BETWEEN:			REX
 
  	 	Prosecution 

AND 	:		    MA’ATI LINO  
 Accused

BEFORE LORD CHIEF JUSTICE PAULSEN 

Hearing		:	1 and 2 October 2018 
Date of Ruling		:	2 October 2018

Counsel	:	Ms L. Fakatou and Ms E ‘Akauola for the Prosecution 
The Accused in person 

RULING FOLLOWING VOIR DIRE

[1]	Mr Lino elected trial by jury on a charge of reckless driving causing grievous bodily harm.  
[2]	It is alleged that on 11 November 2017 while driving recklessly on the Hihifo Road he hit Fine Muli causing him grievous harm. 
[3]	In opening Ms Fakatou referred to the intention of the prosecution to call evidence of a statement Mr. Lino was said to have made to Police Officers to the effect that he was the driver of his car on Hihifo Road and felt that he had hit something but nevertheless had driven on and later returned but saw no sign of anything.  
[4]	A Sgt Satini gave evidence of having visited Mr. Lino’s house with Police Officer Mala’efo’ou.  He recounted the statements Mr. Lino was said to have made to the effect I have described in paragraph [3] above. He also sought to introduce into evidence a Police diary recording the conversation prepared by Police Officer Mala’efo’ou.  Before he was able to do so I raised with Counsel and Mr. Lino (in the absence of the jury) whether this evidence was admissible.
[5]	I then excused the jury until 2pm today and conducted a voir dire when I heard from Sgt Satini and Police Officer Mala’efo’ou.  They were cross-examined by Mr. Lino.  I then heard submissions.
[6]	Ms. Fakatou now concedes that the evidence of what was allegedly said by Mr. Lino and the Police diary entry are inadmissible in evidence.  This is because in breach of section 148 Tonga Police Act, and in circumstances where the Police had sufficient evidence to charge Mr. Lino (the evidence I do not need to detail here), he was not cautioned as to his right to remain silent (R v Vailea, 22/5/2018, CR 75 of 2017 and R v Lopeti, 8/6/2018, CR 69 of 2017). 
[7]	Ms Fakatou’s concession was properly made and the evidence is clearly inadmissible.
[8]	Following the making of this concession Mr. Lino applied that I declare a mistrial and discharge the jury.  Ms. Fakatou submits that it would be sufficient if the evidence is declared inadmissible and the jury is given a clear warning to disregard her opening comments and the evidence of Sgt Satini.
[9]	In deciding whether to declare a mistrial the Court exercises a discretion and the overriding consideration in a case such as this is whether the disclosure of the inadmissible evidence could result in an unsafe conviction.  
[10]	In making that assessment factors to be taken into consideration include (a) the important issues in the case (b) the nature and impact of the improperly disclosed material (c) the manner and circumstances of the disclosure, and (d) the extent to which any prejudice can be remedied by judicial direction or otherwise (see Archibold 2009 at 4-260).  
[11]	In my view I have no option but to direct a mistrial and discharge the jury for the reasons that follow.
[12]	The evidence in question is directly relevant to what I understand is an important issue in the case namely the identity of the driver of the vehicle which struck the victim.  Ms. Fakatou opened the prosecution case on the basis that the likely defence was that Mr. Lino was not the driver of the vehicle that hit the victim.  The evidence in question is clearly directed to that very issue.
[13]	Secondly, the evidence was deliberately called by the Prosecution.  It should have been understood that it was not admissible yet it was given prominence by Ms. Fakatou in her opening and was the focus also of Sgt Satini’s evidence. 
[14]	Thirdly, as a general rule some of the most cogent evidence against an accused person are admissions of relevant facts.  It appears to me on the evidence that I have heard to date that if a jury was to accept the evidence of Sgt Satini and Police Officer Mala’efo’ou there would be a real likelihood of a conviction; the evidence is highly prejudicial to Mr. Lino.  
[15]	Related to this, I noted that the jury appeared to be observing the proceedings very closely and taking notes during Ms. Fakatou’s opening and Sgt Satini’s evidence.  I have no doubt that the significance of the evidence was well understood by them. 
[16]	I am not satisfied that it is reasonable to expect that despite the making of a clear direction to the jury members and their genuine and best intentions to do so that they will in fact be able to disregard the evidence.
[17]	Finally, I note that two days after Mr. Lino is alleged to have made the statement to the Police Officers he was arrested and cautioned.  Once cautioned he refused to make a statement.  It appears to me, in those circumstances, likely that even if he did make the statement attributed to him (about which I make no finding) had he received a caution he would have refused to speak to the Police, as was his right.  
[18]	It would be extremely unfair and defeat the very purpose of section 148 that Mr. Lino should be subject to the risk that the jury may (even subconsciously) have any regard to this evidence.
	Result
[19]	For these reasons I direct a mistrial and when the jury returns at 2pm today I will discharge them from their service.
[20]	I direct that Mr. Lino is to be retried and he is remanded on bail on the existing conditions to appear again at 9am on Tuesday 9 October 2018 when a new trial date will be set. 

[20]	To ensure Mr. Lino receives a fair trial I also prohibit the publication of this ruling until the completion of his trial on this charge.

							   	O.G. Paulsen 
NUKU’ALOFA: 2 OCTOBR 2018. 	     	   	LORD CHIEF JUSTICE