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Toalepai v Attorney General [2025] WSCA 4 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Toalepai v Attorney General [2025] WSCA 4 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

ENELI ATURU TOALEPAI

Appellant

AND:

ATTORNEY GENERAL

Respondent

Hearing: 9 June 2025

Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young

Hon. Justice Nelson

Appearances: A. Matalasi for the Appellant
L. Strickland for the Respondent

Judgment: 19 June 2025

JUDGMENT OF THE COURT

Overview

1. In late January 2024 the appellant was living with and working for a pastor (Mr Ricky Westerlund) and his wife at Fiaga. His mother and his stepfather (Mr Maulolo Poumaa) had recently come to live nearby.
2. The appellant is charged with murdering Mr Poumaa sometime around 9.00pm on 27 January 2024. The prosecution alleges that:
   • (a) During the evening of 27 January, the appellant and Mr Poumaa had been together at Fiaga and then walked to a shop at Aleisa.
   • (b) After Mr Poumaa had done his shopping and both men were in the vicinity of the shop, an argument broke out between them.
   • (c) The appellant smashed a bottle that he was carrying on the road and used the part of the bottle that remained in his hand to stab Mr Poumaa a number of times and then slashed his legs with a machete.
   • (d) Mr Poumaa died as a result of the injuries inflicted on him by the appellant.
3. At around (or perhaps a little earlier than) 11.00pm, the appellant arrived at Motootua Hospital in Apia with the body of Mr Poumaa.
4. The appellant accompanied police officers to the nearby police station where Corporal Tuli Filipo took a written statement from him. This process started shortly after midnight. The appellant gave an exculpatory account of events.
5. After the statement was concluded, the appellant left the police building (and possibly the police station area) in the company of Mr Westerlund while Corporal Filipo spoke briefly to the appellant’s mother. When he finished talking to the appellant’s mother, Corporal Filipo then rang Mr Westerlund and asked him to bring the appellant back, which Mr Westerlund did. The appellant came back into the police station at around 1.00am on 28 January. From this point he either remained at the police station or was in the company of police officers until he was charged with murder (and other associated offending) at 11.17pm the same day. He was thus with the police for around 22 hours.
6. On the State case, in the latter part of that 22 hour period, the appellant made an oral confession of murdering Mr Poumaa to Constable Siemu Su’a and later, in a caution interview conducted by Sergeant Peniamina Perite, confessed again to Mr Poumaa’s murder,
7. The appellant challenged the admissibility of both the alleged oral admission and the caution interview. His challenge was heard by Clarke J who held that the oral admissions were inadmissible but that evidence at the caution interview could be led at trial.
8. The appellant now appeals against the judgment of Clarke J.

Interactions between the appellant and the Police – the evidence

A chronology

9. It is not easy to follow what happened without a good understanding of sequence of events. This sequence involved:
   • (a) The initial engagement at the morgue. This was when police officers first came into contract with the appellant. It occurred late on 27 January.
   • (b) The appellant’s written statement at the police station. After the meeting at the morgue, the appellant went to the police station. His written statement commenced at 12.18 am on 28 January. It was taken by Corporal Filipo.
   • (c) The appellant left the police station and Corporal Filipo spoke to his mother.
   • (d) The appellant returned to the police station where he stayed until he and police officers went to Fiaga/Aleisa sometime in the morning of 28 January.
   • (e) The police and the appellant were at Fiaga/Aleisia.
   • (f) The police took the appellant back to the police station where he spoke to Constable Su’a.
   • (g) Sergeant Perite and Constable Su’a took the appellant back to Fiaga and then returned him to the police station.
   • (h) The appellant was interviewed under caution at the police station. This interview started at 9.52pm on 28 January.

The initial engagement at the morgue

10. Police officers, including Corporal Filipo, went to the hospital at some time between 11pm and midnight on 27 January. There they met the appellant and his two younger brothers. On Corporal Filipo’s evidence the appellant behaved strangely while beside Mr Poumaa’s body in the morgue.

The appellant’s written statement at the police station

11. The police took the appellant and his siblings back to the police station to interview them. As noted, the police officer who interviewed the appellant was Corporal Filipo with the interview starting at 12.18 am. The appellant told Corporal Filipo that his name was Pita Maulolo. He said that he and Mr Poumaa had been together in the late afternoon of 27 January, but that Mr Poumaa had left to go to a shop at Aleisa at around 6.00pm. He went on to say that when Mr Poumaa did not return, he walked towards the shop hoping to meet him. On his way towards the shop, he found Mr Poumaa’s body. This was around 150 to 200 metres away from the shop.

The appellant left the police station and Corporal Filipo spoke to his mother.

12. Shortly after Corporal Filipo finished recording the appellant’s statement, he spoke to the appellant’s mother. She told him the appellant’s correct name. She also gave him other information about the family background, including the appellant’s involvement in an incident involving a machete. By this stage, the appellant was no longer at, or at least inside, the police station. As noted, Corporal Filipo then asked Mr Westerlund to bring the appellant back.

The appellant returned to the police station where he stayed until he and police officers went to Fiaga/Aleisa sometime in the morning of 28 January

13. The appellant returned to the police station as requested.
14. There followed further interactions between Corporal Filipo and the appellant that appear not to have been recorded and which are very much are in dispute.
15. According to Corporal Filipo, he spoke to the appellant about the name he had given him (Pita Maulolo) and his correct name and told him that he would be required to go with the police to Fiaga and Aleisa to flesh out what he had said by reference to the scene of the crime.
16. The appellant had a very different account. He said that Corporal Filipo accused him of murdering Mr Poumaa and directed that he be handcuffed and there followed a prolonged interrogation in which he was asked “questions after questions”. In the course of this, a female police officer gave him cookies and a bottle of water, but Corporal Filipo took the cookies and ate them and told him that if he did not tell the truth he would not be fed. Eventually Corporal Filipo left him and went away to sleep.
17. In his evidence in chief, Corporal Filipo did not address what happened between his discussion with the appellant as to his name and the later departure for Fiaga/Aleisa. In cross-examination, however, he denied accusing the appellant of being a liar. He also denied that there had been an incident involving cookies and water or that he had interrogated and threatened the appellant. He further denied that the appellant was hand-cuffed.
18. Pausing at this point we note that the appellant’s position is that he remained in hand-cuffs until at least the end of the caution interview, a proposition that was denied by Corporal Filipo and Constable Su’a.

The police and the appellant were at Fiaga/Alesia

19. Sometime in the morning of Sunday 28 January, Corporal Filipo and other police officers took the appellant to Fiaga and Aleisa. The policy party included Sergeant Perite. When this trip started is not clear. Corporal Filipo said that it started at 5.00-6.00am while the appellant suggested that it was a little later, between 8.00 and 9.00 am. There was also disagreement about when Corporal Filipo and the appellant returned to the police station, with the Corporal saying it was in the late afternoon or early evening and the appellant saying it was at lunch time.
20. During the morning, the appellant repeated his explanations of the night before by reference to the various locations at Fiaga/Aleisa that had featured in his narrative. As well, the police collected exhibits (such as clothing that the appellant had been wearing and a cell phone) and Corporal Filipo reviewed security camera footage from the shop to which Mr Poumaa had gone. This revealed that the appellant had been with Mr Poumaa when he had arrived at the shop and thus gave the lie to the written statement that Corporal Filipo had taken from him.
21. The appellant said that throughout the day, Corporal Filipo continued to swear at him. This was denied by Corporal Filipo. The appellant also said that before they left the scene, they stopped at Mr Westerlund’s house and that while one or more police officers went into the house, he remained in the car where he was sworn at by one police officer and assaulted by another. All of this was denied by Corporal Filipo.

The police took the appellant back to the police station where he spoke to Constable Su’a.

22. After Corporal Filipo and the appellant returned to the police station, Corporal Filipo went off duty.
23. Constable Su’a had spent most of the daylight hours of 28 January at Fiaga/Aleisa. He arrived at the police station in the late afternoon or evening of that day.
24. Constable Su’a’s evidence was that he and the appellant went outside the police station, to what the Judge described as “an outdoor smoking area adjacent to the CID” to smoke cigarettes and, while they did so, engaged in general chatter. Despite the discussion not focussing on the events of the previous day, the appellant volunteered that he had killed Mr Poumaa and provided reasonably elaborate detail of what had happened. On Constable Su’a’s evidence, he then (that is after the admissions were made) informed the appellant of his legal rights and informed his superior, Sergeant Perite of the confession. He did not claim to have cautioned the appellant once he started to make his admissions. As well, he did not take a contemporaneous note of his interactions with the appellant.
25. The appellant’s account of his engagement with Constable Su’a is that the Constable told him that it would be better for him if he told the truth and that when he continued to deny killing Mr Poumaa, the Constable became hostile. He said that it was then that Sergeant Perite became involved. He forced the appellant’s hands against the handcuffs he was wearing and then punched his jaw. The Sergeant then told him that unless he admitted the murder he would be beaten all night. His subsequent admissions were a response to that threat. Constable Su’a denied all of this.

Sergeant Perite and Constable Su’a took the appellant back to Fiaga and then returned him to the police station

26. Our understanding of the evidence is that before the appellant was interviewed formally under caution, he was taken by Sergeant Perite and Constable Su’a back to Fiaga where a knife/machete was picked up from Mr Westerlund’s house. As well, they collected a bag of the appellant’s clothes and Mr Westerlund gave the appellant $100.
27. On the way back to the police station, they stopped at a shop where spray and cigarettes were acquired. On the appellant’s evidence, which in this respect was denied by Constable Su’a, Sergeant Perite took the cigarettes for his own use and the two police officers kept the $40 change.

The appellant was interviewed under caution at the police station

28. The interview commenced at 9.52 pm and finished at 11.17 pm. In this interview the appellant again confessed to the murder of Mr Poumaa.
29. There was a conflict of evidence between Constable Su’a and the appellant as to whether his rights were properly explained to him. The signed record of the caution interview records the way in which the appellant’s rights were explained to him. We note that the appellant signed under each of the separate explanations of those rights as recorded in the record of the caution interview.

Additional comments

30. There are three additional aspects of the evidence which warrant brief mention:
    • (a) As will be apparent, Corporal Filpo and Constable Su’a did not keep contemporaneous notes of their interactions with the appellant. This meant their evidence as to the timings and precise nature of those interactions was vague.
    • (b) The narratives given by Constable Su’a, Corporal Filipo and the appellant were not particularly contextual. For instance, Corporal Filipo did not give any substantial account of what happened between his discussion with the appellant when he returned inside the police station at about 1.00am on 28 January and their departure for Fiaga/Aleisa later that morning. Nor did he deal with what the appellant was doing between his return from Fiaga/Aleisa and when he (Corporal Filipo) went off duty. In his evidence in chief, Constable Su’a did not mention the trip to Fiaga to pick up the knife/machete. And the appellant’s evidence too was light on context. He did not set out to provide a comprehensive account of for instance what opportunities if any he had for sleep or to take meals.
    • (c) Sergeant Perite did not give evidence. This is because in July 2024 he was killed while on duty.

The judgment of Clarke J

31. The Judge resolved credibility issues between the police officers and the appellant generally in favour of the former. In particular, he rejected the appellant’s allegations that he had been hand-cuffed throughout and subject to physical violence (actual or threatened). He did, however, accept the evidence of the appellant in relation to the cigarettes, spray and change on the way back from Fiaga the second time. He also accepted that Corporal Filipo accused him of lying in relation to the name he gave when first interviewed on 28 January. As to the caution interview, he was firmly of the view that the appellant had been properly given the required explanations, and in the way indicated in the record of the interview.
32. Despite resolving credibility issues generally in favour of the evidence of the police officers, the Judge concluded that the appellant should have been cautioned before Constable Su’a spoke to him during the evening of 28 January. This was because:
    • (a) Once Corporal Filipo had seen the CCTV footage of the appellant at the shop at Aleisa, the police must have viewed him as a suspect.
    • (b) The appellant had been “arrested” in a de facto sense when the police asked him to return with them from Fiaga to the police station at around lunch-time on 28 January.
    • (c) Constable Su’a should not have talked to the appellant at all without cautioning him.

He also concluded that the whole sequence of events meant the caution interview had been obtained improperly.

33. In determining whether exclusion of the evidence was proportionate to the impropriety, the Judge excluded the oral admissions made to Constable Su’a but upheld the admissibility of the caution interview. His reasons in relation to the caution interview were as follows:
    • Whilst I accept on the balance of probabilities that the caution statement was improperly obtained, I am not satisfied that the exclusion of the evidence is proportionate to the impropriety. The police failure to inform the accused promptly of his arrest and to caution him was not in my view in bad faith nor reckless but unintentional and inadvertent. The key requirements of article 6(3) and s 32 are the accused be informed of his arrest, what [the] grounds are, of any charges and that he or she be informed of his right to silence and right to counsel. Although the accused was not promptly cautioned on his arrest (de facto or otherwise) he was cautioned twice before making the caution statement; first by Constable Su’a following his alleged verbal confession and subsequently by Sergeant Perite during the caution interview remedying the oversight before his interview. In my assessment the exclusion of the caution statement in circumstances is disproportionate to the impropriety.
34. The Judge rejected on the facts the contention that the caution interview had been obtained by oppression.

The constitutional and legislative framework

Article 6 of the Constitution of the Independent State of Samoa

35. This relevantly provides:
    • 6. Right to personal liberty –
    • (1) No person shall be deprived of his personal liberty except in accordance with law ...
    • (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.
    • (4) Every person who is arrested or otherwise detained shall be produced before a Judge of the Supreme Court, some other judicial officer, the Registrar of the Supreme Court or of any subordinate Court or any Deputy Registrar of the Supreme Court or of any subordinate Court from time to time approved in writing for this purpose by the Registrar of the Supreme Court ... within a period of 24 hours (excluding the time of any necessary journey), and no such person shall be detained beyond that period without the authority of one of the remanding officers.

Section 32(1) of the Criminal Procedure Act 2015 provides:

36. This provides:
    • 32. Duty of persons arresting –
    • (1) A constable or law enforcement officer, who is arresting another person must inform the person arrested on all of the following: (a) the right not to say anything unless the arrested person wishes to do so; and (b) the right to consult a lawyer; and (c) the grounds of arrest and any charge against the arrested person.
37. We will refer to the information that an arresting officer must provide under s 32(1) as “the required advice”. As will be apparent the required advice covers the information required to be given under art 6(3) of the Constitution but also extends to advice as to the right of silence.

Sections 20 and 21 of the Evidence Act 2015

38. Section 20 deals with improperly obtained evidence. Under s 20(2), where there is an issue as to whether evidence was obtained improperly,
    • (2) The Judge must:
    • (a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
    • (b) If the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and also takes proper account of the need for an effective and credible system of justice.
39. Section 20(3) provides:
    • For the purposes of subsection (2), the Judge may, among any other matters, have regard to the following:
      • (a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it;
      • (b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith;
      • (c) the nature and quality of the improperly obtained evidence;
      • (d) the seriousness of the offence with which the defendant is charged;
      • (e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used;
      • (f) whether there are alternative remedies to the exclusion of evidence which can adequately provide redress to the defendant;
      • (g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others;
      • (h) whether the impropriety arose from circumstances of danger or urgency;
      • (i) whether the impropriety arose from a genuine misunderstanding, accidental or unintentional infringement.
40. We note that s 20(7) provides:
    • Without limiting subsection (5)(c), in deciding whether a statement obtained by a police officer has been obtained unfairly, the Judge must take into account any directions on the subject issued under this subsection by the Chief Justice or rules of the court.

As we understand it, no directions or rules of court have been issued under this subsection.

41. Section 21 provides for the exclusion of statements influenced by “oppression”. “Oppression” is defined in s 21(5) in this way:
    • (4) In this section, “oppression” means the deliberate exercise of violence on or the inhuman or degrading treatment of the defendant by a police officer.

The legal framework

42. Art 6(3) of the Constitution and s 32(1) of the Criminal Procedure Act impose obligations on the police that are triggered by an arrest. This gives rise to some difficulties, as we will now explain.
43. The general legal position is that an arrest is not effected until:
    • (a) The arresting officer has made clear an intention to apprehend and to hold the suspect (in the sense of that the suspect is deprived of the liberty to go where he or she pleases).
    • (b) The arresting officer is at least purporting to act under legal authority, And:
    • (c) Either by submission or the use of force, the suspect comes under the control of the arresting officer,

All of this is discussed at great length in the judgments of the New Zealand Court of Appeal in R v Goodwin.^[1]

2. In general, a police officer is only entitled to arrest a suspect if he or she believes on reasonable grounds that the suspect committed the offence in question.^[2] A police officer should therefore not effect an arrest on the basis of suspicion only.
45. Normal police practice is to defer, if possible, the formalities of arrest until after a suspect has been interviewed. This is understandable as it will often be only after the investigating officer has heard what the suspect has to say that he or she could claim to believe (which denotes a substantial measure of confidence) on reasonable grounds (that is grounds that justify that confidence) that the suspect committed the offence.
3. As will by now be apparent, whether a person has been placed under arrest and, if so when, may turn on evaluative judgments. Some of the difficulties that arise are apparent from what Richardson J said in Goodwin as to when an arrest has occurred:^[3]
   • Given the various conflicting public interest considerations and philosophical perspectives involved it is perhaps not surprising that such an inquiry has attracted a range of responses stressing different factors across a wide spectrum and including: (1) whether the arresting officer intends to arrest the person concerned; (2) whether by words and/or conduct the officer manifests an intention to arrest; (3) whether the police have sufficient grounds to arrest; (4) whether the interviewee believes that he or she is not free to leave; (5) whether the interviewee believes that he or she is being held on suspicion of having committed an offence; and (6) whether a reasonable person in the interviewee's situation would believe he or she was: (a) not free to leave; or (b) being held on suspicion of having committed an offence. On a continuum (1), and (4) and (5) are the subjective extremes; (2) and (6) are objective approaches, (2) from the perspective of the "arrester" and (6) from the perspective of the "arrested"; and (3) is also objective but reflecting an entitlement to arrest rather than a restraint arising from its exercise.
4. The rationale underlying the obligation to give required advice (particularly as to silence and legal counsel) to suspects who have been arrested is that they are under the control of police officers and thus may see themselves as having no choice but to answer any questions that are asked. In this context the courts have recognised that questioning of suspects in custody is inherently coercive.^[4] This rationale is engaged when the reality of the situation is that a suspect will not be allowed to leave the police station (or the company of the investigating officer). For this reason, the courts have generally taken the view that obligations to advise as to legal rights can be triggered when the suspect is “in custody” in this extended sense. There are two ways in which this result can be arrived at.
48. One is to take a broad view of “arrest” when used in the statutory provisions addressed to required advice obligations. This appears to have been the approach favoured by Cooke J in Goodwin v R, but rejected by the majority in that case.
49. The other and simpler approach is to treat obligations to advise about legal rights as triggered by events, or stages in the process that do not necessarily involve, and in particular may occur before, arrest. This is the approach that we favour. And it has a long history.
50. Rules 2 and 3 of the Judges Rules as promulgated in England and Wales in 1912, provided:
    • 2 Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any questions or further questions, as the case may be.
    • 3. Persons in custody should not be questioned without the usual caution being first administered.

The “usual caution” referred to the right of silence and advised that anything that the suspect said would be taken down in writing and could be given in evidence.

5. The Judges Rules have often been been applied in Samoa in the past, albeit that the last decision we were able to locate in Paclii where this has happened was in 2013.^[5] The absence of more recent reliance on the Judges’ Rules is likely to be because lawyers have come to see s 32(1) of the Criminal Procedure Act as occupying the ground.
52. In New Zealand, the Chief Justice’s Practice Note on Police Questioning issued under s 30(6) Evidence Act 2006 NZ (to the same effect as s 20(7) of the Evidence Act) imposes an obligation to caution in this way:
    • Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions.

As will be apparent, this Practice Note drew on the Judges Rules. However, the caution required under it extends to an explanation of the right to obtain legal advice. In this way the requirements of the Judges Rules have been restated in ways that ensure congruence with Bill of Rights requirements.

53. In the absence of a direction or rules of court under 20(7) of the Evidence Act, the Judges Rules should continue to apply in Samoa but with modifications to ensure consistency with arts 6(3) and (4) of the Constitution, s 32(1) (a) and (b) of the Criminal Procedure Act and s 20 of the Evidence Act. So modified, they will be triggered if a police officer questions a suspect about an offence when:
    • (a) There is sufficient evidence to charge the suspect. Or
    • (b) The suspect is in custody in the sense of not being able to leave either the police station or the company of the police officers who are dealing with him or her.

This triggering will require the police officer to advise the suspect of (a) his or her right of silence along with advice that if he or she chooses to say anything, it will be taken down in writing and may be used in evidence and (b) his or her right to legal advice.

The appeal

54. Counsel for the appellant advanced a wide range of arguments in which she challenged many of the factual findings of the Judge as well as his approach to the s 20(2) evaluation and his rejection of the contention that the statements had been obtained by oppression.
55. The Judge was far better placed than we are to assess the evidence of the appellant and the police officers. We see no basis on which we could depart from his credibility findings.
56. As will become apparent we consider that aspects of the way in which the police treated the appellant were inappropriate. On the basis of the factual findings of the Judge it is not open to us to conclude that the inadequacies in his treatment were “deliberate” or sufficiently serious in the senses required to establish “oppression”. But as will be apparent, we see these inadequacies as material to the outcome of the case.
57. This leaves in play the challenge to the Judge’s decision that exclusion of the caution interview would be disproportionate to the impropriety, a challenge that we will discuss by reference to whether:
    • (a) the police acted improperly;
    • (b) the admissions were obtained improperly; and
    • (c) exclusion of the evidence is proportionate to the impropriety.

Did the police act improperly?

General

58. On our approach, the legal framework consists of the Judges Rules (but modified as we have explained) to be consistent with art 6(3) and 6(4) of the Constitution and s 32(1) of the Criminal Procedure Act,
59. The first question we must address is whether the appellant was in custody once he was returned to the police station by Mr Westerlund in the early hours of Sunday 28 January.
60. At that time there was insufficient evidence to provide reasonable grounds for Corporal Filipo to believe that the appellant had murdered Mr Poumaa (as opposed to suspecting that he had murdered him). He likewise could not have been confident that further investigations would result in the appellant being prosecuted. As well, he plainly did not intend to arrest him then and thus start the 24 hour period provided for in art 6(4) of the Constitution. So, we are of the view that the appellant was not placed under arrest at this time.
61. We are, however, of the view that, in a practical sense the appellant was being held for questioning. He was plainly a suspect. He was one of the last people to have seen Mr Poumaa alive, his conduct at the morgue had been odd and his mother had told Corporal Filipo of a prior incident involving him and a machete. As well, Corporal Filipo thought that he had lied in his written statement as to his name. In this context, Corporal Filipo’s invitation to him to stay at the police station pending the trip out to Fiaga and Aleisa would have been in pressing terms. So, it is very likely that the appellant thought he had no choice but to stay. As to this, he would have noticed that he was being treated differently from his siblings who were allowed to return home. We therefore think that the appellant was in custody for the purposes of the Judges Rules.
62. The situation had moved on by the time the police had taken the appellant back to the police station after the first visit to Fiaga. We say this because:
    • (a) While the appellant was at Fiaga in the morning of 28 January, he might have thought that he was primarily there to assist the police by identifying the actual locations (and any other material) that might help the police reconstruct what had happened the night before.
    • (b) By this stage, there was enough evidence for the police to charge the appellant with murder. They had seen the CCTV footage that contradicted the appellant’s initial statement about his involvement and showed him with the deceased at a critical time This meant that the Police knew that the narrative the appellant had given in his written statement was untrue. That he had given an untruthful statement pointed to an inability to give a truthful but innocent explanation for what had happened and was (and still is) thus evidence of guilt..
    • (c) Although there was no direct evidence as to how the senior police officers involved in the investigation intended to deal with the appellant after he returned to the police station, we think it likely that the underlying plan was to keep him at the police station during the afternoon and evening of 28 January while evidence that was to be put to him in a caution interview was gathered and collated and that he be charged at the conclusion of the caution interview.
    • (d) We recognise that the Judge rejected the serious allegations made by the appellant as to how he was treated. But despite this and the absence of evidence of a formal arrest, we infer that by this time the police had made clear to the appellant, by implication at least, their intention to hold him in custody in anticipation of him being later charged with murder.
63. The Judge concluded that the appellant was under arrest by this time. On balance, we agree with the Judge for the reasons we have just given. This means that he should have been given the advice required by s 32(1) of the Criminal Procedure Act, but this did not happen.
64. We have some other general concerns.
    • (a) The length of time that the appellant was in police custody before the caution interview concluded – from around 1.00 am on 28 January until 11.17 pm on 28 January – a total of around 22 hours.
    • (b) He had been at work on 27 January and had presumably got up early that morning. There is no evidence of the police taking active and coherent steps to ensure that while he was at the police station he had appropriate opportunities for sleep and to eat food at orthodox times. As well, it is apparent that he was not permitted to have a shower until after the caution interview; this despite him having the blood of Mr Poumaa on himself and his clothes.
65. We see these factors as combining to produce an environment that, by the afternoon and evening of 28 January was becoming increasingly coercive; this because, as time went by, he would have been increasingly hungry, tired and anxious.

Corporal Filipo’s conduct

66. For the reasons given, we think that the appellant was in custody from the time he returned to the police station in the early hours of 28 January and was under arrest, at the latest from the time he arrived back at the police station after the first visit to Fiaga. At that point, he should have been given the advice required by art 6(3) of the Constitution and s 32(1) of the Criminal Procedure Act. Corporal Filipo had effective control of the appellant and, in the absence of anyone else having done so, Corporal Filipo should have given the required advice.
67. As it happened, the criticism we have just made of Corporal Filipo was not put to him in cross-examination by counsel for the appellant. In part this was because the case for the appellant at the voir dire had been pitched m uch higher, essentially that he had been handcuffed from the early hours of 28 January and subsequently abused, threatened and assaulted. To the extent to which counsel for the appellant cross-examined Corporal Filipo as to his awareness of how suspects should be treated, the questions were pitched at a general level. For instance, it was not put to him explicitly that he should have given the appellant the advice required by art 6(3) of the Constitution and s 32(1) of the Criminal Procedure Act when they arrived back at the police station after the first trip to Fiaga. As well, it was not put to him that by that time (or indeed at any other time), there was enough evidence to charge the appellant.

Constable Su’a’s conduct

68. Constable Su’a’s initial engagement with the appellant was, on his evidence and the findings of the Judge, informal in character in that he accompanied the appellant outside where they smoked and made small-talk.
69. On the findings we have made, the appellant should have been given the advice required by art 6(3) of the Constitution and s 32(1) of the Criminal Procedure Act well before Constable Su’a spoke to the appellant. We also think that it would have been apparent to Constable Su’a that the appellant was in custody at least, if not necessarily that he was under arrest. However, Constable Su’a cannot fairly be blamed for such advice not having been given earlier. Indeed, it is not apparent that he necessarily knew that the required advice had not been given, another point on which he was not cross-examined.
70. Since Constable Su’a was not setting out to speak to the appellant about the offending when he started talking to the appellant, rule 3 of the Judges Rules was not engaged. That said, once the appellant began his confession (which, as it turned out was reasonably lengthy), the Constable should have cautioned him but did not do so.

Sergeant Perite’s conduct

71. Sergeant Perite’s knowledge of the events of 28 January is necessarily unclear. His first substantive involvement with the questioning of the appellant seems to have been when Constable Su’a told him of the oral confession. By this point, the appellant had been given the required advice. He presumably knew that the appellant was in police custody but not necessarily that he was under arrest. He probably did not know, one way or the other, whether the appellant had been cautioned earlier in the day.
72. The Judge seems to have accepted that there was irregular conduct by Sergeant Perite on the way back from Fiaga after the trip there to pick up the machete. But he plainly did not see this as material to admissions later made by the appellant in the caution interview. And given the more general factual findings of the Judge and the limited basis on which Constable Su’a and Corporal Filipo were cross-examined, a conclusion that Sergeant Perite acted improperly in any relevant sense (in other words as material to the admissions that were made) is not open to us.

Were the admissions obtained improperly?

73. This depends on what would have happened if the appellant had been given the required advice on his first return to the police station from Fiaga (or earlier). It is not possible to be certain one way or the other whether this would have made a difference to his later conduct but the safest approach in this context is for the courts to assume a causal relationship unless reasonably confident that giving the required advice would not have altered the course of events.
74. Whether the appellant would have exercised his right of silence if Constable Su’a had cautioned him after he first confessed to the murder but before he gave the details is likewise uncertain but again, the safest course is to assume that the failure to do so was material to what later happened.
75. It is plausible to assume that the full confession made to Constable Su’a was material to the admissions that the appellant later made in his caution interview; this because he would likely have thought that given his oral admissions, there was no point in not making similar admissions in the caution interview.
76. More generally, as is apparent, as time went on, the way appellant was dealt with in police custody became increasingly coercive as a result of the combined effects of lack of sleep, lack of regular meals and the refusal to let him shower.

Is exclusion of the evidence proportionate to the impropriety?

General

77. As will be apparent our approach to whether the police acted improperly overlaps that of the Judge but is not exactly the same. For this reason, we will briefly discuss the criteria in s 20(3) that we see as primarily relevant.

What is the importance of any right breached by the impropriety and the seriousness of the intrusion on it (s 20 (3)(a))?

78. The rights that were breached are important and given the period of time that the appellant was in the hands of the police and the circumstances in which he was held (without opportunities for sleep, regular meals or a shower), the intrusion was serious.

What is the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith (s 20(3)(b))?

79. Corporal Filipo and Constable Su’a were not cross-examined on the basis that the former failed to give the appellant the advice required by article 6(3) of the Constitution and s 32(1) of the Criminal Procedure Act on the first return from Fiaga, and the latter did not caution the appellant when he first began admitting that he had murdered Mr Poumaa.
80. Given this limited cross examination, it is not open to us to conclude that they acted in bad faith.

What is the nature and quality of the improperly obtained evidence (s 20(3)(c))?

81. The evidence is of high quality.

What is the seriousness of the offence with which the defendant is charged (s 20(3)(d))?

82. The offence is very serious.

Are there are alternative remedies to the exclusion of evidence which can adequately provide redress to the defendant (s 20(3)(f))?

83. There are none.

Did the impropriety arise from a genuine misunderstanding, accidental or unintentional infringement (s 20(3(i))?

84. The Judge found that the impropriety was “unintentional and inadvertent”. We are prepared to accept that this is so in terms of the role of each of the individual police officers (that is Corporal Filipo, Constable Su’a and Sergeant Perite). That said, the totality of what happened points to either failures of training or the absence of a systematic approach to ensure that appropriate and fair procedures are followed when suspects are in police custody for lengthy periods of time.

Is exclusion proportionate to the impropriety (s 20(2)(b))?

85. When the appellant returned to the police station in the early hours of 28 January, he would already have been awake for around 18 or 19 hours and for much of this time he had been physically working. He had the blood of his step-father on himself and his clothes. He was then held in custody for more than 20 hours before he commenced his caution interview. During this time, he was not permitted to have a shower and was not provided appropriate opportunities for sleep or given food at usual meal times. By the time the caution interview started at 9.52 pm on 28 January, he had been awake for around 40 hours save for perhaps some snippets of sleep he may have obtained while in the police station.
86. The way in which the appellant was treated resulted from an institutional failure to have appropriate regard for his welfare and, more generally, fairness. In this context, the improprieties which we have attributed to the police, the failure to give the advice required on arrest when the appellant returned to the police station from Fiaga with Corporal Filipo and the failure by Constable Su’a to caution the appellant once he began to make his original oral admissions take on a significance in terms of the balancing exercise that they would not have had if the overall treatment of the appellant had not been so coercive.
87. We see the unfairness as being of a high degree. In these circumstances we respectfully differ from the judge’s assessment. We are satisfied that despite the importance of the evidence, the exclusion of all evidence of admissions made to Constable Su’a and the caution interview is not disproportionate to the impropriety and indeed is required for the purposes of having an effective and credible system of justice.
88. In reaching this view we have recognised that exclusion of the evidence as to the admissions made by the appellant weakens the prosecution but also that, on our appreciation, the case against the appellant remains sufficiently viable to warrant consideration at trial. This appreciation is based in part on our view (necessarily provisional as we did not hear argument) that this is one of the rare cases in which the appellant’s lies as to what happened on the night of 27 January can be relied on as evidence of guilt; this on the basis that it would open to the Court at trial to infer that the reason that the appellant lied as to the lead up to his step-father’s death was that he was unable to give an honest but exculpatory explanation of his role in that lead-up.

Result

89. The appeal is allowed. We rule the evidence of the admissions made to Constable Su’a and the caution interview to be inadmissible at the appellant’s trial.
    

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE NELSON

1. ^[1] R v Goodwin[1993] 2 NZLR 153.
2. ^[2] See for instance s 24 of the Crimes Act 2013.
3. ^[3] See Goodwin, at 183
4. ^[4] See the remarks of Cooke P in Goodwin, at 163.
5. ^[5] See Police v Malota [2013] WSSC 145.