IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

R E X

V

1.	SIONE SIUELI ANGILAU
2.	TA'UFO'OU FALE'OFA
3.	SEFO MOALA

Before The Hon. JUSTICE CATO 

Mrs Langi and Ms Macomber for the Crown 
Mr Fa'otusia for Mr Angilau and Mr Fale'ofa
Mr Moala in person

Ruling in relation to the admissibility of the evidence of an accomplice Meli Foliaki

[1]	The Crown indicated during her opening address that she proposed to call an accomplice, Meli Foliaki, as the first witness in relation to the complicity of all three accused in an attempted armed robbery of an Asco service station. During the course of that armed robbery a shotgun was discharged and the complainant was shot in the leg. The evidence of Meli Foliaki who was the driver of the vehicle who took the alleged robbers to an area near the place where the robbery was to take place in Nuku'alofa, implicated all three. Further, he was able to give evidence of planning and the role of each of the accused. His evidence was of vital importance to the prosecution.

[2]	The prosecution, in outlining the evidence that was proposed to be called, said, that, although initially Mr Foliaki had made a statement in which he denied involvement, after being pressed to tell the truth by a police officer who knew he and his family, he had volunteered a statement admitting his role in the plan and his actions afterwards which included meeting up with the robbers and assisting them to get home. Later, he approached the police volunteering to give evidence for the crown. I was informed a senior police officer had advised him that, if he would agree to give evidence for the crown charges would be withdrawn. He did and as a consequence the charges were withdrawn prior to the depositions hearing.

[3]	When the trial commenced, the accomplice had been given a de facto indemnity against prosecution by a senior police officer involved in the prosecution. I indicated my concern about this and adjourned the trial for Mrs Langi to secure further instructions. I wished to consider the admissibility of this evidence, and hear further argument, if necessary, the following day. I adjourned the trial overnight. 

[4]	My concern was that the actions of the police officer in offering such an inducement had pre-empted the law officers of the Crown, the Attorney-General and the Solicitor-General who have responsibility in Tonga for the commencement and termination of criminal prosecutions. I was also concerned about the integrity of the accomplice witness if it were to be adduced without a formal indemnity being given. 

[5]	The approach taken by the courts in other jurisdictions where the police have been involved in securing Crown evidence by inducement, has received judicial consideration by the Court of Criminal Appeal in England in Turner v DPP (1975) 61 Cr App Rep 67 and by the Privy Council, on appeal from the Court of Appeal of New Zealand in R v McDonald [1983] NZLR 252. In these both cases, the issue of the evidence of accomplices, the effect of police inducement and indemnities were considered. In both cases, the evidence was ruled admissible. However, certain principles emerged from these cases that are of fundamental importance.

[6]	First, police officers should not offer inducements to accomplices that amount to de facto indemnities. This point was made in Turner v DPP. There Lawton LJ, said;

"Undertakings of immunity from prosecution may have to be given in the public interest. They should never be given by the police."

[7]	Should police officers engage in attempting to persuade accomplices to make incriminating statements or give Crown evidence by offering them de facto indemnities against prosecution, they not only usurp the role of the law officers but they also risk corrupting the evidence of a witness to such a degree that the evidence may be excluded as matter of judicial discretion even though a later formal indemnity is granted. In both Turner and McDonald, challenges were made to evidence which was the subject of formal indemnity where police officers had been earlier involved in entering into arrangements with accomplices who wished to avoid prosecution.

[8]	In both cases, the argument was that police inducement had so corrupted the integrity of the evidence that it should not be admitted even though indemnities had been provided by the appropriate authority. In both cases, these challenges failed. However, the message given is clear. Police officers should not offer inducements to accomplices to make incriminating statements and, or give crown evidence against confederates. 

[9]	Where, police officers wish to encourage an accomplice or other possible witness to make incriminating admissions and, or give crown evidence with a prospect of an indemnity against prosecution, this should be effected by confidential overtures made between only very senior police officers and the Solicitor- General. As was said in Turner, indemnities against prosecution should only be given sparingly and in situations where the public interest requires such an approach. It is not for police officers to privately enter into such arrangements with accomplices without consulting the law officers. I have mentioned the importance of confidence because of the dangers inherent in an accomplice giving evidence for the crown.

[10]	On the morning after I had adjourned the trial, Mrs Langi produced a document in which the Solicitor-General had sought an indemnity for the accomplice from the Attorney - General on the ground that the witness had important evidence to give and was involved in the robbery only as a lesser accomplice and driver. The Attorney- General granted this and the indemnity was produced when the trial recommenced.

[11]	I considered the indemnity which bore both the signature of the Solicitor-General and the Attorney-General was sufficient to remove any incentive for the witness to give false evidence. 

[12]	Although the indemnity did not include an assurance of truthfulness, this was in my view implied in the request submitted to the Attorney which formed part of the indemnity document. In Brown [1983] 8 A Crim R 320, Leary J in the Supreme Court of the Northern Territory of Australia, considered Turner and an argument that an indemnity that did not contain an condition that immunity was conditional upon truthful evidence was inadmissible as providing an incentive for a witness to give false evidence. Although Leary J in Brown, as had Lawton LJ in Turner, considered that an indemnity should contain a condition or requirement that the witness would tell the truth, Leary J considered that this was implicit. In this case, I impressed upon witness, before he gave evidence that his future protection from prosecution depended upon his telling the truth and he confirmed he understood this. 

[13]	In my view, the evidence was admissible. The police in this case, whilst improperly securing the undertaking to give Crown evidence, and it seems withdrawing a charge after securing agreement, did not do so in circumstances where there was any inducement for the accomplice to make incriminating and possibly false statements to secure protection. His confession had been obtained before any inducement had been offered to him by the police. It was the reliability of the trial evidence in the absence of a formal indemnity that had concerned me. 

[14]	Importantly, by the time, the witness came to give his evidence; he had been properly indemnified by the Attorney-General upon the request of the Solicitor-General. He was made well aware of the conditions upon which his immunity from prosecution had been granted, namely that he tell the truth before his evidence was given.

[15]	If police officers in Tonga persist in offering de facto indemnities in exchange for crown evidence, a practice which I have encountered before this case in Tonga, they should appreciate that they may well prejudice the admissibility of that evidence even though the Attorney- General may later grant an indemnity. That is the effect of Turner v DPP and R v McDonald.

DATED: 5 JUNE 2013
J U D G E