DC309

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 27 OF 1996

Police
Complainant

V

John Kapu
Defendant

Goroka: M. M. Pupaka
1996: 15th & 16th July

Criminal Law - Evidence - Confessions - admissibility - Voir dire to determine - Caution - Fairness - Court’s discretion to refuse admission.

Criminal Law - Evidence - ROI - Admissibility - Voir dire to determine - Whether unfairly obtained confessional statement more than 1 year earlier in ROI prejudicial to the accused - Fairness - Court’s discretion to reject.

Cases Cited
The State -v- Mana Turi [1986] PNGLR 221
The State -v- Win Kwainfelin [1986] PNGLR 106
Reg -v- Kar Moro & Ors [1975] PNGLR 14
Const. Reference No. 1 of 1977 [1977] PNGLR 362
The State -v- Allan Woila [1978] PNGLR 99
Maxwell Arthur Schliebs -v- H. Singh [1981] PNGLR 364
Reg -v- Aingo [1983] PNGLR 271
The State -v- Kuya [1983] PNGLR 263
The State -v- Kiki Hapea [1985] PNGLR 6

Counsel
Sgt. Kongua for the Prosecution.
Mr. K. Kot for the Defendant

24th July, 1996

M.M. PUPAKA: During the trial of the accused defense objected to the use of a confessional statement on the day of the commission of the offence, and a record of interview (ROI) conducted some 15 months after the confessional statement was first obtained. A voir dire was conducted upon the formal objection of the defense to the use of the ROI. It was never clear as to whether the prosecution intended to tender the confessional statement also but the defense plainly objects to it too being tendered in any event. This is the ruling on the trial within the trial and the reasons for ruling.

The accused John Kapu is charged that he on the 12th of November, 1994, drove a motor vehicle, a Toyota land cruiser, upon a public street, being the Okuk Highway, dangerously thereby causing the death of one Robert Walbopes contrary to section 328 (2) (5) of the Criminal Code. The accused entered a not guilty plea to the charge.

The prosecution case depends largely on the contents of the ROI and the confessional statement. They have only three witnesses, who do not know the cause or causes of the accident. The witnesses did not say much from which reasonable inferences can be drawn against the accused. The first witness was a bystander who testified seeing the vehicle going off the road and overturning. He did not say and can not say why the vehicle overturned. The other two are the police informant and his collaborator at the ROI. The informant was called to testify at the voir dire. He was called in the trial proper to have tendered the ROI and perhaps the confessional statement.

The accident occurred on the day as mentioned. There were no immediate fatalities but the deceased died later that day at the Goroka Hospital. The accused also ended up at the Goroka Hospital. From there the accused went to the Goroka Police Station to report the accident. At the police station the arresting officer, Constable Martin Kupu questioned the accused. It appears there was at least one other policeman present there at the time. It also appears some sort of a confessional statement was somehow obtained from the accused at the police station. The confessional statement was put into writing and the accused was asked to sign the same and he did so. The accused says he was placed in the cells overnight, and the next day he was driven to the bus stop and dropped off/released there. However the police informant gave a conflicting account. The latter says they conveyed the accused to Ginidoga Community School and left him there with a friend of his, (the accused’s). The police informant could not say if the accused was kept in the cells overnight. There was no examination of both the accused and the police informant on these discrepancies.

After that nothing was done for more than a year. On the 31/01/96 the accused was taken into custody by the Mendi police and was held there without being charged for sixteen (16) days. He as conveyed to the Goroka Police Station on the 16/02/96, and was further kept there for the next two days, the 17th and the 18th, and the ROI was conducted on the 19th after which the accused was allowed police bail of K200.00.

It is now contended for the accused that the police unfairly obtained the confessional statement on 12/11/94, in that the rights of the accused under the Constitution, [s. 42], were not afforded to him. It is argued that the accused was, at all material times, really under the custody of the police within the meaning of 2. 42 (2) of the Constitution, and that it was not only vital for the police to caution the accused but it was always imperative that the accused be allowed a chance and a opportunity to see a lawyer or a family member before the statement was obtained from him. Additional submission was made that the accused was clearly mentally distressed after a person had died that day. To this the prosecution says that the accused was never under police custody, much less, under arrest. The police had no intention of arresting him. It is further said that the accused was always free to leave the police station at any time.

The ROI, it is said, should not be admitted into evidence because the police had access to the prior confessional statement, which in fact was used to put the various questions to the accused. It is said this scenario lead or amounted to what is said to be a unfair cross - examination of the accused, especially based on a unfairly obtained confessional statement. It was also submitted that no real opportunity was afforded to the accused for him to talk to a lawyer or a family member. To this the prosecution argues that the accused was in fact allowed to exercise his Constitutional rights and he did exercise such rights, (the accused talked to members of his family during the lunch break and at the end of the interview). It is said, the fact that the accused actually got to exercise his rights after the ROI, was his own choice.

The Confessional Statement

Examination and cross-examination of the accused and the prosecution witnesses in the voir dire were chiefly directed as to whether the accused was cautioned, and whether he was asked to speak to a lawyer or a family member. Neither defense council nor the prosecutor thought to seek clarification as to when the confessional statement was obtained or given. It is clear enough that there was a caution administered - an option for the accused to speak or remain silent. However it is not clear just when that caution was put to the accused. The accused said something about being told to talk or shut up. He said ".... so I shut up my mouth and he [the arresting officer] put me in the cell". The arresting officer, (Martin Kupu), said he administered the caution before the accused’s statement of confession was taken. Defense council, probably not quite clearly aware of the import of this assertion, neither sought to clarify the accused’s evidence nor cross-examine the constable on the point.

Nevertheless only one of two possible things could have happened. Either the accused was asked certain questions to which he provided some answers, and upon realizing the nature of those answers the police witness cautioned the accused there and then and the accused said no further, (like he said ".... so I shut up and he put me in the cell"), or he was cautioned before he said anything at all. It is not possible for the accused to have kept silent ("...so I shut up"...) and also make confessions which were reduced into writing, which he then signed. It can only be one or the other - both can not be true at the same time. Defense council generally conceded that a caution was administered. I do not think he realized the anomaly at all as to the timing, as to when that the caution was administered. I doubt that council would have so conceded had he realized. Be that as it may, the anomaly, as I find it to be is quite apparent on the evidence (transcript of the witnesses’ evidence) and I can never be clearly satisfied one way or the other.

The accused was no doubt in custody. I must find that on the evidence. The arresting officer says otherwise though. He says the accused was free to move out at anytime. Unfortunately I do not share that view. For one the accused was locked up in the cells, allegedly until the next day. It could very well be that he was never locked up in the cells overnight, but I can never be completely sure of that for lack of clarity on that aspect. On the other hand the fact that the accused was free to go without giving any statement was never communicated to him.

The need to caution persons held in detention or being arrested have been discussed in a number of cases: Reg -v- Aingo [1983] PNGLR 271; The State -v- Kuya [1983] PNGLR 263; The State -v- Mana Turi [1986] PNGLR 221; and The State -v- Kiki Hapea [1985] PNGLR 6. In the latter case it was held at:

"The absence of a proper caution is a matter to be taken into account in determining whether a confessional statement is voluntary in the sense of being made in the exercise of a free choice to speak or be silent".

I have said I can not be fully satisfied as to actually when the accused was cautioned – before or after the confessional statement was obtained. The prosecution was properly apprised of the accused’s assertion or should have been so at any rate. It was open for the prosecution to cross-examine on this aspect, so as to put to the accused in no uncertain terms that he was cautioned before he made any statements. This was never done and hence I have my doubts in this regard. The onus is on the prosecution to prove otherwise: Reg -v- Kar Moro & Ors [1975] PNGLR 14.

I have made certain findings on the evidence as to the proper administration of caution and the issue of whether the accused was in police custody at the relevant times.

Defense council wisely refrained from making any attacks on the voluntary ness of, if not the interview, the confession. Lack of voluntary ness was neither raised as a ground nor is it apparent on the evidence and I wish not to dwell on any discussions on the matter. Suffice to say that the onus is on the prosecution to prove voluntary ness if the lack of it is fairly raised, and that onus has to be discharged on the beyond reasonable doubt standard: The State -v- Allan Woila [1978] PNGLR 99. Unfairness would not necessarily presuppose involuntariness, but in the circumstances I should say that the prosecution has also shown to my satisfaction that there was no threat or promises or anything of that sort brought to bear on the accused. I should be satisfied then that the confession was otherwise voluntary.

Unfairness was considered at some length in the case of The State -v- Mana Turi (supra) under similar circumstances. A ground of unfairness in that case was said to be as having -

".... regard to any breach of the rights given by the Constitution, s. 37 (1), (the full protection of the law), and s. 42 (2), (3) and (4), (the rights of persons arrested or detained) [and] judged according to the degree of seriousness or impropriety involved".

In the instant proceedings the prosecution contends that the need to afford the accused his s. 42 (Constitutional) rights did not arise because he was not under arrest and was not yet charged. However the ruling in the Mana Turi case (supra) puts that argument to rest.

The circumstances; the accused being apprehensive with worry and the general atmosphere prevailing at the time should have alerted the police to not only properly caution the accused but also facilitate a real opportunity for the accused to have a lawyer or a friend present. The notion of ‘real opportunity’ was discussed in the case of Maxwell Arthur Schliebs -v- Singh [1981] PNGLR 364:

"(1): A detainee whom police wish to interview should not only be told of his rights to consult and to have present a lawyer or a friend, but should be given a proper chance to decide whether he wishes to exercise that right or not, and if he does, a real opportunity to exercise that right in practice.

(2): If the opportunity to consult a lawyer or friend is not extended confessional material obtained in a interview maybe regarded as unfairly obtained, depending on circumstances, and maybe excluded from admission into evidence"(emphasis added).

Even then it is for the Court to consider whether to allow into evidence such material, considering all the circumstances of the case. The failure to comply with all or any of the provisions of the Constitution -

"...does not for that reason alone render admissions by an accused person inadmissible as evidence on his trial". (Constitutional Reference NO. 1 of 1977 [1977] PNGLR, 362).

In the light of the foregoing, and after having carefully considered all the circumstances of the case, I am of the view that it could be quite unfair to admit the confessional statement into evidence, if ever the prosecution were to seek to do so, even though the intention has not been made clear.

The Record of Interview

The accused was held for some 18 days in police custody before the ROI was conducted, 16 days at Mendi and 2 days at Goroka. As he has not addressed me on this aspect, I very much doubt if defense counsel fully or at all grasped the significance of this fact. However that does not mean that I should ignore it. The evidence is quite clear.

Again defense counsel refrained from raising the issue of voluntary ness in the ROI. The ROI was conducted on the 19/02/96, and there were no threats, use of force, promises or anything of that sort brought to bear upon the accused. The fact that the ROI was otherwise wholly voluntary is, as it seems, common ground as I alluded to earlier.

The defence also raised the issue of unfairness to the accused in relation to the ROI. The following arguments are put forward in support of this contention: It is said the confessional statement obtained on the 12/11/94 was used by the interviewing officer to elicit answers from the accused which were in effect confessional statements themselves. It is said the questions put in the ROI were really a cross-examination of the accused as to what he said previously on the 12/11/94. It is submitted that the attempt by the police to get the accused to confirm what he said on the day of the accident, a cross-examination such as it were, is unfair. The defence contends that a real opportunity to exercise his rights pertaining to s. 42 of the Constitution was not afforded to the accused. Whilst conceding that the accused elected to use the phone, to contact his family, after the conclusion of the ROI, counsel submits that in the spirit of the mandatory provisions of the Constitution (s. 42) the accused ought to have been properly advised of his rights so that he would be clearly aware of those rights.

At the beginning of his evidence in the trial proper Constable Martin Kupu actually agreed with counsel’s suggestion that he had the confessional statement of the 12/11/94 with him when he interviewed the accused on the 19/2/96. Then the ROI was objected to in the course of his evidence. He probably was better apprised of the issues the next day, for when he testified in the voir dire, the constable sought to correct his earlier statement by saying he had not meant what he had said the other day and that he must have misunderstood the question. Of course I can not confirm if this could be possible or not. I have not seen the ROI. I should think any suggestion by the prosecution, indeed Constable Martin Kupu, that the nature and the line of questioning at the ROI was not in someway or other influenced by the availability of the confessional statement would, given that more than a year had passed, be a harder row to hoe. The prosecution however did not seriously challenge or refute the suggestion that the ROI questions were tainted by the availability of an otherwise unfairly obtained confessional statement from the accused of more than a year ago. The possibility that the questions were tainted is more than likely in the circumstances. As to why the accused was never charged for more than one year is not open for enquiry now, but the police must be barred from refreshing their memory with the use of otherwise unfairly obtained confessional statements.

In the exercise of my discretion I would reject the ROI from being used in evidence, and that quite apart from the grounds raised too. I am prepared to exercise my discretion in favor of the accused for the reason alone that he was held without being charged for 18 days. There is no evidence that the accused was allowed or may have been allowed to see or talk to a lawyer or a friend during that time. No reasons are put forward as to why he was kept in police custody for that long. Other Records of Interview have been rejected for the police keeping accused persons in custody under similar circumstances for far shorter periods than in this case. See for instance the case of The State -v- Win Kwainfelin [1986] PNGLR 106. Needles to say in the instant case it is quite unfair on this accused for the ROI to be admitted into evidence in the circumstances.

The upshot of the foregoing discussions is that I uphold the objection to the tendering into evidence in this case the Record of Interview conducted between the accused John Kapu and the police-interviewing officer Constable Martin Kupu on the 19/02/96. I also for the reasons discussed, rule that the confessional statement obtained from the accused on the 12/11/94 be excluded in the trial against the accused.

Sgt. Kongua: Complainant
Pryke & Associate: Defendant