Papua New Guinea Law Reports - 1964
[1964] PNGLR 18
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V
SIRAKURAS
Madang
Smithers J
18-19 November 1963
CRIMINAL LAW - Confessions - Voluntariness - Standard of proof of voluntariness - Correct mode of administering caution to an accused person through interpreters.
In deciding whether the voluntariness of a confession has been proved to his reasonable satisfaction the trial judge must have regard to the evidence, the nature of the allegation made against the accused and the consequences which may flow from a finding that the allegation has been established. Where therefore on a charge of wilful murder the Crown tendered a confession allegedly made by the accused, an ignorant primitive native detained in custody at Madang far from his home area, to a police officer through two interpreters and the accused had previously denied participation in the killing and the evidence of the police officer did not indicate a realisation that he must in administering the caution make sure that the accused understands that he may remain silent.
Held:
The confession was not shown to have been voluntarily made and must be rejected.
The correct mode of administering a caution by a police officer to a native through native interpreters discussed.
Indictment:
The facts appear from the judgment.
Counsel:
Croft, for the Crown.
O’Regan, for the Accused.
C.A.V.
SMITHERS J:  The accused is charged with wilful murder and there is tendered against him a confession made to a police officer.
Mr. O’Regan who appears for the accused, contends that the confession was not made voluntarily.
The onus on this issue is on the Crown. The Crown must prove affirmatively that the confession was a voluntary one. It is not necessary to prove this beyond reasonable doubt but it must be proved to the reasonable satisfaction of the judge.
An opinion that a fact exists may be held by a person according to indefinite gradations of certainty, from the almost tentative opinion which would rest on the weighing down of the balance of probabilities by the merest featherweight, to complete certainty. A question arises therefore as to when it can be said that opinion ripens into reasonable satisfaction of the existence of the fact.
Such a state of reasonable satisfaction cannot be attained or established independently of the nature and consequences of the facts to be proved.
A tribunal of facts may be said to be reasonably satisfied of a fact is established, it feels justified in acting on the basis that it is in issue, and the gravity of the consequences of a finding that the fact is established, it feels justified in acting on the basis that it is established.
Having regard to the probability that in a case like the present the confession will carry perhaps decisive weight on the issue of guilt, the gravity of the consequences of a finding of voluntariness is of high degree. I think that this particular consequence is, in law within the range of consequences relevant on the issue of voluntariness.
It follows that before the tribunal can be reasonably satisfied that the confession was made voluntarily the evidence must be such as to induce satisfaction, not beyond reasonable doubt, but perhaps not far from it. It cannot exist alongside the persistence of any substantial doubt. In this case I do not feel justified in acting on the basis that this confession has been shown to be voluntary.
It is an essential condition of the voluntariness of a confession that the accused person should really understand that he is under no compulsion to speak, that he is free to speak or not to speak. Indeed it seems to me, with respect to the general run of cases in this Territory, that if this condition is satisfied a confession will seldom be rejected.
The fundamental problem for the judge therefore is whether he can be satisfied that the accused did understand, in particular, that he was free to refrain from speaking. In cases where an accused person comes to a police officer for the express purpose of confessing, and perhaps also to seek protection, proof of voluntariness is obviously easily provided. This, however, is not one of those cases. In this case the accused displayed a disposition to deny participation in the crime and did not confess until he had been in actual police custody in cells at Madang for at least one night and part of two days.
It appears that the crime took place in difficult country inland from the Sattelberg Ranges and remote from any centre. A police officer went to the area to investigate on Monday, 20th May, 1963. He located the place of the crime and satisfied himself that it was the work of a number of men. He spoke to the accused who denied participation in the crime. On Wednesday, 22nd May, he arranged for all those he thought might be implicated, including the accused, to accompany him to the isolated place where he believed the crime was committed. Here the police officer spoke to the accused again and cautioned him but the accused denied his participation in the killing. From admissions and other information received by him, the police officer drew conclusions, or suspicions, of guilt with respect to a number of men, including the accused, and he took them all to Madang in custody on the Wednesday or the Thursday. They were placed in the lock up at the police station. They were, and they understood that they were, officially under restraint in connection with the murder. At Madang the officer formally interviewed and charged six persons, including the accused. The accused was interviewed last of all on Friday, 24th May.
When spoken to in the bush on the Wednesday the accused had denied a knowledge of Pidgin and an interpreter, one Waia, had been used.
At Madang Waia had difficulty in making himself understood by the accused when he attempted to speak the language of the accused and the assistance of another interpreter, one Bogu, was sought. The conversation then went from the police officer in Pigdin to Waia, from Waia to Bogu in a language common to them and from Bogu to the accused in a language understood by the accused. It was at this interview the alleged confession was made.
The police officer frankly said that he hoped at this interview to obtain an admission by the accused of his participation in the crime. The examination of a person in custody for such a purpose is sometimes regarded as a matter for criticism but if proper care is taken any resulting confession may well be admissible. In this case I would have admitted this confession if I had been satisfied that the accused really understood that he was free not to speak.
The accused, an ignorant, primitive native, knew that he had been accused of the crime by the other persons in custody, he had been brought from his distant home to Madang against his will, he had spent at least one night in the cells. He can hardly have felt other than that he was at least under charge and had little hope of release. In addition, these natives have a natural habit of obedience to the white man and he may well have considered that he had lost his liberty in the matter of answering questions just as he had in relation to his personal freedom.
It is essential in regard to interviews carried out in any circumstances, and particularly when the accused is in custody or otherwise at a disadvantage, that the officer concerned should understand that the delivery of the customary warning is not just a piece of ritual. He should realise that the message, somewhat cryptically stated in Pidgin, that the accused need not answer if he does not so desire, is not easy to convey to the mind of the accused. If the message has to go through interpreters it has first to be conveyed to the interpreters and they have to be made to grasp the fact that the police officer is actually saying that the accused, who is generally expected to confess, is to be told that he may remain silent if he chooses. This is not easy in the case of unlearned native interpreters. Then comes the task of conveying the meaning of the message to the accused. Obviously the achievement of this result requires considerable concentrated effort, especially when two interpreters participate.
If the Court is persuaded that the officer in charge of the interview really understood that the warning was not ritual and that its message must be conveyed in reality, the Court has something to start with. When such an officer is able to swear as to the steps he took to make sure that he succeeded in conveying the message to the mind of the accused, there is good prospect of satisfying the onus of proof on the issue of voluntariness. In this case I detect no realisation on the part of the officer concerned that the task in hand involved him in making sure as a matter of reality that the accused really understood that he was free to remain silent. The circumstances were such that mere recitation of the customary caution might well be insufficient. Indeed I can hardly imagine that the ultimate delivery of this rather surprising message to the accused through two native interpreters could be achieved without a degree of mental and oral effort that would hardly be forgotten even by a busy policeman, especially, as in this case, after he had refreshed his memory from his notes of the interview. The officer concerned had, although he had so refreshed his memory, forgotten that two interpreters had been used.
In this case therefore the Court was not on firm ground in the initial steps in relation to the issue of voluntariness. In addition the prosecution took advantage of its right to restrict the evidence by interpreters to a mere recital that they interpreted properly. No attempt was made through them to prove that they understood the critical message and actually delivered it. While this is technically sufficient to make admissible the evidence of the police officer of the contents of the interpreted conversation, it is of no value in the matter of persuading the judge on the issue as to whether or not the message was conveyed to the mind of the accused. I am not persuaded that there was any reality in the conveying of this message to the accused and I am not prepared to act upon the basis that it was delivered or understood.
The statement of the law set above as to the degree of proof of voluntariness which is a condition of admissibility represents my assessment of the law in the light of Wendo v. Regina[xiv]1. It is there pointed out that proof beyond reasonable doubt is not required. The majority judgment describes the requisite degree of proof in the words of Starke J. in Sinclair v. Regina,[xv]2 spoken with reference to a confession alleged to be the result of a disordered mental condition. The learned judge said “the duty of the judge is to consider the probability of the mental condition affecting the truth of a confession in all the circumstances of the case and to decide whether there was a prima facie case for presenting it to the jury”. To apply this test to a question of voluntariness requires one to consider what amounts to a prima facie case for presenting the confession to the jury. It seems to me that in relation to the question of voluntariness there can be no such prima facie case until the judge is satisfied that the confession was voluntary. It is pointed out by Latham C.J. in Sinclair’s case at page 323 that the question in that case was not really one of the admissibility of a confession at all. The admissibility of the confession in that case did not depend on any of the special rules which apply to confessions. Although the judge might well have rejected the confession in that case he would not have done so on grounds related to voluntariness but on the ground that on the evidence the mind of the prisoner was so deranged that no jury should be permitted to take into account against him anything he had said. The description of the evidence being such as to pass the test of being prima facie admissible so that the jury could ultimately decide the question of its actual worth is no doubt apt for such a case and I do not interpret it as qualifying the well established proposition that I must be satisfied on the issue of voluntariness. The question is to what degree. In this problem I am greatly assisted by the observations of Mr. Justice Eggleston on probabilities and proof appearing in the Melbourne University Law Review, 1963, Vol. 4, p. 180.
Normally one speaks as though there are at common law two standards of proof, namely “satisfaction beyond reasonable doubt” where the issue of guilt in a criminal case is concerned, and “satisfaction on the balance of probabilities” where the issue is between two citizens. But Sir Leo Cussen said in R. v. Parker[xvi]3, “Now I do not take it that in judicial inquiries you have to be satisfied to the point of mathematical demonstration - as you require to be satisfied of the truth of a proposition of Euclid. All that is required is that the evidence is such as reasonable men would act on in their own serious affairs, and this is all that is intended, I think, when juries are told that they “must be satisfied beyond any reasonable doubt” in criminal cases or “must be satisfied” in civil cases.”
If we add to this what was said by Dixon J. (as he then was), in Briginshaw v. Briginshaw[xvii]4, we learn that even in civil cases it is not sufficient merely to weigh the probabilities and act on the merest inclination of the scales. He said “in civil proceedings the seriousness of an allegation made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.” He points out in Murray v. Murray[xviii]5, that for this purpose there is no distinction in meaning between “satisfied” and “reasonably satisfied”.
In Helton v. Allen[xix]6 these words of Dixon J. were affirmed by the majority of the Court. In that case it was sought to exclude the defendant from the office of executor on the ground that he had himself unlawfully killed the testator. The question was tried with a jury. A new trial was ordered because, though the standard of persuasion required in support of an indictment did not apply, nevertheless the effect of the learned judge’s direction would lead the jury - (a) to disregard the gravity of the issue and to lose sight of the consideration that reasonable satisfaction is not independent of the nature of the facts to be proved, so that the graver the allegation the greater should be the strictness of proof demanded, and (b) to think that they should make a mere comparison of the probabilities of guilt rather than consider whether they were really satisfied that the defendant did kill the testator.
I conclude, therefore, that in relation to the issue of voluntariness I am relieved of the burden of being satisfied beyond reasonable doubt but I must, at least, remember that in relation to that issue the proof must be such as to enable me to feel justified in making the finding having regard, inter alia, to the nature of the allegation and the consequences involved in the finding.
Ruled accordingly.
NOTE:
In the result the accused was convicted on other evidence and was ultimately sentenced to fifteen years imprisonment.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[xiv]37 A.L.J.R. 77.
[xv]73 C.L.R. 316.
[xvi](1912) V.L.R. 152.
[xvii](1938) 60 C.L.R. at 362.
[xviii](1960) 33 A.L.J.R. 524.
[xix](1940) 63 C.L.R. 691.