IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 24/93

SUPPRESSION ORDER:
SEE P.12

BETWEEN

ATTORNEY-GENERAL
Appellant

AND

SEMI TUPAI UETI
Respondent

Coram: The Rt. Hon. Sir Robin Cooke, President
The Rt Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 25 March 1994

Counsel: M.B. Edwards for Appellant
P. Fepulea'i for Respondent

Judgment: 5 May 1994

JUDGMENT OF THE COURT DELIVERED BY SIR ROBIN COOKE

At a trial before the Chief Justice and Assessors in December 1993 the present respondent was found not guilty of murder or manslaughter. The Attorney-General appeals on the ground that, after a voir dire hearing, a signed police statement made by the accused, under caution, on Sunday 1 August 1993 was ruled inadmissible and accordingly was not put in evidence by the prosecution at the trial. A second signed statement obtained by the police from the accused on 6 August 1993 was likewise ruled inadmissible. There is no challenge to the second ruling.

On the night of Saturday 31 July 1993 the accused and some friends were drinking together in the accused's fale. There was noise and music and allegedly the calling out of the word ususu (a warrior's challenge). Some other men, including the deceased, threw stones at the fale. Those in the fale came out, though not all at the same time. The evidence is that a brother of the accused was the first out, followed by the accused. There was fighting, including fighting between the deceased and the accused. The deceased received at some stage two serious stab wounds - one in the back and one under an armpit - and also a scratch. On the following evening he died in hospital. The medical evidence is that death was caused by the wound in the back. There is evidence that the accused's brother owned a knife but that the accused sometimes used it. This knife could have caused the deceased's wounds. There is also evidence that on the morning after the episode the accused handed the knife to another witness.

The police statement in question on the appeal was taken by Corporal Sefo Kelekolio at Tuasivi Police Station at an interview commencing at about 3 p.m. on the Sunday. At the beginning of the interview the corporal obtained an oral admission from the accused that it was he who had stabbed the man, who was still alive at that stage. The prosecution did not seek to have evidence of this oral statement admitted at the trial; it is acknowledged that at that stage the accused was under de facto arrest, and no warning of any kind had been given to him.

The accused said on the voir dire that he had made similar oral admissions earlier that day at Fagamalo, first to Constable Tasi Ainuu and then separately to Corporal Sefo. The corporal denied this so far as he was concerned; the other officer did not give evidence on the voir dire or at the trial. The prosecution did not seek to tender evidence of any admissions at Fagamalo.

After the oral admission at the Tuasivi station the corporal began taking the formal statement. It is in Samoan. Early in the statement there is a record of a reference to a solicitor. At the hearing of the present appeal it was accepted that this reference is correctly translated as follows: 'I have been informed that I have a right to contact a solicitor to represent me and I have been shown a list of solicitors and their telephone numbers but I think there will be another time for it'. Next there is recorded a caution that the accused was not obliged to say anything unless he wished to do so, but whatever he said would be taken down in writing and might be given in evidence. The statement goes on to record the accused's account of the episode. It includes admissions to stabbing the victim's back about three times. After the statement he was charged with causing actual bodily harm.

As regards what was said at Tuasivi on 1 August 1993 about a lawyer, the evidence on the voir dire of Corporal Sefo Kelekolio and Constable Esau Poe and that of the accused himself do not materially differ. The accused's account, in his evidence-in-chief on the voir dire, was as follows:

Q. So you came to Tuasivi with 3 police officers as well as 2 others, is that right?
A. Yes.
Q. You got to Tuasivi and then they interviewed you again, is that right?
A. Yes.
Q. And then it was also Corporal Sefo took charge of that interview?
A. Yes.
Q. Were you asked by at any stage whether you wanted to contact a lawyer?
A. Yes.
Q. And what did you say?
A. I replied, later on, some other time until my father arrive and we talk.
Q. In there you saw a chart on the wall with a list of lawyers and telephone numbers?
A. Yes.
Q. After you told him that, what happened next?
A. My statement was typed.

The issue in the appeal turns on article 6(3) of the Constitution of the Independent State of Western Samoa, which provides:

Right to personal liberty

6.
(3) Every person who is arrested shall be informed promptly of the grounds of his arrest and of any charge against him and shall be allowed to consult a legal practitioner of his own choice without delay.

The duty of the person arresting is expressed in similar terms in s. 9(1) of the Criminal Procedure Act 1972.

In Police v. Va'asili Piula (C.A. 2/93; judgment February 1993) the Court of Appeal (Morling, Reynolds and Roper JJ.) expressed the opinion that, although there is no express requirement in article 6(3) to inform the arrested person of his right to counsel as in other jurisdictions, it may well be that an unexpressed requirement to that effect is to be imported into the article. They understood that providing the information was a standard practice in Western Samoa and they expressed the view that it should continue. We fully agree. Indeed Mr Edwards for the Attorney-General accepted that there is an implied obligation in article 6(3) to inform the arrested person promptly of his right to a lawyer. This point may now be taken to be settled.

Plainly the information, to be of value and to give due effect to the constitutional provision, should be conveyed before any statement is taken. And it should be made clear that, if the person arrested wishes to consult a lawyer, any questioning will be deferred for a reasonable time to enable the person to obtain legal advice. For, if the right to counsel is to be effective, the police must refrain from eliciting evidence until the accused has had a reasonable opportunity to consult counsel: R. v. Manninen (1987) 41 D.L.R. (4th) 301; R. v. Taylor [1993] 1 N.Z.L.R. 647. What is a reasonable time will be a question of fact depending on all the circumstances: R. v. Etheridge (1992) 9 C.R.N.Z 268. In this case it might have been difficult to contact a lawyer on the Sunday afternoon, but there was no particular urgency and no reason why the interview could not have been delayed until the Monday.

No particular words are required to be used by the police officer, as long as what is said brings home to the particular accused the substance of his right to legal advice without delay. It is necessary that the accused should understand his right. If the officer reasonably considered that what he said did result in an understanding of the right by the particular accused, the court will ordinarily infer in the absence of evidence to the contrary that the accused did understand his right. See R. v. Mallinson [1993] 1 N.Z.L.R. 528; R. v. Mallinson (No. 2) (1992) 9 C.R.N.Z 691, [1990-92] 3 N.Z.B.O.R.R. 149; R. v. Pulemoana (C.A.N.Z. 402/93; judgment 11 November 1993); R v. Walker and Hutchings (C.A.N.Z. 342 & 343/93; judgment 9 December 1993). The important point, made clear in these cases, is that the ultimate question is always subjective. It is whether, on all the evidence before the Judge asked to rule on the issue, the particular accused understood that he had a right to a reasonable opportunity to obtain legal advice before any continuation of the interview.

In the ruling now under appeal it is recorded that there was no dispute that, when interviewed by the police corporal on both 1 and 6 August 1993, the accused was under arrest. The ruling excluding the signed statement of 1 August is based on the view that to tell the accused that he had a right to contact a lawyer or a solicitor was somewhat ambiguous and not enough to bring home to the accused the nature of his right: it could have been interpreted by the accused to mean that he had a right to contact a lawyer but at some other time.

In his argument for the Attorney-General on the appeal, Mr Edwards accepted that the accused was under de facto arrest at the material time and that sufficient information of the right to legal advice should have been given. Mr Edwards submitted, however, that the accused's answer to the effect that he would wait until later showed an appreciation that he could have elected to have such advice before the interview proceeded. On the other hand Mr Fepulea'i, supporting the ruling under appeal, submitted that, bearing in mind that this was a Sunday and that the telephone numbers on the wall chart pointed to by the corporal were office numbers, the police officer was merely going through the motions.

The reference to contacting a lawyer certainly could have been ambiguous and misinterpreted, but the accused himself in his evidence on the voir dire did not claim that he had been misled by it in any way or that he did not understand his right. His evidence was only that which we have already mentioned - that to the question whether he wanted to contact a lawyer, he replied later on, some other time, until his father arrived and they talked. It must be remembered as well that, according to his own evidence, he had already orally admitted on three occasions to having committed the stabbing. We do not consider that his evidence supports the argument that he was inadequately informed and lacked understanding of his right. The more obvious inference is that he was willing to make a statement without legal advice at that stage. As Mr Edwards submitted, the accused did not assert in evidence that he was confused, and in the particular circumstances that should be an end of the matter. On the evidence as a whole the claim of a breach of article 6(3) has been negatived.

Accordingly we must hold the signed police statement of 1 August 1993 admissible and allow the appeal.

There was an alternative submission for the Attorney-General that, even if the accused's fundamental right had been infringed, the statement should be admitted in the court's discretion. On the foregoing view this question does not arise, but it is desirable to say something about it. The principles evolved by the New Zealand Courts are that, where there is an evidential foundation for the view that a confession has been obtained by breach of the Bill of Rights, the onus is on the prosecution to negative that conclusion on the balance of probabilities; and, if the breach is not so negatived, the statement should prima facie be ruled out in the absence of some special reason making it fair and right to admit it. The mere facts that the police acted in good faith or that there is other evidence (in the form of alleged admissions or otherwise) pointing to the accused's guilt are not such special reasons. Nor, even more obviously, are the seriousness of the offence charged or a likelihood that the prosecution will fail unless the statement is admitted. See generally Police v. Kohler [1993] 3 N.Z.L.R. 129; R. v. Te Kira [1993] 3 N.Z.L.R. 257.

We see no reason why those principles should not apply in Western Samoa. While an exhaustive statement cannot be made of what may constitute special reasons for departing from the prima facie rule of exclusion, we can see nothing in the circumstances of this case which could have taken it out of that rule. If the finding of a breach of the accused's constitutional right had stood, we would not have disturbed the decision of the Chief Justice excluding the statement.

In this context we should mention that an obiter passage in the judgment in Piula (supra) is perhaps open to the interpretation that, although the onus is on the prosecution to persuade the Judge to admit a statement obtained in breach of the accused's constitutional rights, the matter is to be approached simply as if the evidence had been obtained by any form of illegal means. Illegality in breach of the Constitution or a Bill of Rights is, however, especially serious; this is the reason for the prima facie rule of exclusion; and in our respectful opinion it would not be right to suggest that the Judge has a discretion which could be used so as to whittle away the constitutional protection. It may well be that the Court in Piula did not intend to suggest otherwise.

The Attorney-General's notice of appeal included grounds attacking the summing up insofar as it left provocation to the Assessors and directed them that they could take into account the intoxication of the accused when considering whether a reasonable person would have lost self-control. These grounds were not pursued at the hearing of the appeal, because the verdict of the Assessors showed that they had not needed to consider provocation. As a new trial is being ordered, it may be helpful if we refer briefly to this subject.

A possible defence of provocation, reducing murder to manslaughter, is not lightly withdrawn from a jury and here we think that the evidence of the stone-throwing made the Chief Justice's decision to leave provocation to the Assessors appropriate. There is no doubt that the accused's drunkenness (if such it was) fell to be taken into account in considering whether the accused in fact lost self-control. But, on the further and equally important question whether an ordinary person with the characteristics of the accused would have been provoked to lose self-control, the accused's temporary drunkenness does not rank as a characteristic to be attributed to the ordinary person: R. v. Camplin [1978] A.C. 705, 725; R. v. McCarthy [1992] 2 N.Z.L.R. 550, 558.

For the reasons previously given, the verdict at the first trial must be set aside and a new trial will be ordered. Clearly the written statement of 1 August 1993 is of sufficient importance to justify a new trial, as in its absence the Assessors had no direct evidence of the identity of the stabber.

There will be an order prohibiting the publication of any report or account of the contents of this judgment until the conclusion of the new trial.

Solicitors:
Attorney-Generals Office, Apia, for Appellant
Patrick Fepulea'i, Apia, for Respondent