HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 104 of 2013

REGINA

-V-

Nicholas Salopuka and Luke Yen

 (PALMER CJ.) 

Hearing:		23-24 August 2016
Ruling (voir dire):	26 August 2016

Mrs. M. Suifa’asia and Mr. I. Kekou for the Crown 
Mr. M. Pitakaka and Ms. M. Tahu for the Defendants.

Palmer CJ.

1.	The defendant, Luke Yen challenges the admissibility of his recorded statement, dated 7 November 2012, on the ground of unfairness, that there was unfairness in the way the interview was conducted and recorded.

2.	A number of reasons have been given which primarily pertain to some omissions in the way the interview was conducted and on the face of the recorded statement or document.

3.	The two officers, the interviewing officer and the witnessing officer, have both given uncontested oral evidence in relation to the interview.

4.	The omissions or defects relied on can be summarised as follows:

(i)	That the wording or way the caution had been put to the accused in questions 20 and 21 were ambiguous and vague and therefore inadequate to elicit a clear response as to whether he did understand the caution that had been given or not when he answered “yes” to both questions. 

(ii)	That the recorded statement was defective as not having been countersigned by the witnessing officer including one of the pages not countersigned by the interviewing officer.

(iii)	The third reason given is based on a technical point set out in section 171 of the Evidence Act as to the timing of the caution. 

Ambiguity in the caution?

5.	The caution as put to the accused is in the standard format and recorded as follows:

“a. Q20. Before mi askem iu any further question moa, mi must cautionim iu or warnem iu fastaem that if iu laek for stap quiet, iu save duim.  Waswe iu understandem?

 b. A20. Ia.

 c. Q21. But if laek fo talem out side blo iu, iu must ting ting carefully aboutim wanem bae iu talem because bae mi writem down wanem iu talem and save presentim long Court sapos iu go long court. Iu understandem?

d. A21. Ia.”

6.	The first issue for determination is whether those words used were ambiguous or vague as to be inadequate to comprise a caution as understood or set out in the Judge’s Rules.

7.	It is my considered view that the wording as described and referred to above is clear, concise and succinct.  In question 20, set out above, he was told in no uncertain terms of his right to remain silent and then asked if he understood that.  I find that his response could not be any clearer.  I reject the submission that the response given by the accused was vague and ambiguous and capable of any other conclusion.

8.	In the second part to that caution, set out in question 21, he was told that if he decided to tell his story that he was to think carefully before answering as what he said may be used or presented in court.  I am not satisfied this warning or advice was ambiguous or vague such that his response capable of any other interpretation.  

9.	I am satisfied the wordings as expressed consistent with the pijin version set out in the Judge’s Rules that had been endorsed and made available for use by police officers when conducting interviews etc.

10.	I dismiss this allegation of unfairness.

Defects in the face of the record.

11.	The second reason given, that of incompleteness or omissions on the face of the records can also be shortly disposed of.  Both officers have given un-contradicted evidence on the conduct of the interview and the circumstances giving rise to the omissions in the records.  I accept their evidence and find that the omissions are not fatal to the question of fairness and validity of the statement as recorded.  

12.	I am satisfied the failure or omission of the witnessing officer to countersign the statement had been adequately accounted for. I find nothing improper or irregular in the conduct of the interview such that the omission was unfair and would prejudice the rights of the accused during the interview.  That included the suggestion that because the interview was rushed it resulted in those omissions and that it was therefore unfair to the accused and the statement should not be admitted.

13.	I find the explanation given as being satisfactory and reasonable in the circumstances and not fatal to the overall manner and way the interview was conduct.  In their evidence, both officers explained that towards the end of the interview, the witnessing officer had asked to be excused to go to the Men’s Room quickly and while he was away, the officer in charge of the case had come in at that particular time and requested that the files be given to her for remand of the accused at the court.  Despite the explanations of the interviewing officer, the case officer insisted that the files be given to her as she needed to rush off to court for the remand of the accused.  Both officers conceded that the witnessing officer therefore could not countersign the statement before it was taken away.  I am satisfied on the evidence that there was no serious or fatal omission when that intervention occurred that would render the statement unfair and therefore prejudicial to the accused.  It is to be noted that the intervention occurred at the closing stages of the interview and did not affect the contents and veracity of the statement.  In any event all the pages were initialled by the accused.

14.	While it is noted that page two of the statement had not been initialled by the interviewing officer, he gave unchallenged evidence that it was more an oversight than anything else and suggested it may have occurred when that page may have become stuck together with the other pages.

15.	This ground must also be dismissed.

Section 171 of the Evidence Act.

16.	The final ground raises a technical point as to the timing of the caution, whether it was effective for the purposes of the recorded statement, or unfairly done and therefore prejudicial to the accused and should not be admitted.

17.	The objection raised is that the caution was made much later at the point when Question 20 was asked and not right from the beginning.  The flaw in this argument however is that it failed to appreciate that all the questions asked leading up to the caution under Question 20 being issued is that those questions related more to establishing personal details of the accused, his name, identity, address, home province and his sobriety whether he was affected in his mental capacity to appreciate what was being discussed at that time etc.  It will be noted that the preceding question, No. 19 was the initiating question, first establishing the purpose and object of the interview before issuing the caution.  I am not satisfied that the procedure and the timing of the caution to be irregular or improper and therefore unfair. It was properly and timely administered and this ground should also be dismissed.

Decision

18.	I am satisfied prosecution has discharged the onus placed on it that the statement was obtained fairly and rule accordingly that the statement of the accused is admissible as evidence in this case.

The Court.