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Police v Vailopa [2009] WSCA 11 (9 October 2009)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 14/09

BETWEEN:

POLICE
Appellant

AND:

IKILASI ISUMU VAILOPA
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Fisher
The Honourable Justice Slicer

Hearing: 7 October 2009

Counsel: S L Petaia and P Chang for appellant
R V Papalii for respondent

Judgment: 9 October 2009

JUDGMENT OF THE COURT

The appeal is dismissed

REASONS OF THE COURT

1. The Attorney General alleges that the respondent Ikilasi Raymond Isumu Vailopa, then aged 15, made admissions of guilt following his arrest and detention on a charge of murder. The Attorney appeals under s 164B of the Criminal Procedure Act 1972 (CPA) with leave of the Supreme Court against its decision, delivered by Nelson J, excluding evidence of the alleged admissions.
   
2. There are three alleged admissions. While we agree with the Judge’s decision that each must be excluded, the reasons for our conclusions differ from one episode to another.
   

The first alleged admission

3. On 29 September 2008 the respondent was interviewed by the police following the death of the victim on 20 September resulting from an altercation at the Fugalei market seven days previously. The respondent’s mother was present throughout the interview. The respondent gave an account denying responsibility and blaming another youth, Oloa. But later that day Oloa identified the respondent as involved in the incident and that evening the respondent was arrested and charged.
   
4. On 30 September the police took the respondent, still in their custody, to the police station to be remanded before a Court registrar. Whether coincidentally or not, Oloa was brought in while the respondent was there. On 30 June 2009 at a depositions hearing two police witnesses deposed that on 30 September the respondent, on seeing Oloa, spontaneously called out that he wanted to tell them what exactly happened, to change what he had said the previous day, and to admit that he had hit the victim.
   
5. Surprisingly, there was no notebook entry of such a startling development in a homicide enquiry. Prior to the notes of the depositions hearing the only written material saying anything about this supposed spontaneous admission was the reference to it in the written statement dated 30 September which contains the second alleged admission, discussed at [9] below. That document began with an account by the interviewer, Corporal Kid Roache, of the victim’s death and continued:
   

Q Do you understand about this matter?

A Yes I understand

Kid: I have informed him about Oloa Tom coming in and stated that the person he punched is different from the person mentioned by Ikilasi and Ikilasi stated "It’s correct I was the one that punched the person who died because he punched me first then I punched him.

A caution followed and the interview proceeded.

6. There is doubt about the meaning of the passage following the reference to "Kid". One possible reading is that at the interview immediately before the statement was begun Corporal Roache told the respondent about Oloa having come in and then mentioned the respondent’s statement, described by the two officers as spontaneous. Another is that the passage refers to the event earlier in the morning when the respondent made the "spontaneous" admission which had, however been triggered by the statement by Corporal Roache and so was not spontaneous at all.
   
7. Since the prosecution evidence has failed to resolve the doubt that would suffice to have the statement found to be non-spontaneous, with the consequences discussed at [13] below.
   
8. But the Judge did not accept the officers’ evidence about the taking of the statement. It is a concise document, containing in addition to prefatory material only ten short questions and quite brief answers. It is difficult to understand how it could have taken from 11.22am to 1.44pm to complete, as it says on its face, albeit with an overwriting in ink of whatever was replaced by the 11.22 entry. Nelson J used his doubts as to the veracity of what he was told about the second statement to influence his decision to reject the first. It is always difficult to overrule a conclusion on credibility of the judge who heard and saw the witnesses. The combination of that problem and the doubt discussed at [6-7] means that we are not persuaded that the Judge’s decision on the first "admission" was wrong.
   

The second alleged confession

9. The police elected to undertake the second formal interview of the respondent not only of a prisoner in custody on a murder charge, but without the precaution adopted the previous day in respect of the first, the previous day, of arranging for his mother to be present. There is a dispute, which we do not need to resolve, as to whether the respondent’s mother was actually at the police station when the interview was undertaken. If she was not any further interview could have been deferred until she was present.
   
10. We do not need to consider the significance of fact that the respondent was interviewed while in custody, a topic to which the New Zealand Chief Justice’s Practice Direction under the Evidence Act 2006 is germane because of the proviso to s 3 (1) of the CPA:
    

...as to any matter of criminal procedure for which no specific provision has been made...the law as to criminal procedure for the time being in force in New Zealand shall be applied...

That is because we agree with the Judge that the absence from the interview of the respondent’s mother or another suitable supporting adult requires that evidence of it be excluded. There are several reasons for that.

(1) The policy of the Parliament of Samoa

11. The statute law of Samoa includes the Young Offenders Act 2007. Its long title calls it
    

An Act to provide a criminal justice system for Young Persons, their treatment by the courts, and related purposes.

Section 9 states:

Rights of a Young Person - A Young Person [over ten and under 17] is entitled to:

(a) receive independent legal advice; and

(b) the attendance of his or her parent and/or caregiver or any member of his family at the hearing of proceedings where it is practical to do so; and

(c) apply for legal aid.

12. The section does not in terms deal with the rights of a young person at the previous enquiry stage. But Parliament’s policy, expressed with clarity in respect of the hearing phase, will be given effect by the courts when determining how the common law is to be formulated in analogous situations. If it is necessary for the young person to have the presence of a s 9(b) person at the hearing, it must be no less important for him to have such support at the critical earlier stage which may well dictate what happens at the later court hearing.
    

(2) The proviso to s 3(1) of the C PA and New Zealand criminal procedure

13. We have cited the relevant passage at 10 above. New Zealand law is contained in the Children, Young Persons of the CPA and their Families Act 1989. Save in the case of a truly spontaneous statement (discussed in S v Police [2006] NZHC 227; [2006] NZFLR 961 per Baragwanath and Heath JJ), no oral or written statement to a police officer is admissible unless the statement is made in the presence of a lawyer or a person equivalent to the "s 9(b) person" under the Samoan Act (12 above). The leading decision, which gave effect to the plain language of the New Zealand legislation, is R v Irwin [1992] 3 NZLR 119 per Fisher J. R v T [1996] NZFLR 961 per Baragwanath J is to similar effect.
    

(3) The International Convention on the Rights of the Child

14. Samoa is party to this Convention which received extensive consideration by Lord Cooke in the leading New Zealand decision Tavita v Minister of Immigration CA 226/93 30 November 1993 and by Nelson J in this case. While not referring specifically to police interviews its overall thrust is in the same direction as the New Zealand jurisprudence. Tavita states the presumption that a state’s domestic law is construed by its judges in a manner that will conform with its obligations incurred by other limbs of government. That approach is required of this Court.
    

(4) The standards of other states against which Samoa benchmarks itself

15. As a leading exponent of the rule of law Samoa is entitled to have its judges apply the standards of like states. That approach is evidenced by the Samoan cases in other fact situations cited by the Judge. The standards in Australia are comparable to those in New Zealand; for example the Children (Criminal Proceedings) Act 1987 (NSW) has similar protection for children being interviewed. Nelson J has marshalled other authorities from Pacific jurisprudence which makes it unnecessary to lengthen this judgment by citing them. It is enough to cite his conclusion:
    

Samoa should not be hesitant to take its place amongst the nations of the world active in this struggle [for the protection of children].

His judgment and others cited show that Samoa has already done so.

16. That is not to overlook the legitimate calls of the community to bring offenders to justice. The point concerns the procedures by which that is done. The lessons of this case include:
    
    1. the need for important events to be the subject of a contemporaneous written note;
    2. the need for a written document, for which the New Zealand police have a model, setting out proper practice to which police officers may refer when considering how to manage a young criminal suspect
       
17. We would add that, when resources permit, the provision of video interview facilities and, failing that, an audio interview would provide the courts of Samoa with the advantage experienced in Australia and New Zealand of an end to protracted arguments about what was said and in what context.
    

The third alleged admission

18. The final alleged admission was one said to have been made orally by the respondent over a cigarette to an officer following the second interview. The Judge rejected it for the same reasons of credibility discussed in relation to the first episode. We agree and add two further reasons.
    
19. One is that, since we have rejected the first and second alleged admissions, it would be incumbent on the prosecution to establish that they were not the cause of the third. That cannot be established.
    
20. The other is that the evidence first emerged at the depositions hearing; indeed prosecution counsel were taken by surprise. If there was in fact an admission worth taking seriously it should have been recorded (it was not) and communicated to counsel on both sides in the normal way.
    

Result

21. The appeal is dismissed.
    

Observation

22. We express our thanks to counsel on both sides for the clear and candid submissions which have been of particular assistance.
    

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher