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

CR 79 of 2018

BETWEEN:			REX
 
  	 	Prosecution 

AND 	:			FILIPO ‘AMANAKI LELEI TU’IFUA   

 Accused

BEFORE LORD CHIEF JUSTICE PAULSEN 

Hearing	:  8 – 9 October 2018 
Date of Ruling	:  10 October 2018

Counsel	:  Ms L. Macomber for the Prosecution 
   Mr S.H. Taione for the Accused 

RULING 

	The application 
[1]	The accused is charged with one count of rape contrary to section 118(1)(b) of the Criminal Offences Act.
[2]	This ruling concerns an application by the accused to exclude from evidence a written record of interview, written statement of charge form and voluntary statement all given by the accused when interviewed by a Constable Siale on 27 November 2017.  I will refer to these documents as the confession because they tend to inculpate the accused of the offence with which he is charged. 
 [3]	Whilst it initially appeared that a plethora of grounds were to be relied upon in support of this application, only one ground is now advanced.  That ground raises an issue of much importance for policing in Tonga.  It is that the confession was obtained in breach of s. 149 of the Tonga Police Act (the Act) and must necessarily be excluded from the evidence for that reason.  
[4]	Section 149 provides:
149 Right to communicate with relative, friend or law practitioner 
(1) Unless subsection (2) applies, before a police officer starts to question a person who has been charged with an offence, the police officer shall inform that person that he may telephone or speak to a relative, friend or law practitioner. 
(2) The police officer may refuse to allow a person who has been charged to speak with any of the following persons — 
(a) a person who is also suspected of being involved in the commission of the offence; or 
(b) a person whom the police officer reasonably believes may jeopardise the investigation of the offence if permitted to communicate with the person.
[5]	I heard evidence from Constable Siale, who as noted conducted the interview with the accused, and a Constable Lakai, who co-signed the confession.  I also heard evidence from the accused.
Facts
[6]	The facts fall within a small compass and are summarized in the following paragraphs.  
[7]	It is alleged that the accused committed the offence of rape on 11 November 2017.  A complaint was made by the alleged victim on around 13 November 2017.  The accused was arrested on or around 22 November 2017.  He was charged with rape and taken before a Magistrate.  He was not granted bail and was held in a cell at the Mu’a Police station.  
[8]	On 27 November 2017, the accused was taken from his cell and interviewed by Constable Siale.  The prosecution say that Constable Lakai sat through the interview but this is disputed by the accused.  It is not necessary for me to address the issue as it is not relied upon by the accused as a matter that is relevant to the ground now advanced for excluding the confession.
[9]	At the commencement of the interview Constable Siale gave the accused a warning which I accept was read to the accused and was written out in the confession and signed by the accused.  It was in these terms 
Filipo ‘Amanaki Lelei Tu’ifua, I intend to ask you some questions and you are free (or at liberty) to answer the questions or not as you are not forced to speak unless you wish to but whatever you say will be recorded in writing as evidence. 
[10]	The first four questions put to the accused and his answers were as follows:
Q1	Do you understand the paragraph that was just read out to you as is shown above?
A1	Yes.
Q2	What do you understand about this?
A2	I am free to answer the questions which you ask.
Q3	Do you want a lawyer to be present whilst we record your statement?
A3	No it is alright.
Q4	Is there anything else that you need before we continue?
A4	No.
[11]	The accused signed each of the answers he had given to acknowledge them and I understand that it is not disputed that they were indeed his answers to the questions put to him.
	Submissions  
[12]	The parties agree that s. 149 was breached.  When interviewed by Constable Siale the accused had been charged with rape and he was held in custody on that charge.  He was not told, before Constable Siale started to interview him or at all, that he may ‘telephone or speak to a relative, friend or law practitioner’.  
[13]	The issue that follows from this is, what is the consequence of the breach?  
[14]	Counsel advise me that there are no prior decisions on s.149 and in my own research I have not found any either.  There are however cases on the related provision, s. 148, to which I shall refer. 
[15]	Section 148 requires that a police officer shall caution a person about their right to remain silent if the police officer has sufficient evidence to charge that person at the time he/she commences questioning or forms that belief on reasonable grounds during the course of the questioning.  
[16]	Mr. Taione argued that a breach of s. 149 requires the automatic exclusion of an accused’s statement.  This is because s. 149 appears in Division 3 of the Act, which is concerned with safeguarding the important rights of persons interviewed by the Police in relation to the commission of offences with which they may have been involved, and that the requirements of the section are mandatory.  
[17]	He referred me to a decision of Cato J in relation to s. 148 in R v Vailea (Unreported, Supreme Court, CR 75 of 2017, 22 May 2018) in which the Judge excluded a statement made by an accused in breach of s. 148.  
[18]	Ms Macomber argued that a breach of s.149 does not result in the automatic exclusion of an accused’s statement.  She contends that the Court should have a discretion whether to admit or exclude the statement notwithstanding a breach.  
[19]	On the assumption the Court has such a discretion, Ms. Macomber submitted that the confession should not be excluded because Constable Siale’s failure to observe the requirements of s. 149 did not result in any prejudice to the accused.   This was because, she said:
(a)	The accused knew the gravity of the charge and was willing to talk to Constable Siale; 
(b)	There was partial compliance with s. 149 in that the accused was asked if he wanted a lawyer, 
(c)	If the accused had asked to have a friend or relative present he would still have made a statement; and 
(d)	The accused was asked in Q4 whether he wanted anything else before continuing and he indicated that he did not.  He could at that stage have asked to speak to a relative or friend, but did not do so.
Discussion  
[20]	The first issue is whether a breach of s. 149 will result in the automatic exclusion of an accused’s statement or whether, as Ms. Macomber submits, the Court retains a discretion to admit or exclude.
[21]	There are indications in Vailea (supra) and in another case, R v Lopeti (Unreported, Supreme Court, CR 69 of 2017, 8 June 2018), that Cato J has taken a view that breach of s. 148 will result in automatic exclusion.  
[22]	In Vailea at [7] Cato J said: 
7. The problem that the Court encountered with the procedure adopted in this case was that, prior to either of the two statements being taken by Police there, was in existence evidence which justified her arrest and would have justified her being charged as well. Section 148 is a very important aspect of Tongan criminal procedure. In my view, it is mandatory for a police officer in Tonga to caution a person who could be charged on the evidence that is available. The obligation to caution signifies to a person being interviewed the serious consequences that may result if the person proceeds to co-operate and engage with the interviewing officer and may make statements either of admission or denial, and it signifies also or brings home to the suspect that he or she may be the subject of criminal prosecution. The right to silence has been a cornerstone of Anglo - American criminal jurisprudence for a very long time and, is also a cornerstone of criminal justice and police procedure in Tonga which has an adversary approach to criminal procedure and trial practice. Unlike the caution under the old Judges' rules which were viewed as rules of practice, a breach of which did not inevitably mean that a court would rule that a record of interview was inadmissible, see R v Convery [1968] NZLR 426, Tonga has, in section 148, provided that a caution is a mandatory requirement where a police officer has sufficient evidence to charge before commencing an interview. The fact that this is the first prosecution to have come before this Court on section 148 suggests that Tongan police have conscientiously followed the statutory requirements.
8. It may not always, however, be clear to a police officer prior to interview how strong the available evidence is and whether it would support a charge. An officer contemplating an interview must attempt to ascertain the strength of the evidence by making inquiry. If unsure as to whether the evidence available is sufficient to justify charge, the officer should caution in order to avoid any later argument at trial that a confessional statement is inadmissible because it breached the requirements of section 148. In this case, I am satisfied that Sgt Sili did know sufficient of the background of the case from Detective Vakalahi and that the evidence available would support a charge of incest so that he was required to caution the accused before an interview with her commenced. Even if Detective Vakalahi had not told him about the available evidence sufficient to support a charge, the fact that Vakalahi and he were engaged in the same inquiry would have, in my view, meant that the knowledge Vakalahi possessed should be imputed to Sgt Sili which would have meant that the failure to caution should also have caused the statements to be excluded for breach of section 148.
(the emphasis is mine)
[23]	Both ss. 148 and 149 (and the other provisions in Division 3 of the Act) are concerned with the protection of accused persons’ rights and certainly in the case of ss. 148 and 149, in the words of Cato J, with ‘the rights of an accused to understand the serious consequences that may result if the person proceeds to co-operate and engage with the interviewing officer and may make statements either of admission or denial, and it signifies also or brings home to the suspect that he or she may be the subject of criminal prosecution.’  Both sections express obligations in mandatory terms.  It would tend to follow in those circumstances that if a breach of s. 148 results in automatic exclusion of an accused’s statement then so too must a breach of s. 149. 
[24]	However, it does not appear that the issue was raised before Cato J or that he ever turned his mind to it.  I do not consider that his rulings should be taken as expressing a view in favour of automatic exclusion nor do I think that such an approach is necessarily the correct one.  In the time available to me I have not had the opportunity to research the matter in depth but, for myself, I consider that the Court must retain some discretion whether to admit or exclude a statement made in breach of s. 148 and/or s. 149.  
[25]	In support of this view I note that there is nothing in Division 3 of the Act that states that a breach of any of its provisions will result in the exclusion of an accused’s statement.  In addition, a discretionary approach is congruous with the proviso to s. 22 of the Evidence Act which confers on the Court a general discretion to refuse to admit a confession made to a police officer by an accused person in custody.  The section is not expressed to be subject to the provisions of any other Act.  Furthermore, automatic exclusion would be a very blunt instrument and I cannot conceive that the Legislature intended that an accused’s statement would be automatically excluded regardless of the circumstances, nature, seriousness and consequences of the breach and without any balancing of the interests of the accused and of society in a particular case.  However, in the event this is an issue for another case.  I do not need to decide it because in this case the confession should plainly be excluded.  
[26]	Here the breach of s 149 was not a trivial or technical one.  There was a substantial, if not a total, failure to observe the requirements of s. 149.  The accused was not told that he had a right to telephone or speak to a friend or a relative.  He was not told he could telephone a lawyer.  Although he was asked if he wanted a lawyer he was not told he had a right to speak to a lawyer or how he might communicate with one if he did. 
[27]	Ms. Macomber acknowledged that if represented by a competent lawyer the accused would likely have made no statement but argued that the accused said that he did not want a lawyer and that speaking to a relative or friend was unlikely to have prevented him from making his statement.  I do not accept these submissions.  It is a fact that many people in Tonga charged with even the most serious criminal offences cannot afford a lawyer.  Even if told that they have the right to a lawyer they cannot possibly engage one.  This is one reason why the requirement of s. 149, that an accused be told that he/she may speak to a relative or friend, is so important.  In many cases it will represent the only means by which an accused person may have any support and/or advice before being subjected to interrogation by the Police.  
[28]	I do not accept the implication in Ms. Macomber’s submission that a friend or relative would not offer any meaningful assistance and would not prevent an accused minded to speak to the Police from doing so.  The friend or relative might well be a person with some knowledge of an accused’s rights or may offer moral support to the accused so that he/she feels able to decline to make a statement (if that is his or her wish) or they might be minded to take steps to obtain a lawyer for the accused. 
[29]	In this case the accused was in a particularly vulnerable position.  He was charged with a serious offence.  He was just 19 years old and had been held in custody for a number of days before he was questioned.  He is an unsophisticated young man and I have doubts that he fully understood the cautions he was given. He is open to suggestion and tended to agree with most propositions put to him, whether by his own Counsel or Ms. Macomber.  I am satisfied that with the benefit of advice from a friend or relative he might well have taken another course. 
[30]	Finally, I do not accept Ms. Macomber’s submission that Q4 effectively resolved the breach of s.149.   It is devoid of any information as to the accused’s rights.  I do not consider that an accused person would regard the question as an invitation to pause the interview whilst he/she made contact with a friend or relative.  It is telling that when asked about this Constable Siale initially said that the purpose of the question was to see if the accused wanted a bathroom break or a smoke.  It was only in response to a leading question from Ms. Macomber that he said that the accused might have requested another person to be present.  I consider that suggestion fanciful.

	Result 
[31]	I am satisfied that there was a breach of s. 149 and that the breach was both substantial and that it prejudiced the accused such that the confession must be excluded and I order accordingly. 

							   		O.G. Paulsen 
NUKU’ALOFA:   10 OCTOBR 2018. 	     	   		 LORD CHIEF JUSTICE