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R v Lolohea [2004] TOLawRp 10; [2004] Tonga LR 50 (16 April 2004)

IN THE SUPREME COURT OF TONGA

R

v

Lolohea

Supreme Court, Nuku'alofa
Ford J
CR 370/2003

8 and 15 April 2004; 16 April 2004

Criminal procedure – admission of confession – not voluntarily obtained – excluded

The accused, 22-year-old Pita Lolohea of Popua, faced two counts. Count one, a housebreaking charge, alleged that on 16 February 2003 he broke into the home of William and Janine Holden at Popua and count two, a theft charge, alleged that he stole from the Holden's home some 55 items of jewellery, household goods and other personal possessions totalling in value $7241. Lolohea was arrested on Saturday 26 July 2003. In addition to the present charges relating to the Holden's property, he also faced three other charges in connection with an alleged break-in at the home of Tupou Tangitau at Houmakelikao on 14 February 2003. The accused pleaded not guilty to all the charges and elected trial by jury. Close to the hearing date the Crown withdrew the charges relating to the Tangitau break-in and the accused changed his plea to guilty in relation to the present charges. He was remanded for sentencing and a Social Inquiry Report was called for. When the probation officer reported back it was clear that the accused still maintained that he was innocent of both charges relating to the Holden's home. He told the probation officer that the real culprits were his brother Manu and a Semisi Funaki and that he was really taking the blame for them. The Court indicated that it was not prepared to accept his guilty plea and the matter was set down for trial. There were no eyewitnesses and the only evidence that the Crown had against the accused was his confession to the police accompanied by the usual record of interview and statement of charges forms. The accused denied that his statement to the police was given voluntarily or that it even was his own statement.

Held:

1. The Crown needed to prove beyond reasonable doubt that any confession obtained from an accused person was given voluntarily and not as a result of inducement, threat or promise relating to the charge. The Court also had a general discretion to exclude any confession made to a police officer while the accused person was in custody.

2. The Court was satisfied that the accused was correct and he did not have any idea of the contents of the Record of Interview that he was being asked to sign.

3. The voir dire evidence was such that, even had the police statements not been excluded under section 21 of the Evidence Act, the Court would have disallowed them pursuant to the proviso to section 22.

4. As the Crown indicated there were now other witnesses, the hearing was scheduled to resume on 30 April 2004.

Statute considered:

Evidence Act (Cap 15)

Counsel for Crown: Mr Sisifa
The accused in person

Judgment

Police officers need to understand that if an accused person is subjected to police brutality either during or after apprehension then they are wasting their time coming along to this court later contending that a confession extracted from the accused, without counsel being present, was given voluntarily. That is what happened in the present case.

The accused, 22-year-old Pita Lolohea of Popua, faces two counts. Count one, a housebreaking charge, alleges that on 16 February 2003 he broke into the home of William and Janine Holden at Popua and count two, a theft charge, alleges that he stole from the Holden's home some 55 items of jewellery, household goods and other personal possessions totalling in value $7241.00.

Lolohea was arrested on Saturday 26 July 2003. In addition to the present charges relating to the Holden's property, he also faced three other charges in connection with an alleged break-in at the home of Tupou Tangitau at Houmakelikao on 14 February 2003.

The accused pleaded not guilty to all the charges and elected trial by jury. Close to the hearing date the Crown withdrew the charges relating to the Tangitau break-in and the accused changed his plea to guilty in relation to the present charges. I remanded him for sentencing and called for a Social Inquiry Report. When the probation officer reported back, however, it was clear that the accused still maintained that he was innocent of both charges relating to the Holden's home. He told the probation officer that the real culprits were his brother Manu and a Semisi Funaki and that he was really taking the blame for them.

In those circumstances, and after maintaining his innocence in open court, I indicated to the accused that I was not prepared to accept his guilty plea and I set the matter down for trial.

At the outset of the hearing Crown counsel made it clear that, although he would be calling Janine Holden to speak about the break-in and the items stolen, there were no eyewitnesses and the only incriminating evidence that the Crown had against the accused was his so-called confession to the police accompanied by the usual record of interview and statement of charges forms.

The accused was not represented by counsel but he strongly denied that his statement to the police was given voluntarily or, for that matter, that it even was his own statement. He maintained that his record of interview was written down by the police officer and it was the officer's statement, not his own. I, therefore, called for a hearing on the voir dire to establish the admissibility of the statement in question.

Under section 21 of the Evidence Act the Crown needs to be able to prove beyond reasonable doubt that any confession obtained from an accused person was given voluntarily and not as a result of inducement, threat or promise relating to the charge. Under the proviso to section 22, the court also has a general discretion to exclude any confession made to a police officer while the accused person is in custody.

The accused took the oath and told the court that when he was arrested by the police he was physically beaten up. He said that he was punched behind the ear and on his left eye and mouth. A top front tooth was loosened and he demonstrated to the court how it is still visibly loose today. He also told how, after he was punched to the ground, he was kicked in the ribs and stomach by one or more of the arresting officers.

The accused said that he was then taken to the police station and locked in a cell. Later that day he asked if he could be taken to hospital for treatment because he was in pain and, to their credit, the police took him to Vaiola Hospital at approximately 8 p.m. the same evening. A doctor examined him and asked him if he wanted to lodge a complaint. According to the accused, he was not given an opportunity to answer because the constable guarding him said to the doctor: "No, that's all right. It's a result of running away."

The accused said that the doctor then treated his injuries and bandaged his head. He was taken back to his cell at the Central Police Station.

Referring to his interview next day by the police, the accused said that he was taken upstairs and interviewed by "'Alipate" (it turned out to be detective Cpl 'Alipate Finau). He said that 'Alipate cautioned him and in cross-examination he admitted that the officer had also asked him if he wanted to have a lawyer present before the interview commenced. The accused replied that he wanted a lawyer but he said that all 'Alipate then did was to go downstairs, walk back up again and continue straight on with the interview without saying anything about the lawyer.

The accused said that when the interview commenced, he began to give his version of events but 'Alipate said, "no, you're lying" and he punched him in the mouth and his mouth started bleeding. The accused said that after that 'Alipate just carried on writing out the statement and when it was finished it was not read back to him nor was he asked to read it. He was told by 'Alipate just to sign every answer on the spots that he had marked in red ink.

One thing that did emerge during the accused's evidence in chief and cross examination was that, if not quite illiterate, he has a very poor command of reading, spelling and writing. It took a long time for him to read a few words from the very short so-called confession that he himself had written. He said that 'Alipate had told him what to write. Another sentence he wrote in the same document was quite indecipherable, even to the experienced court translator. These observations assumed some significance later in the voir dire hearing.

In his evidence in chief, detective Cpl Finau said that the accused had been arrested on Saturday 26 July 2003 and he had interviewed him in connection with the Tangitau charges on Sunday 27 July and in connection with the Holden charges on Thursday 31 July. The officer was unable to explain, the delay between the interviews or the significant period in total which the accused had spent in custody apart from observing that "further work" was being done on the case.

Cpl Finau said in evidence in chief that he had not been involved in arresting the accused and that he had not noticed any injuries on him on either occasion when he conducted his interviews. He denied striking the accused or threatening him in any way. He said that all the recorded answers were given by the accused and at the end of the interview he had read back to him the whole of the interview and the accused had then signed alongside each answer. There then followed a rather surprising admission in cross-examination but before getting to that point, I set out from the transcript the relevant passage from the police officer's evidence in chief:

"A. The accused was arrested on the 26th which was a Saturday and I commenced working on him taking a statement on the 27th.

Q. On the 27th, when the record of interview was made, how did you see his demeanour, his appearance? Was he satisfied with everything that occurred to him?

A. I believe that he was okay, he was satisfied, save for the fact that he was concerned about him being arrested by the police.

Q. The first time you saw him, did you notice any injuries?

A. No."

There then followed, in cross-examination, the following exchange:

"Accused: You denied seeing me and I was injured?

A. Well, I did not see you with any injuries because I only came to the police station later on.

Accused: Whilst having this record taken down my head and ear was currently bandaged and I had this swollen eye but you're saying I was not injured?

Accused: You did not read me the questions and answers I had ...

Court: Sorry, just pause. You put a previous question and I didn't get the answer. Was there an answer to it?

Interpreter: No sir.

Court: Right, well I want you to answer that question that he put to you that while you were taking down his record he had his head and his ear bandaged and he had a swollen eye what do you say about that?

A. Yes sir, it is admitted that there was bandage - that the head was bandaged.

Court: You admit the head was bandaged, what about the swollen eye?

A. I cannot recall whether he had a swollen eye but I could recall he had a bandage. Court: So you could see that he was injured?

A. Well, I just recall it now that his head was bandaged.

Court: So, I'm putting it to you, you could see that he was injured?

A. Yes."

Later, Cpl Finau admitted that he was aware that the accused had been taken to hospital for treatment and that he had his head bandaged during both the interview on the 27th and 31st of July.

Police officer 'Ahofono also gave evidence on the voir dire. He was the countersigning officer who had sat in on the interview in question. He confirmed that the accused had a white bandage wrapped around his head but he denied that Cpl Finau had punched the accused as alleged. He recalled Cpl Finau asking the accused if he wanted a solicitor present but he could not recall the accused's response.

Significantly, 'Ahofono said that all the documents were given to the accused to read through himself before he signed. Cpl Finau, on the other hand, had said that he had read out the contents of the documents before the accused signed.

The accused told the court that whilst he was being held at the police station he asked to see a lawyer to complain about his treatment by the police. An interview was arranged with Mr Teisina Fifita. The accused waived his right to claim solicitor/client privilege and Mr Fifita gave evidence on the voir dire. He confirmed seeing the accused at Central Police station and noting his injuries but he could not remember 190 the date of his visit. He had been contacted by the accused's father.

Mr Fifita said that he recalled that the accused had a bandage around his head which appeared to have been a hospital bandage. It covered a cut above the right eye and another wound behind one of his ears. Mr Fifita pulled back the bandage so that he could inspect those two injuries. He was told that there was another cut on the head but he would have needed to completely remove the bandage in order to inspect that injury and he decided against it. Mr Fifita said that the bandage ran above the eyes and he could see that both of the accused's eyes were blackened and swollen. The right eye was the most badly injured. The witness said that he could hardly see any of the eyeball in the accused's right eye because of the swellings.

Mr Fifita told the court that the accused said he had been assaulted by the police and he also alleged that he had been beaten by the investigation officer in order to get him to confess. He wanted counsel to take court action against the police. I accept Mr Fifita's testimony.

After listening to all the voir dire evidence, I indicated to Crown counsel that the evidence was overwhelmingly against the admission of the statements. I said that I would give my reasons in writing and I now do so.

The accused has not established to my satisfaction that Cpl Finau did, in fact, punch him as claimed but, of course, that is not the test. The accused does not have to prove anything. As I have already observed, it is up to the Crown to prove beyond reasonable doubt that the statements were voluntarily given.

Cpl Finau is a large well built man with quite an intimidating demeanour. The accused is of slight build. Having already been brutally attacked by the arresting officers, the accused would have been only too keenly aware of the need to co-operate with the police. That in itself would have been sufficient inducement in terms of section 22. The threat did not have to be spelt out anymore. Its presence was already visible, albeit, wrapped up in a bandage.

Then there is the conflict in the police evidence as to whether the statement was read back to the accused or whether he was given an opportunity to read it for himself before he signed. Given that conflict, and the accused's state of illiteracy, I do not believe either police officer. I am satisfied that the accused was correct and he did not have any idea of the contents of the Record of Interview that he was being asked to sign.

The voir dire evidence was such that, even had the police statements not been excluded under section 21 of the Evidence Act, I would have disallowed them pursuant to the proviso to section 22.

After I gave my oral ruling yesterday, Crown counsel said that, contrary to his earlier indication, he now had other witnesses. I have, therefore, scheduled the hearing to resume on 30 April 2004.