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Police v Vailopa [2009] WSSC 69 (2 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IKILASI RAYMOND ISUMU VAILOPA,
male of Fugalei.
Accused

Counsels: Ms P. Chang & Ms T. Toailoa for the prosecution
Ms RV. Papalii for the accused

Hearing: 30 June & 1 July 2009
Ruling: 2 July 2009

RULING OF NELSON J. (on a voir dire)

The prosecution evidence is that on 29 September 2008 the accused was interviewed by the police in relation to a fatal incident that occurred at the Fugalei Market bus stop premises on 13 September 2008. The police had some difficulty locating the accused but eventually apprehended him in the swamp area behind Sogi village. He was brought to the police station on 29 September 2008 and questioned and he told the police that it was a boy named Oloa and others who beat up the deceased. He was released and police enquiries continued to an eye witness who told them that in fact it was the accused who assaulted the deceased. Accordingly the accused was again brought in and re-interviewed, this time in the presence of his mother whom the police had requested be present. After being advised as to his rights the accused refused to make a statement. That interview is recorded on a three page signed document dated 29 September 2008 and it is recorded therein that the interview lasted 40 minutes. Because they had sufficient evidence the police charged the accused with murder and remanded him in custody at Tafaigata Prison overnight.

The following day 30 September 2008 he was brought to the Apia Police Station to meet his mother and for remand purposes. The evidence of the interviewing police officer Constable Kid Roache was that the mother had come to "asi" or check upon her son. He was surprised when the accused on being brought into the office called out to him saying he wanted to talk to him and that he wanted to tell him it was he who assaulted the deceased not Oloa. The constable said he immediately cautioned the accused, interviewed him and obtained from him the signed statement dated 30 September 2008 which the prosecution is seeking to tender into evidence. In the statement the accused admits inter alia to assaulting the deceased at Fugalei Market on 13 September 2008.

The statement has a number of other distinctive features. Firstly it was taken in the absence of the mother despite the Constables evidence that she was present at the police station to "asi" her son. Secondly it is recorded as beginning at 11.22am and completing at 1.44pm, a period of 2 hours and 22 minutes. The statement is like the one taken the previous day by Constable Roache which only took 40 minutes and furthermore, like that statement it is also only three pages long. Unlike the earlier statement however, the 30 September 2008 statement is not signed by the officer who recorded it, Corporal Malama Fauoo and no explanation is apparent from the evidence as to why this is so.

The constable in his testimony denied handcuffing the accused or pressuring him to make the second statement of 30 September 2008 or beating him up or in any way forcing him to confess. He also said the witness Oloa was not present at the police station when the accused was brought in that day.

The second and only other witness for the prosecution on the voir dire was Detective Sergeant Ituau Ale who witnessed the 30 September 2008 interview. His evidence however differs in a number of material respects. Firstly he said he was involved in bringing in witnesses for this matter and upon arrival into the office with one of the witnesses, the accused was there and on seeing the witness the accused called out to the investigating officer that he wanted to change his statement and admit to assaulting the deceased. He said the accused was accordingly cautioned and then interviewed by the investigating officer and the statement dated 30 September 2008 obtained. But it did not take more than two hours, it took less than one hour. He also does not know why Corporal Malama did not sign that statement and Corporal Malama who is a still a police officer was not called as a witness for the prosecution, so I do not know why either.

The Detective Sergeants further evidence was that after the interview and signing of the cautioned statement he went outside with the accused to an alcove at the front of the police building by the traffic lights and there they smoked a cigarette. While doing so the accused admitted to hitting the deceased and said he was willing to "do the time for it". This was an admission volunteered by the accused to him without any prompting. This witness also denied the investigating officer threatened or behaved improperly towards the accused and said that if any such thing had occurred he would have intervened and stopped it.

The evidence of the accused is radically different. He said he was brought handcuffed from Tafaigata Prison on 30 September 2008 and that on arrival at the police station the witness Oloa was there making a statement. He was accordingly taken to the cells and there assaulted by Constable Roache and Corporal Malama. The officers kicked him and pressed down on his restrained wrists causing injuries and bruising to his hands. He was afraid and in pain and the officers told him to speak the truth and he will be released. He agreed in cross examination that there were other police officers present at the Station but said no one stepped in to help him or stop the assault. He admits to telling the police about the deceased being dropped on his head on the concrete by one of his mates (last page first paragraph of the cautioned statement) but he essentially denies anything else of the statement. He said he signed both his police statements but did not read them as he cannot read and only signed it because he was told to by the police officers. He also testified he knew why he was being interviewed by the police and agreed it was a serious and important matter involving the loss of a persons life.

I have seen and heard the accused gave evidence as well as the police officers. While I have some issues with the police evidence I have no hesitation in disbelieving the accused. He did not impress me as truthful and his evidence is not credible. In particular why would the police put into his cautioned statement of 30 September 2008 material that is favourable to him. Further I do not accept that someone who can clearly write his name is unable to read. I reject the accused's evidence in its entirety. The challenge on the ground of voluntariness therefore fails there being no evidence that the police acted improperly or beat or otherwise coerced the accused into making his 30 September 2008 statement. There was no duress, no threats or oppressive behaviour, there was no promise to release the accused if he "told the truth".

The real question is whether the statement should be admitted given that it was obtained from a 16 year old accused in the absence of his parents or guardian or caregiver even though the mother according to the investigating officers evidence was present in the police station at the relevant time. It is not clear why the investigating officer opted to take the statement anyway when he acknowledged in his evidence more than once that it was important that a parent or guardian be present when a young person is interviewed by the police. That was the procedure he followed when interviewing the accused the day before and there is no reason I can deduce from the evidence why after the accused's initial voluntary and spontaneous admission the investigating officer did not then summon the mother and in her presence caution and interview the accused. This is particularly important when an under-aged accused has already been charged with a serious crime, in this case with murder perhaps the most serious of offences, and when an accused has been held in police custody overnight to await remand by a registrar. And if the cautioned statement is ruled inadmissible, should the initial admission made spontaneously by the accused to the investigating officer on his arrival at the Apia Police Station be admitted into evidence as well as the verbal admission made to Detective Sergeant Ituau during the post statement smoking session outside the police station?

At common law a voluntary statement could nevertheless be excluded in the courts discretion if it was unfairly obtained or "obtained by improper or unfair methods": R v Ali [1999] NZCA 292. The principles and exercise of this discretion were recently reviewed by this court in Police v Masame [2007] WSSC 66 and have been applied in many cases, e.g. Police v Taito (unreported) 15 December 2008. The relevant issue is as was stated by the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426, 438:

"Whether the course of the inquiry, as proved in evidence, makes it unjust that the statement should be received. In answering this inquiry the Court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure and the generality of cases."

The court in Ali cited this passage and then concluded at paragraph 51:

"It is then a matter of looking at the totality of the police conduct. What is important is the overall question of the fairness of the police methods and the issue of fairness is determined by the judge as a matter of judgment rather than by reference to the onus of proof."

I am in no doubt the confession obtained on 30 September 2008 in the absence of the mother who was in another part of the police station at the time should be rejected as being unfairly and improperly obtained. The investigating officer himself accepted that statements from under-aged offenders should only be taken in the presence of a parent or guardian. To that I would add or a senior relative or member of the family or the accused's legal counsel. For the investigating officer to press on and break his own rule of practice which he had followed the day before renders the cautioned statement he took on 30 September 2008 inadmissible as being unfairly obtained. Furthermore it would be dangerous for the court to sanction such conduct. The practice should be to interview young offenders only in the presence of a parent, guardian, senior family member, caregiver or lawyer and if such a person is not available the interview should be postponed and a reasonable opportunity afforded for them to attend. In this country there will always be someone falling within those categories available.

Before the cautioned statement can be rejected however, the prosecution has urged that the court apply a likelihood of truth test such as is contained in section 18 of the Evidence Ordinance 1961. It is clear section 18 does not apply to the circumstances of this case as there is no evidence the confession was involuntarily obtained. But the prosecution seem to be arguing here that nevertheless the court should adopt such a test before it can reject cautioned statements obtained unfairly or improperly. They cited Police v Masame in support and say a balancing act such as was conducted in R v Shaheed [2002] NZLR 377 a decision of the New Zealand Court of Appeal is required before the cautioned statement can be excluded.

With respect to counsel for the prosecution Shaheed was discussed in Masame in relation to a breach of the New Zealand Bill of Rights Act. An Act which contains fundamental rights similar to those found in Part II of our Constitution. The right at issue in that case was the search and seizure right under section 21 of the New Zealand legislation. I cannot see that assists the prosecution argument as there is no suggestion in this case that any fundamental right of the accused has been breached. The Shaheed balancing approach as I understand the decision was in relation to an alleged breach of a Bill of Rights provision, not in relation to a confession alleged to have been obtained through unfair or improper means. In any event as the learned Chief Justice noted in Masame, the Shaheed balancing test is in conflict with the approach adopted by our Court of Appeal in the AG v Ueti (1994) CA 24/93, 5 May 1994. Furthermore I would be hesitant to apply a likelihood of truth test to a confession or admission improperly or unfairly obtained for if it has been obtained "by improper or unfair methods", its truth or otherwise is to a large extent irrelevant. The rationale for the rule was best expressed by Lord Hailsham in Wong Kamming v R [1980] AC 247, 261 in a passage cited in Ali:

"Any civilized system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions."

That was not the only basis upon which the cautioned statement was challenged. Counsel for the accused also argued the non-presence of a parent meant the cautioned statement infringed the intent and spirit of the Young Offenders Act 2007 as well as articles 37 and 40 of the United Nations Convention on the Rights of a Child ("CRC") to which Samoa is a party. It was conceded by counsel in argument the Young Offenders Act was not directly on point as section 9 thereof refers to the presence of a parent or caregiver at the hearing or court proceedings as opposed to at a police interview. But counsel argued the spirit of the legislation which specifically provides for youth offending was breached. There is little force in the argument as clearly the Act makes no mention of police interviews and its focus is on the treatment of young offenders once they come within the court system.

The Convention argument has far more merit. In reply to that the prosecution say the CRC does not guarantee a right for parents to be present at a police interview. But even if it did, being a signatory to the Convention does not make it part of the domestic laws of this country until Parliament legislates on the matter as for example it did with the Young Offenders Act. There is accordingly no such obligation on the police and statements obtained in the absence of a parent, guardian or caregiver or such like should not be excluded on that ground. Although the prosecution acknowledges it is a good practice for the police to follow.

That young offenders and children generally require special treatment cannot be doubted. As recited in the preamble to the CRC, "the child by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birth." The result was the CRC, a convention unanimously adopted by the United Nations General Assembly on 20 November 1989 and which remains the most ratified international human rights convention. Samoa has been with an immaterial exception party to this Convention since 29 November 1994 but as with most Pacific states, we have not as yet taken the further step of giving full effect to our Convention obligations as required by article 4 which provides that States "shall undertake appropriate legislative administrative and other measures for the implementation of the rights recognized in the present Convention". I would for present purposes underline the words "other measures".

The articles relevant to this case are as counsel for the accused has pointed out, articles 37(b), (c) and (d), in particular (d) which relevantly provides:

"Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance."

Also applicable is article 40(1) and (2) particularly 2(b)(ii) which reads:

"Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

..

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence."

While these provisions do not explicitly require a guardian, parent, caregiver or other such person be present at a Police interview, at least one Pacific court has construed 40(2)(b)(ii) that way. This was the High Court of Tuvalu in Simona v The Crown [2002] TVHC 1 where it found that the article gave "any child in the custody of the police the right to have a parent or guardian present unless that is impractical". In the words of Chief Justice Ward in that case:

"The perception that a child needs special protection arises from the immaturity and vulnerability of children. That is the foundation upon which the Convention was constructed. In the hostile and stressful situation of an accusation of a criminal offence, it is accepted a child needs the mature guidance and reassurance of someone who clearly has its interests at heart. To suggest that it should know that it has such a right and would have the courage or maturity to demand it runs counter to the fundamental philosophy of the Convention. I consider it a logical and proper conclusion that the police are obliged to advise any child of the right to have a parent, guardian or legal adviser present and to take any reasonable steps to secure such attendance before taking any step that could result in the child making a statement against its interests."

There is high authority that the courts of this country must follow the Convention. As noted in Police v Faiga [2008] WSSC 1996:

"The Court of Appeal as the highest court of the land decreed in Attorney General v Maumasi [1999] WSCA 1 that all Samoan Courts should have regard to the articles of the Convention on the Rights of the Child in cases within its scope i.e. in relevant cases. No less a person than Lord Cooke of Thorndon who was for many years the president of the Samoa Court of Appeal has stated that the following of the principles of the CRC should not be mere window dressing. See further the observations of the Court of Appeal in Police v Kum [2000] WSCA 6.

This is a clear mandate to the courts of this country to have regard to the provisions of the Convention in appropriate cases. More than lip service must be paid to the provisions of the Convention."

The Samoan courts have not been slow to respond. See for e.g. Leituala v Mauga [2004] WSSC 9 where article 16 of the Convention (no arbitrary or unlawful interference with a childs privacy, family, home, honour and reputation) was relied on to uphold a substantial award of damages against a Village Council which banished the plaintiff and his family without due cause. In the course of a judgment affirmed on appeal, Vaai, J said:

"I have characterized the conduct of the village council as high handed when it resolved to banish the plaintiff and his family from the village. The defendants outrageously ignored the interests of the innocent young children; it is conduct which offend human decency and triggers the imposition of punitive damages. When Samoa ratified the Convention on the Rights of the Child it was a genuine gesture to protect our children and this Court has on a number of occasions echoed it will protect those rights with jealously."

There is also Attorney General v Maumasi itself, which was a case involving a juvenile victim on a charge of manslaughter in a manner described by Court of Appeal as "a terrible crime by any standards" which led the court to increase the imprisonment sentence from 3½ to 5 years but with the rider that "only our respect for the Chief Justices assessment of what is appropriate in Samoan society leads us not to increase it more than we now do. If any truly comparable case arises in future an even longer sentence is likely to be justified."

This was reinforced by the observations of the Court of Appeal in Police v Kum [2000] WSCA 6:

"In his submissions for the appellant, Mr Schuster stressed the seriousness of this type of offence which carries a maximum sentence in Samoa of 7 years imprisonment. He called for a deterrent sentence and stressed Samoa’s International obligation to protect the interests of children under the Convention on the Rights of the Child ratified in 1994. As Cooke P. (as he then was) said in Tavita v Minister of Immigration [1994] 2 NZLR 257, 266, Samoa’s ratification of the Convention should not merely be window dressing."

The Court went on to quash the sentence of 9 months and in its place substitute one of 3 years imprisonment. The court went even further in Wagner v Radke [1997] WSSC 6 when it applied the policy and principles of an international Convention, in that case the Hague Convention on International Child Abduction 1980, to which Samoa was not even a signatory or a party.

These decisions show an application of the Conventions provisions and principles across a broad spectrum and to a wide variety of circumstances. This is also consistent with a Pacific approach which has seen other jurisdictions applying the Convention and its philosophies to a host of situations: Kosrae v Ned [2005] FMKSC 11 where the Kosrae State Court in the Federated States of Micronesia held that the imposition of community service on a juvenile offender would not violate the provisions or spirit of the CRC since community service could be considered as guidance, supervision, counseling, education and vocational training which are all preferred alternatives to institutional care/detention; State v Noimbik [2007] PGDC 63 where the Papua New Guinea District Court of Justice sitting in its criminal jurisdiction said:

"The defendant’s conduct towards the child not only breached our domestic law as I have mentioned above but has transcended international boundary and gone into violating an international law – the CRC which Papua New Guinea is a signatory to. This Convention recognizes and highlights the human dignity of every child and also demands from member states like PNG that children, no matter how wrong or right they may be must never be harmed in any form or manner and must be protected from all forms of abuse....

As a member state to this Convention, Papua New Guinea through its various state agencies including the court system is called upon to enforce and give effect to this Convention.";

Ali v State [2001] FJHC 169 where in dealing with the issue of corporal punishment in schools the Fiji High Court said:

"Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees the fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students.";

In Re Lorna Gleeson [2006] NRSC 8 where in cases stated for the opinion of the Nauru Supreme Court, the Chief Justice of Nauru said:

"I am told that Nauru is a signatory to the CRC. Whether it has become part of the domestic law of Nauru is a moot point. Whether it is or is not part of our domestic law, I feel able to take the Convention into account in considering the cases stated."

Regina v Setaga [2008] TVHC 3 where Chief Justice Ward in the Tuvalu High Court said:

"The CRC was ratified by Tuvalu in 1995 and whilst it is clear that Tuvalu has not yet taken the legislative steps required by article 4 to implement the rights recognized by the Convention, the terms of article 40 must be considered to give some guidance of the way the rights of a child are considered by the courts here.";

Faaoso v Paongo [2006] TOSC 37 where the Tonga Supreme Court noting that Tonga had acceded to the Convention in 1995 found that article 37 of the Convention had been breached by the Police in its treatment of the juvenile plaintiff and proceeded to award substantial damages, compensatory and aggravated, for the plaintiffs wrongful imprisonment. There are also the many decisions of the European Courts of Human Rights interpreting and applying the CRC. (I leave these to counsels to explore for themselves).

This overwhelming abundance of international authority shows how parties to the Convention on the Rights of a Child notwithstanding the lack of specific domestic legislation have imported the Convention, its underlying principles and philosophies into domestic law. In doing so these countries have breathed life into the CRC and so it should in a modern world where children continue to be exploited in the areas of armed conflict, child pornography, child prostitution and such-like. Samoa should not be hesitant to take its place amongst the nations of the world active in this struggle. "To make it a better place, for you and for me" (Michael Jackson, 2009 – pop legend).

Article 37(d) requires that a youth in custody has the right to promptly receive "access to legal and other appropriate assistance." In this case I would interpret that to mean that of his mother who according to the evidence was in the police building at the time or perhaps even the Registrar of court whom he was brought down on 30 September 2008 to see. In respect of article 40(2) (b) (ii) I would respectfully agree with Chief Justice Ward in Simona that the words and/or the underlying philosophy of article 40(2)(b)(ii) means that a parent, guardian, caregiver or one of the persons referred to previously must be present before a youth can be interviewed by the police in respect of potential criminal misconduct. This was not done here, the cautioned statement of 30 September 2008 should be excluded on that ground as well. If not specifically on that basis then at least on the ground that a breach of the spirit and philosophy of articles 37(d) and 40(2) (b) (ii) is tantamount to obtaining a confession by the use of improper and unfair methods.

A third and final basis for exclusion of the statement is the unsatisfactory nature of the police evidence itself. Firstly, there is the conflict between the evidence of the investigating officer and Detective Sergeant Ituau as to whether the witness Oloa was present at the Police Station at the time the accused arrived. The investigating officer saying he was not present and that the accused voluntarily decided on arrival to admit assaulting the deceased contrary to what he had told the police previously. Whereas the Detective Sergeant said he was present and that was why the accused had a change of heart and change of story. This is not a minor difference. Secondly there is a conflict as to the duration of the taking of the statement sought to be admitted by the prosecution. The statement on the face of it shows a 2 hour 22 minutes duration whereas the Detective Sergeant testified that it took less than 1 hour. The evidence tends to support the Detective Sergeant since the cautioned statement taken the day before of similar length only took 40 minutes. But if so, this casts doubt on the reliability of the 30 September 2008 cautioned statement and what is written therein, especially considering that a key witness namely Corporal Malama who took it never signed it and was not called by the prosecution. There is a further implied conflict in the evidence of the two police witnesses as only the Detective Sergeant referred to the post-statement going outside the police station into an alcove at the front of the building to smoke a cigarette with the accused. This was not mentioned at all in the evidence of the investigating officer. Given these inconsistencies I am not confident the statement can be safely relied on and I would exclude it on that basis as well.

This then leaves the so-called spontaneous admission of the accused upon first arrival at the Police Station on 30 September 2008 and the admission made to the Detective Sergeant when they were smoking at the front of the building. As noted above a voluntary statement or admission can still be excluded if obtained using improper or unfair methods. If I accept the investigating officers evidence as to the spontaneous nature of the admission, it would be admissible as it was given without prompting and before the appropriate cautions and warnings could be delivered by the Police officer. But his evidence as noted conflicts in many significant areas with that of the Detective Sergeant. The onus is on the prosecution to establish beyond reasonable doubt the admission was voluntary and that the admission should be accepted into evidence. I am not satisfied they have done either. These admissions should be ruled out.

For completeness I would add that even if both admissions satisfied the applicable common law tests, they should still be excluded as they were admissions made in the absence of the accused's parent, guardian or caregiver contrary to the accused's rights under the United Nations Convention on the Rights of the Child that I have referred to earlier. The end result of all this is that the evidence as to the cautioned statement of 30 September 2008 and as to admissions made by the accused that day to the police are inadmissible.

JUSTICE NELSON