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

Cr 195/00

R

v

Makahununiu

Ford J 
7, 8 June 2001; 8 June 2001 

Evidence – admissibility of statements made by accused – voir dire hearing – all inadmissible 

The accused was charged with abetment to a robbery that involved firearms. During the hearing the Crown wanted to call evidence involving oral statements made by the accused to the police on the night of his arrest (22 July 2000), other statements made on 24 July 2000, and the record of interview, charge form, and "confession" taken on 25 July 2000 and recorded in writing. The accused submitted that none of the evidence should be admitted because it was obtained with force and threats of violence in breach of section 21 of the Evidence Act or alternatively he submitted that it should be excluded by the Court in the exercise of the Court's discretion under the proviso to section 22 of the Evidence Act. There was then a hearing on the voir dire. 

Held: 

1. The Court was satisfied that any oral admissions obtained by the police breached section 21 of the Evidence Act and they were excluded for that reason. 

2. The Court was left in doubt about the voluntariness of the written statements given by the accused to the police in the various documentation completed on 25 July. The Crown's obligation was to remove any such doubt. It did not do so and, in the exercise of the Court's discretion under the proviso to section 22 of the Evidence Act, the various written documentation were disallowed.  

3. The outcome of the voir dire hearing was that all the statements made by the accused which the Crown sought to rely on were ruled inadmissible. 

Case considered: 
R v Vaiangina [1990] TLR 118 

Statute considered: 
Evidence Act (Cap 15) 

Counsel for Crown: Miss Simiki 
Counsel for defendant: Mr Tu'utafaiva 

Oral Ruling on the Voir Dire

We have just completed a lengthy hearing on the voir dire. The Crown wants to call evidence which broadly falls into three categories: 

• First, oral statements made by the accused to the police in answer to questions on the night of his arrest on 22 July 2000 and possibly running into the early hours of Sunday 23 July. 

• Secondly, other statements made on 24 July in the course of a reconstruction of the crime and in answer to questions asked about the whereabouts of the stolen money. 

• Thirdly, the traditional type of record of interview, charge form and so-called confession taken on Tuesday 25 July and recorded in writing. 

The accused submits that none of this evidence should be admitted because it was obtained with force and threats of violence in breach of section 21 of the Evidence Act (Cap 15) or alternatively he submits that it should be excluded by the Court in the exercise of the Court's discretion under the proviso to section 22 of the Evidence Act. 

The Crown accepted that it has the onus of establishing beyond reasonable doubt that the statements were not obtained in breach of section 21 of the Act. It called 5 police officers on the voir dire who were involved at different stages and to varying degrees in what I shall call the processing of the accused from the time he was arrested at his home on the night of Saturday 22 July until after he had made his confession statement on Tuesday 25 July 2000. They denied that anything untoward had happened. 

With one or two exceptions which I suspect he may not have been aware of because his client had never relayed the information onto him, counsel for the accused very properly put his client's case to the various police officers who were called to give evidence and both the accused and his mother gave evidence. In summary, the accused's story was that: 

— only one police car came around to his home that night; 

— that among the officers who came to his home were constables Finau and Tonga; 

— that he was not taken directly to the Mu'a police station but to the Vaini police station where he was stripped to his underwear, handcuffed, assaulted and verbally abused by Sergeant Naufahu and at least one other officer; 

— that he was then taken to the Mu'a police station where he again was assaulted by Sergeant Naufahu and Constable Tonga and at one stage when the accused was seated cross-legged on the floor with his hands handcuffs behind his back, Constable Tonga stood on the handcuffs causing them to bite into his wrists resulting in severe pain and immediate swelling of his wrists and disfigurement of a bone in his right hand. The accused also described other alleged assaults by Constable Tonga including the officer standing on his left knee and pressing it downwards while he (the accused) was still squatted cross-legged on the floor with his hands handcuffed behind his back. 

There was also a period during this "processing" when the accused was left sitting on the floor of a room in the police station completely naked and handcuffed. The accused described his treatment by the police as "torture". He said that they treated him like an animal and in the end he gave them the answers that they wanted to hear because he didn't want to get hurt any more. 

The accused is aged 20. He was born in Tonga but has lived for some 17 years in the USA. His understanding of the Tonga language was limited, English being his main language. He is obviously an intelligent person and is very articulate. He expresses himself well. He knew his rights and on more than one occasion he asked to see a lawyer. That request was denied. 

It is very easy for an accused who has made an incriminating statement to the police to have second thoughts about it later on and then try and challenge its admissibility under section 21 of the Evidence Act as having been given under duress or threats. The Court is ever mindful of that type of scenario and for that reason all evidence given on the voir dire needs to be scrutinised very carefully. 

Some of the allegations made by the accused, I do not accept. I am satisfied, for example, that two police cars went to his home on the night of his arrest and I do not accept that Constable Tonga was one of the officers who was in attendance at that stage. Nor do I accept that they detoured to Vaini police station on the way back to Mu'a. One thing I do accept, however, is the evidence about the injuries the accused says he received to his wrists from the handcuffs. 

The Crown's explanation for the injuries was that handcuffs will cause bruising and cuts into the skin if there is a lot of movement by the person wearing them. I do not accept that explanation as a reason for the injuries which the accused received to his right wrist in particular on the night in question. His mother described quite graphically how the wrist injuries appeared to her when she later saw the accused on a visit to the Mu'a police station. She wanted to get them examined by a doctor straight away. She told how she took the accused to hospital for x-rays after he was eventually released from police custody in early August 2000. An x-ray request form issued by the Tonga Medical Department on 4 August corroborated her evidence in this regard. 

The outline of the injuries to the accused's wrists are still evident today almost 12 months later. All the evidence I have heard is consistent with the accused's account of what happened and of how Constable Tonga stood on the handcuffs deliberately to inflict severe pain on the accused. 

Although the Crown called nearly all the police officers involved on the night of 22 July, it was significant that they never called Constable Tonga even though the accused's counsel had named him as the main culprit right from an early stage of his cross-examination of police witnesses. 

In addition, I accept that the accused was subjected to the degrading experience of being left naked and handcuffed at the police station for a significant period of time. Sergeant Naufahu told the court that he would have been left naked for at least quarter of an hour. No explanation was proffered by the police for this action. 

Against the background, I am satisfied that any oral admissions obtained by the police breached section 21 of the Evidence Act and I exclude them for that reason — that includes any admissions made in the course of the demonstration or in answer to questions about the whereabouts of the stolen money. 

Turning to the written statements taken on 25 July, I do not accept that the accused was beaten by Constable Siale at the time these statements were taken and I do not accept that they were obtained in breach of section 21 in the same way that the other apparent admissions were obtained. Counsel for the accused, nevertheless, submits in the alternative that the Court in the exercise of its discretion should reject these statements under the proviso to section 22 of the Evidence Act and he makes a point that they were taken in breach of the fourth principle laid down by Webster J in R v Vaiangina [1990] TLR 118 which says that after charges have been made, no questions about the offence should be put to the accused though he may, if he wants to, make a voluntary statement after a further caution. 

In this case, not only had charges being laid prior to 25 July but the accused had actually appeared in the Magistrates' Court on 24 July in response to the charges. So the case certainly comes within the fourth principle Justice Webster spoke about but, nonetheless, if I was satisfied that the written statements were given purely voluntarily then I would, in the exercise of my discretion, allow them to be admitted into evidence. 

On the one hand, it is tempting to conclude that being an articulate individual who knows his rights, the accused is not going to give a written incriminating statement to the police except on a voluntary basis. On the other hand, the fact is that he was still in police custody and he was still handcuffed at the time he gave the statements on 25 July - nearly three days after his arrest. He had appeared in the Magistrates' Court the previous day and there was no evidence of any trouble with him at that time or indeed at any time since his arrest. 

I asked Crown counsel why the Crown considered that it was necessary to have handcuffs on the accused when he was being questioned on 25 July if the statement were being given on a purely voluntary basis as she had submitted. Her answer was "because of the nature of the offence". While I can accept, given the serious nature of the offence (abetment to a robbery that involved firearms) it may have been appropriate to have the accused handcuffed at the time of his initial arrest, without evidence that he had engaged in some violent acts or attempted acts of violence in the intervening period or some other sensible explanation, I cannot accept that the nature of the offence, in itself, entitled the police to still have the accused handcuffed some three days after his arrest. 

I am, therefore, driven inexorably to the conclusion that the only reason the handcuffs were still on the accused at the time the written statements were obtained was to intimidate him and to remind him that at any time the police could do again to him what Constable Tonga had done to his wrists on the Saturday night. It is not without significance that as soon as he gave his written statements to the police on the 25th, the handcuffs were removed. 

For these reasons, I am left in doubt about the voluntariness of the written statements given by the accused to the police in the various documentation completed on 25 July. The Crown's obligation was to remove any such doubt from my mind. It has not done so and, in the exercise of my discretion under the proviso to section 22 of the Evidence Act, I disallow the various written documentation. The outcome of this voir dire hearing is that all the statements made by the accused which the Crown seeks to rely on are ruled inadmissible.