The Supreme Court has ordered that a written record of interview, written statement of charge form and voluntary statement be excluded from evidence in a rape case.
Lord Chief Justice Paulsen said the documents had been obtained in breach of Section 149 of the Tonga Police Act because the accused had not been properly advised that he could telephone or speak to a lawyer, friend of relative.
The judge described the accused, Filipo ‘Amanaki Lele Tu’ifa, as “unsophisticated” and said he might have responded differently during the questioning if he had had the benefit of advice from a friend or relative.
During questioning on November 17 last year, Constable Siale asked Tu’ifa if he wanted a lawyer present, but did not inform him of his full rights.
Tu’ifa had been charged with rape following a complaint made against him on November 13, 2017.
“There was a substantial, if not a total, failure to observe the requirements of Section 149,” the judge said.
“The accused was not told that he had a right to telephone or speak to a friend or a relative. He was not told he could telephone a lawyer.
“Although he was asked if he wanted a lawyer he was not told he had a right to speak to a lawyer or how he might communicate with one if he did.”
Lord Chief Justie Paulsen said many people in Tonga charged with even the most serious criminal offences could not afford a lawyer.
“Even if told that they have the right to a lawyer they cannot possibly engage one,” he said.
“This is one reason why the requirement that an accused be told that he/ she may speak to a relative or friend, is so important.
“In many cases it will represent the only means by which an accused person may have any support and/or advice before being subjected to interrogation by the Police.”
A friend or relative might well be a person with some knowledge of an accused’s rights or might offer moral support to the accused.
Lord Chief Justice Paulsen said the breach of Section 149 had prejudiced the accused and must be excluded.
The main points
- The Supreme Court has ordered that a confession in a rape case be excluded from evidence.
- Lord Chief Justice Paulsen said the confession had been obtained in breach of Section 149 of the Tonga Police Act because the accused had not been properly advised that he could telephone ior speak to a lawyer, friend of relative.
