R v Labiche & Elisabeth (26 of 2022) [2023] SCSC 79 (1 February 2023)

GOVINDEN CJ

1. On the Prosecution attempting to produce a statement under caution by Police Officer Marianna Eullentin, taken from the 1^st accused  on the 27^th of May 2022, his Counsel Mr Clifford Andre objected to its admissibility and the Court proceeded in a trial within a trial in order to test its admissibility.
2. Learned Counsel for the Defence raised two principal objections, namely that his client had not been informed of his constitutional right to have a lawyer present before the taking of the said statement.
3. His second objection was that the 1^st accused was pressured by Police officers, including Sergeant Davis Simeon, prior to the taking of the statement.
4. In a trial with a trial, with regards to establishing the voluntariness and constitutionality of a statement under caution, the Prosecution bears the burden of proof to establish beyond a reasonable doubt that the statement was voluntarily taken and taken in compliance with the provisions of the Constitution.
5. The statement had to be voluntary in the sense that nothing should be done by persons in authority, which in this case will be Police officers, upon the 1^st Accused being in their custody that will sap the will of the accused person, by of usage of oppression, violence, intimidation and inducement being levelled on the 1^st accused or that of his next of kin, that will compel him to give a statement under caution that he would not otherwise have given if those circumstances were not present.
6. With regards to the Constitutional rights Article 18(3) of the Constitution comes into play.  This provisions provides that “a person who is arrested or detained has a right to be informed at the time of his arrest or detention or as soon as reasonably practical thereafter, in as far as is practicable, a language that a person understands, of the reasons of the arrest or detention, right to remain silent, a right to be defended by a legal Practitioner of the person’s own choice and in the case of a minor a right to communicate with the parent or guardian.”
7. Once a statement is objected in terms of its admissibility for non compliance to Article 18(3) the Prosecution has to establish beyond a reasonable doubt that there was compliance to 18(3).
8. Link with the issue of Article 18(3) and the common law voluntariness of a statement under caution is the Judges Rules 1964 which relates to the form that the questioning of a Suspect should take place, more particularly Rule (II), which provides that once evidence in the possession of the Police affords reasonable grounds for suspecting that the Suspect has committed an offence certain procedures have to be initiated. In such an instance the officer has to caution or cause to be cautioned the Suspect before questioning him further.
9. I note that in a voire dire the Defence continues to retain its right to remain silent and any reasonable doubt has to be ruled in favour of the Defence.
10. The 1^st witness for the Prosecution was the taker of the statement, Sergeant Marianna Eullentin. She testified that she works at the CID Headquarters at Bois de Rose Avenue, Victoria.  She received instructions from Corporal Tania Solin to take a statement under caution from the 1^st accused, who was then the 1^st Suspect, being detained at the Beau Vallon Police Station.  She does not recall how he was brought to the Bois de Rose Police Station. She recorded his statement after having cautioned him and informing him of his Constitutional rights. The statement was recorded in one of the Investigator’s office. Present also was Sergeant Robin Legaie, who witnessed the taking of the statement. The 1^st accused was cautioned at 2.36 p.m and after he was cautioned he gave a detail statement.  He was informed that he was suspected for committing murder and the right to remain silent and the right to choose a lawyer of his choice and was cautioned in  the following terms “you are not oblige to say anything unless you want to say something, however if you do whatever you say will be taken in writing and given in evidence.”  Following that he authorised her to take his statement.
11. The statement was completed at 5.32 p.m. After the statement was recorded it was read over to the accused and he was informed that he could add, amend or remove anything. He made certain amendments, (9) in total and he signed next to them. Thereafter he signed the statement as correctly recorded.
12. Under cross examination the officer testified that she was aware that the accused had given other statements under caution before, though she was unaware of how many and who recorded them. She however says that a Suspect can give as many statements as he or she wishes. She was also not aware whether Counsel had been present at the time that those statements were given. She said that he will not have exercised his right to remain silent if he had given those statements.
13. The witness does not however know whether the 1^st accused was taken to ASP Quatre office or the office of the Forensic Psychologist Miss Cheryl Lautee when he arrived  from Beau Vallon Police Station. She also categorically denied to Miss Lautee being present when the statement was being recorded. She also denied that any photographs were shown to the 1^st accused and audio recording were played to him prior to him giving the statement. She insisted that the 1^st accused had not been informed to give a statement on the basis that his version of events were not the same as that of the 2^nd Suspect, being the 2^nd accused in this case
14. Police officer Robin Legaie was the 2^nd witness to testify in favour of the Prosecution in the voir dire. He testified that he assisted Police Sergeant Marianna Eullentin when she recorded a statement from the 1^st accused in this case, though he had forgotten his name. 
15. The statement was recorded in the office of Sergeant Eullentin at the Boise de Rose Police Station CID Headquarters.  He said that the accused was cautioned and informed of his Constitutional right before the statement was taken. He cannot recall the time that the statement started and the time that he was cautioned, though it was in the afternoon. According to him the 1^st accused was willing to give the statement and he was relaxed.
16. With regards to the legal procedure, the witness informed the Court that the 1^st accused was informed of his Constitutional rights and he was cautioned. He was informed that he could request for a lawyer and could remain silent. He was cautioned in the following terms:- “you are not oblige to say anything unless you wish  to say so, if you say anything, it will be taken in writing and used in evidence.”  According to him it took quite a long time for the statement to be taken and at all material time there was present only himself and  Ellentin and the accused in the room. After the statement was recorded the statement was read over to him and he was invited to sign it and he signed it.
17. In cross examination the officer testified about the location of his office as compare to that of Sergeant Eullentin and officer Simeon and he admitted that officer Simeon’s office is closer to that of Eullentin’s. He denied vehemently the allegation that he was asked to be a witness to the statement taken by Davis Simeon. He denied the fact that Sgt Simeon and officer Lautee being present in the room whilst the statement was recorded. He stated that he was unaware of the number of previous statement under caution given by the accused. He is also unaware of whether the 1^st accused had been prior  to inform to give another statement because his version did not match that of the 2^nd accused.
18. He denied of any pressure being put on the accused in order for him to give the statement. He stated that he will however not know whether there was any pressure put on the 1^st accused on the way from Beau Vallon Police Station or whether he had been brought to ASP Aubrey Quatre office before he gave his statement.
19. With these two witnesses, the Prosecution closed its case.
20. The Defence opened its case by calling the 1^st accused. He testified that he had now learnt that in fact he  had given 6 statements under caution to  the Police, including the one  that he is impugning.
21. On the 27^th of May 2022, he was informed whilst he was at the Beau Vallon Police Station to get ready in order to go to the Bois de Rose Station, that was around 10.00 a.m. At the Boise de Rose CID Headquarters he was first brought to a Police officer Antoine’s office. He was informed to make up his mind and to come out clean and to give a new statement as those given did not match that of the 2^nd accused. He did not reply.
22. From there he was brought to the office of officer Aubrey Quatre and that of Miss Lautee. He was brought there by officer Legaie. In that office he was informed that an audio recording that he had given to the Police days before was not true and they wanted to get another statement from him. They said that he was untruthful. They also called upon him to give another audio recording.  He gave a recording, the recording was over by noon. He was not informed with regards to any procedure before the recording was effected. After that he was shown a sketch that contains several injuries or marks and he was asked which one he inflicted.
23. From there he was brought to the office of Sergeant Davis Simeon. In the office there was Sergeant Eullentin, officer Simeon, officer Solin and himself. Solin then went out and officer Simeon opened his laptop before him. He showed him the body of Shirleytine that was found in the woods. He did not want to look at the photos, but he was forced as Simeon as showing it to him. After that Simeon opened the audio files that were removed from Ashten’s phone. They asked him if the male voice which was on the audio files was his. He did not answer. Then Simeon informed Eullentin to take another statement from him, although he protested that he had just given an audio recording when he was in the presence of ASP Quatre and Lautee. They insisted that he had to give another one as the one given before was not consistent with  that of the 2^nd  accused.
24. He was then informed that if he co-operate his sentence will be reduced. That if he does not, his kids will have a new stepfather and that he will spend a long time in prison. At that time he informed Simeon that he was not feeling well and he was feeling nervous. Simeon asked him whether he wanted to have another person in the room. It was at that time that officer Lautee came in and Simeon went out. After that he gave a statement under caution in the presence of Legaie and Lautee.   
25. Before the statement started he was not informed of anything. Eullentin just told him that she was ready and he gave it. It was given in a story and question forms. He was not cautioned, or informed of his right to remain silent. The statement was read to him, thereafter when it was completed he signed and correct it.  He corrected it in some places.     
26. When he was being taken away to Beau Vallon Police Station he was informed  by Sergeant Eullentin that she will be at the Station, at her office and she is prepared to see him if he changed his mind.
27. Under cross examination the accused said that officer Lautee was an officer in the CID and she was present when the audio recording was being done. She was also present when the statement under caution was being taken. He insisted that he was not cautioned or informed of his rights, including his rights to Counsel. He stated that he was only afforded Counsel Mr Andre on the 31^st of May 2022. From then on he had informed his lawyer about the issue with regards to his statement. At any rate he insisted that he is totally oblivious to the issue of right to Counsel as this is the 1^st time that he is suspected of committing an offence. According to him had he been informed of his right to Counsel he will have definitely called for one.
28. Upon being re-examined the 1^st accused insisted that he was pressured by Officer Simeon. He said the officer Simeon had informed him that he was aware of the problem that he was having with Shirleytine and that he needed to give a new statement on that basis as his statement did not match that of Ashten. He insisted also that Simeon had told him that if he co-operate he will come out earlier, if he gave the new statement. Otherwise his wife will divorce him and all his children will have a step father.
29. The second witness called by the Defence is Miss Cherly Lautee, the Police Forensic Psychologist. She stated that her duties is to take care of the mental wellbeing of Suspect and accused in the criminal legal system based on research and  theory in criminal investigation.
30. She had had interactions with the 1^st accused on the 17^th of May 2022 and the 27^th of May 2022. When he met him there was nobody else present in the room. She did not attended any sessions with Mr Labiche whilst he was giving his statement under caution on the 27th and she did not met him at any time in Aubrey’s Quatre office.
31. Under cross examination she testified that she met the accused not at the CID office but at the Marine Police office which is in a different building. It was not an assessment that she did with the accused on that day though he told her she was experiencing some worries.
32. With this the Defence closed its case.
33. I have carefully listened to the submissions of both Counsels on the facts and the law arising in this voire dire.  I have carefully scrutinised the evidence led before me, with a special attention on the credibility of the different witnesses, especially when it comes to their testimony given under cross examinations.
34. I find the evidence of Sergeant Marianna Eullentin and Police Sergeant Robin Legaie to be reliable cogent and consistent. They were witnesses of truth. The evidence of officer of Robin Legaie corroborated the evidence of Marianna Eullentin in all material particulars.  It is clear from her testimony that  the 1^st accused gave a voluntary statement under caution  to officer Eullentin in her office at Bois de Rose CID Headquarters in the afternoon on the 267^th of May 2022. He was informed of his rights to remain silent and his right to Counsel before the statement was taken. He was also cautioned in terms of the Judge’s Rule 2 and have been so cautioned he decided to give a statement, that he asked Eullentin to take down in writing. The statement was also voluntary in the sense that no coercion, threats force, intimidation, violence or inducement were offered by Police officers upon him during the taking of the statement or earlier.
35. I note that having allegedly given a statement which was involuntarily taken, a statement that was coerced out of him, the accused himself admitted under oath to have corrected (9) places on the said statement under caution. The Court wonders how could he have had the time, patience and energy to correct a statement under caution in such a way if it was allegedly taken in the way that he says.
36. I find that his version of fact that he was coerced by officer Davis Simeon to be untrue and concocted. If he was informed by officer Simeon that he needed to give a statement under caution in line with that of the 2^nd accused (in the sense that he will have to implicated himself further in terms of his culpability) how could he at the same  time say that Simeon also informed him that this will alleviate his sentence  and permit him to see his children.  This is a contradiction in terms and I found that the accused given his demeanour he made this story. 
37. The witness that the Defence call to support the claim of the 1^st accused gave evidence that totally discredited the 1^st accused case and contradicted it.
38. Miss Lautee upon being called denied that she was present when the accused  was giving his statement. She also denied that she was present while the audio recording was allegedly lawfully being made of the `1^st accused prior to him giving his statement to Eullentin. I find that this officer whose duty is to look after and cater for the mental heath and wellbeing of the accused is a witness of truth and accordingly I rely on her testimony in which she denied all the allegations of the 1st accused, that I find were mere fabrications.
39. There were no breaches of the Judges Rule 1964 that were read out to him in extenso before he gave his statement..
40. I also note that the accused never made any contemporaneous complaint at the Beau Vallon Police Station or at the Bois de Rose Police Station after the alleged coercion took place.
41. I am convinced that the Prosecution has proved beyond a reasonable doubt that the 1^st accused statement under caution was voluntarily given and it was not coerced by any Police Officer whether before or at the time of taking the statement under caution and that at any rate he was informed of his rights to Counsel under Article 18(3) of the Constitution and he decided to elect not to have a legal representation present at  the time of giving of the statement under caution.
42. As such the statement under caution is ordered to be admissible and can be led in evidence                           

43. Signed, dated and delivered at Ile du Port on 1^st February 2023

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Govinden C J