HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Maegapu 	
		
Citation:		
		
Date of decision: 	16 March 2023	
		
Parties: 	Rex v Janet Maegapu	
		
Date of hearing: 	14 March 2023	
		
Court file number(s): 	16 of 2021	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 		
		
Judge(s): 	Maina, PJ	
		
On appeal from:		
		
Order:	The Record of interview obtained by the Police from the accused Janet Maegapu is involuntarily and therefore is inadmissible.	
		
Representation: 	Auga J & Tabepuda for the Crown 
Brook J R for the Defence 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code S 200, Evidence Act 2009, Part 14 S 167, 168, 169, 170 and 171, S 171 (1) and (2)	
		
Cases cited:	R v Swaffield [1998] HCA 1	

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 16 of 2021

REX

V

JANET MAEGAPU
Kira Kira Circuit 

Date of Hearing: 14 March 2023
Date of Ruling: 16 March 2023

Auga J & Tabepuda for the Crown 
Brook JR for the Defence 
RULING ON VIOR DIRE 
Maina PJ:
The accused Janet Maegapu was arrested for the offence of murder contrary to section 200 of the Penal Code. 
The Police took a Record of interview (ROI) from the accused but the Defence disputed the admission of ROI in the court and a voire dire was then conducted on the involuntariness and admissibility of the ROI as evidence in the court.
Brief Background 
The Police conducted the Record of Interview (ROI) of the accused on 30th March 2020.
The interview was conducted at the CID office at the Kira Kira Police Station. The interviewing officer was Woman Police Constable Tina Peli, and witnessed by (then) Police officer Alfred Ngelea.
Issue
Whether the ROI obtained by the Police from the accused is involuntary and inadmissible in the court.
The Crown 
Woman Police Constable Clementina Peli stated that she conducted the ROI of the accused. She cautioned to the accused by explaining the ROI procedures, informed her right to remain silence, anything she would say be her own freewill and the opportunity of a lawyer if accused wanted to see any one.
Upon these explanations to the accused, the interviewing officer explained or put to her the allegation of murder against her. 
The interview officer stated that she must talk and not to stay quite. The interviewing officer continued and interviewed the accused by the ROI questions and answers format.
During the interview, the accused told the recording officer that she was a bit sick. After the interview, Woman Police Constable Clementina Peli read back the statements in the ROI to the accused, the accused agreed to them, and then she signed it with her as recording officer recording officer and the witnessing officer.
Police officer Alfred Ngelea gave evidence and stated that he was the witnessing officer at the interview of the accused. The Police were satisfied that there was evidences against the accused.
The interviewing officer had cautioned the accused before the interview and there was no force, threat or duress to the accused. At the time of the interview, the accused appeared normal.
The Defence 
The accused Janet Maegapu gave evidences to the court and talked about or complained about the conditions of the Police Cell.
She was kept in the cell from 24th March 2010 until the time she was interviewed by the police on 30 March 2020.
In the cell, the Police removed her clothes and she only wore the trousers.
During the interview, the accused felt sick and told the Police but they did not do anything and continued to interview her. She found the questions put to her difficult and she was not able to understand them properly.
At the process of the interview, the accused decided not to talk or did not want to say anymore on the matter. However the officer kept on to ask questions or forced her with asking of questions although she did not want to answer or response to them.
Accused understood that there were lawyers and she wanted to talk to a lawyer but the Police did not find or allow anyone to see her.
Analysis 
With this matter in the voire dire, the issue is the admissibility of a confession or admissibility and the onus of proof is on the Crown to exclude any reasonable doubt.
The Crown’s positon is that the accused had admitted the offence at the ROI obtained from her on 30 March 2020 and the ROI is admissible as evidence in the court.
However, the Defence counsel submits that the interviewing officer did not stop after the accused responded or told the officer that she did not want talk or say anything more about the matter. However, the interviewing officer continued to ask questions to her as confirmed or shown in the ROI with Questions 36 to 41.
The ROI record tendered to the court shows that it was after the administering of caution under the judges Rules and the officer informed the accused of the allegation when the she decided not to talk or kept silence.
Before deciding on the evidences, there is a preliminary issue in law that I need to sort out. This is relate to section 171 of Evidence Act 2009 and status of position the Judges Rules. Noting the issue here is the breach of the Judges Rules thus would render the evidence or statement in the ROI be involuntary and inadmissible in the court.
Briefly before the passing of the Evidence Act 2009, the admissibility of Police Record of interview or any confessional statement at the ROI were done or under the Judges Rules.
With the passing of the Evidence Act 2009, these are now partially regulate under Part 14 of the Act in sections 167, 168, 169, 170 and 171 of the Act.
For the ROI, the relevant provision is section 171 of the Act that provide for the type on evidence of statements that are obtain during questioning of the accused and if they are not proper. 
Section 171 (1) and (2) of the Act is for cautioning of persons under arrest and on evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly. It require for the cautioning of the accused when in the occasions as the Police taking the evidence from an accused at ROI.
At what form or method it is not stated in the Act and the Rudges Rules continues as the guidance on the standard of fairness to be observed at the ROI or statement, any issue that may later arise as to the admissibility of a confessional statement made to Police. Otherwise, the matter now before me at the voire dire is a classic example that Judges Rules is relevant in determining the admissibility of the ROI. 
Further none compliance of the rules does not automatically exclude or admission of the ROI or statement into evidence but it all depend on the discretion of the judge in the regard to the case.
Grounds 
Coming to the grounds, there are other grounds raised by the defence for the involuntariness of the ROI but I will first deal one obvious ground. This ground is on the allegation that the recoding officer had forced by or continued on asking questions to the accused when she decided not want to talk or say anything to the officer.
It is so as any ruling on the ground may decide the consideration on other grounds or the end of the voire dire.
The ROI record tendered to the court shows that it was after the administering of caution under the judges Rules and the officer informed the accused of the allegation when the she decided not to talk or kept silence.
Counsel for Defence in his submission explicitly referred at Question 36 in the ROI when the accused responded that she did not want to say anything or decided to stop talking to them at the interview but the interviewing officer continued to asked questions to her.
Question 36, “Janet Mae waswe, you leak for tell sead stori blo you?” 
Response: “Nomoa”.
After the accused said “Nomoa”; the interviewing officer did not stop but continued to ask the questions to her about what had happened. These questions are shown in Q 37, Q38, Q39, Q40 and Q41. With the responses in these questions, the accused had allegedly admitted the offence. 
Defence counsel further submits the Accused in Question 26, told the officers about her health and that she was sick. Her response was “Mi sick lelebiti ia”.
It is not disputed that the accused understood the interview with the Police and she responded until the accused decided not to talk or speak anymore. It was when the accused responded in Question 36 that she did not want to talk on the matter anymore. Her response was or when she said “Nomoa”.
After the accused decided not to response or answer the question, the interviewing officer did not stop but continued to ask the questions to her about what had happened. These questions and responses were in the ROI in Q 37, Q38, Q39, Q40 and Q41. With the responses in these questions, the accused had allegedly admitted the offence.
It is important to understand the response to question 36 with the Pidgin English word “Nomoa”. This word or saying in pidgin simply means “no”. In the context or circumstance of this matter it would mean that she did not wish to say anything, did not want to talk about anything on her side or on the allegation put to her.
The Crown did not response the alleged breach but tendered the ROI record to the court. The ROI confirmed it was at the cautioning when the accused was informed of the allegation and her rights that she decided not to talk or to keep silence.
With the caution under the Act and the Judges Rules as guideline, it should be noted that it is proper that when any of the rights i.e. to remain silence is exercise by the accused, the Police must comply or stop the interviewing of the accused. 
The right to remain silence or not to tell anything further to the Police at the interview is her right and she can or entitle to exercise right at any time during or at the interview. The Police must respect that right and the interview should stop at that stage.
For this case, the accused decided not to tell or say anything further or to remain silence at the midst of the interview; however, the interviewing officer did not stop and continued to ask questions to her as shown or revealed with questions 37 to 41 in the ROI.
Such act of the interviewing officer to continue with the interview deprives or denies the right of the accused not to say anything or to remain silence. This act render the ROI or statement from the accused was improperly obtained from her. Therefore the ROI is involuntarily and accordingly cannot be admitted as evidence against the accused. 
With this ruling, there is no need to determine the other related grounds as they are for the admissibility of this ROI. 
Order of the Court
The Record of interview obtained by the Police from the accused Janet Maegapu is involuntarily and therefore is inadmissible.
THE COURT
Hon. Justice Leonard R Maina
Puisne Judge