IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 823/97 and 879/97

R

v

Lavakei’aho

Finnigan J
24 and 25 August 1998; 25 August 1998

Evidence — admissibility of confession — voir dire
Evidence ⎯ question whether confession made voluntarily ⎯ Crown to prove 

Counsel for both accused challenged the admissibility of the record of interview, formal charge document and confession statement which the Crown sought to tender in respect of each accused. Both counsel relied upon s 21 and the proviso to s 22 of the Evidence Act (Cap 15). The Crown accepted the onus of establishing beyond reasonable doubt that the statements were made voluntarily.

Held: 

1. The court was unable to say that the statements made by each of the two accused were made voluntarily. 

2. The documents were ruled inadmissible. 

Cases considered: 
R v McCuin [1982] 1 NZLR 13 (CA) 

Statutes considered:
Evidence Act Cap 15 

Counsel for prosecution: Mr Cauchi 
Counsel for defendant: Mr Kaufusi and Mrs Taufaeteau

Judgment

There has been a challenge by counsel for both accused to the record of interview, formal charge document and confession statement which the Crown wishes to tender in respect of each accused. Both counsel rely upon s 21 and the proviso to s 22 of the Evidence Act, Cap 15. The Crown accepts the onus of establishing beyond reasonable doubt that in each of the three documents in the case of each accused the statements of the accused were made voluntarily.

I have heard the evidence of the police officer who took down the answers in each of these three documents for each of the two accused. He has been cross-examined by both counsel. No other evidence has been called. I have noted the following passages in the police officer’s evidence, first about his dealings with the accused Lavakei’aho and second about his dealings with the accused Tukutau. 

The police officer was frank and direct in all his answers to counsel. (Reads passages from notes of evidence. In respect of the accused Lavakei’aho, these included answers that the police officer had been told by another police officer and by the accused that he did not want to make a statement, but the police officer told him he must; and that after the forms were completed by the police officer, including the answers of the accused, he told the accused he must sign them. The recorded interview commenced at 2:00 am and finished at 3:3l am, after which the charge was put and further statements recorded. This was the second interview, the first having yielded, to the other police officer, answers that were thought unsatisfactory. In respect of the accused Tukutau, the evidence included answers that the police officer had kept the accused briefly in a police-station cell before taking him to confront the alleged accuser, (in Hu’atolitoli prison where the accuser was a sentenced prisoner). Further, that he had told the accused to speak up and not tell lies because after the meeting with the accuser he would put him in the cell. The accused had replied that he knew nothing of the alleged offence, and upon return from Hu’atolitoli the police officer had put him in the cell. The police officer told him that if he did not admit the offence, he would be gaoled for eight days.) 

I have to consider that evidence in the light of s 21, which is as follows (reads the whole section). From the authorities mentioned to me, I am satisfied that one is sufficient, R v McCuin [1982] 1 NZLR 13 (CA). That case is also the authority in New Zealand for the onus which has been accepted in this voir dire by the Crown. There, the New Zealand Court of Appeal in the judgment of the majority in a five-judge court, said: 

“… confessions obtained by improper methods are excluded, not only because of their potential unreliability, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subject to ill treatment or improper pressures in order to extract confessions …” 

After considering the above evidence, I am unable to say that, without reasonable doubt, the statements made by each of the two accused, in turn, to the police officer were made voluntarily. Pursuant to s 21 of Cap 15, I am bound to rule each of the three documents, in respect of each accused, inadmissible to prove the statements of the accused that are recorded in them. I rule accordingly.