Court/Judicial body: Supreme Court of Samoa
Date: July 2, 2009 CRC
Provisions: Article 4: Implementation of rights Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Background: Vailopa, age 16, was charged with murder and held overnight in police custody. The following morning, he was brought to the police station to see his mother who had come to check on him. At the police station, he allegedly made a spontaneous confession to a police officer. The officer immediately interviewed Vailopa outside of the presence of his mother and obtained a signed statement in which he admitted to assaulting the victim. Another police officer claimed that he and Vailopa then went outside the police station to smoke a cigarette, where Vailopa again spontaneously admitted to assaulting the victim. The prosecution wanted to admit Vailopa’s statements as evidence against him at trial, Vailopa’s counsel objected, and appeals were made to the Supreme Court to rule on the statements’ admissibility.
Issue and resolution: Juvenile justice; right to legal assistance. The Court refused to allow Vailopa’s alleged confessions into evidence, ruling that admissions made by an accused child outside of the presence of their parent, guardian or caregiver should be excluded from evidence.
Court reasoning: Vailopa’s signed statement, even if made voluntarily, was unfairly and improperly obtained because it was made in the absence of his mother, who was present in another part of the police station. Moreover, the failure during the police interview to provide Vailopa with the assistance of counsel or his mother, whom Vailopa was brought down to see, violated Vailopa’s right to promptly receive access to legal and “other appropriate assistance” under CRC Article 37(d). In addition, the Court interpreted Article 40(2)(b)(ii) of the CRC to require that a parent, guardian or caregiver be present before the police may interview a child about their involvement in an alleged offence. The Court further indicated that even spontaneous admissions made in the absence of a parent, guardian or caregiver should be excluded from evidence in light of the government’s obligations under the CRC.
Excerpt citing CRC and other relevant human rights “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 [(Samoa)] 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…. 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  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  WSSC 1996: “The Court of Appeal as the highest court of the land decreed in Attorney General v Maumasi  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  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  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  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  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  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  FM KSC 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  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  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  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  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  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. … 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…. For completeness I would add that … 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.” Follow up: Vailopa eventually entered a guilty plea the the charges against him, and was sentenced in April 2010 to serve 3 years in a Youth Facility. In determining the sentence, the judge considered Vailopa’s young age, his acceptance of resonsibility, and the circumstances of the offence. The full decision is available here: http://www.paclii.org//cgi-bin/disp.pl/ws/cases/WSSC/2010/66.html?query=vailopa CRIN Comments: CRIN believes this decision is consistent with the CRC. Children in conflict with the law must be provided with legal assistance during all stages of investigation, and should always have the option to have their parent or guardian present whenever they interact with the police or prosecution. As noted by the Court in this case, any information obtained from children accused of committing an offence outside the presence of their attorney or adult representative should not be considered as evidence. Citation:Police v. Vailopa, Supreme Court of Samoa,  WSSC 69 (2 July 2009). Link to Full Judgment:http://www.paclii.org/ws/cases/WSSC/2009/69.html This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. Countries Samoa CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.