1.30am on 19 May 2008 and not since he was arrested as he seemed to suggest in his evidence in chief.

9. The other complaints which the accused raises is that he asked for a lawyer to be present during the interview. Insp. Uiga and DC Hoiau's evidence is that the accused did not ask for the presence of a lawyer during the interview but merely said that he would see a lawyer later. Further, the accused says that he was forced by the police to answers questions, induced to cooperate in the interview and fabricated some answers to questions. Insp. Uiga denied that he ever forced, induced and threatened the accused to obtain answers and to obtain his cooperation during the interview. DC Hoiau and Det. Mounsey confirmed Insp. Uga's evidence. The questions were prepared before interview began. It will be noted that the answers which the accused said were fabricated and forced to give, implicate him in committing sexual offences with the victim. The police officers say that the record of interview was accurate. Det. Mounsey was posted at the PS11 to train and mentor local police officers discharge their duties as expected of them. The court would accept the evidence of the police officers and reject the accused's evidence. The court finds that the accused answered the questions in the record of interview on his own free will with the knowledge that he had a right as a suspect to remain silent.

10. The accused objected to the admissibility of the note book which purported to contain an admission to the charge of rape. The accused's evidence is that he did not see the Note book and denied the admission. He also denies writing the letter "x" at the end of the admission. DC Hoiau and Insp. Uiga's evidence is that the accused made the admission and put the "x" at the end of the admission. Det. Mounsey was not present when the admission and the "x" were made by the accused and recorded on the Note book.

11. The court finds that the police did not use force, threat and inducement to record the caution statement from the accused. That the answers to the questions had been given by the accused voluntarily. The statement is therefore admitted as part of the prosecution evidence in this trial. On the other hand, the court is not sure whether the accused made an admission to the charge of rape as recorded in the Note book. There was no record of any warning given to the accused in the Note book itself. The prosecution have not therefore proved the voluntariness of that confession beyond reasonable doubt. The Note book is therefore excluded.

Orders of the Court:

1. The caution statement recorded from the accused on 19 May 2008 is admitted.

2. The Note book is excluded.

THE COURT
(17/2/10)