Papua New Guinea Law Reports - 1979
[1979] PNGLR 11
N181
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
GOLI GOLU
Waigani
Saldanha J
11-12 January 1979
15-19 January 1979
CRIMINAL LAW - Evidence - Confessions - Admissibility - Breach of Judges’ Rules - Applicability of Judges’ Rules - Rules of practice only - Overriding principle, whether voluntary - Exercise of court’s discretion where breach of rules - Record of interview ruled admissible - Evidence Act 1975, s. 86[xv]1 - Constitution, Sch. 2.2.
In ruling on the admissibility of a record of interview, which contained confessional material and which it was alleged was obtained in breach of the Judges’ Rules (Eng.):
Held
(1)      The test of admissibility of a confessional statement made under s. 86 of the Evidence Act 1975, is whether it is a voluntary statement in the sense that it has not been induced by any threats or promises nor obtained by fear of prejudice or hope of advantage held out.
Ibrahim v. The King, [1914] A.C. 599, at p. 609, referred to.
(2)      Breach of the Judges’ Rules (Eng.) does not render a confessional statement inadmissible if it is voluntary, though the court may in its discretion refuse to admit such a statement where there has been a breach of the Rules.
R. v. Voisin, [1915] 1 K.B. 531;
R. v. Wattam (1952), 36 Cr. App. R. 72, at p. 77;
R. v. Prager, [1972] 1 W.L.R. 260;
R. v. May (1952), 36 Cr. App. R. 91;
R. v. Lee (1950), 82 C.L.R. 133; and
McDermott v. The King (1948), 76 C.L.R. 501, referred to.
(3)      The Judges’ Rules (Eng.) which are part of the underlying law of Papua New Guinea by virtue of Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea have no greater effect in Papua New Guinea than they do in England, where they are not regarded as rules of law but as rules of practice drawn up for the guidance of police officers.
R. v. May (1952), 36 Cr. App. R. 91, at p. 93, referred to.
(4)      In all the circumstances the record of interview should be admitted in evidence.
Interlocutory Ruling
This was a ruling given, during the course of a trial on a charge of wilful murder, on the admissibility of a record of interview which contained confessional material.
Counsel
J. W. McMaster, for the State.
E. I. M. Nwokolo, for the accused.
19 January 1979
SALDANHA J: The prosecution seeks to put in evidence the record of interview which Constable Kaupa conducted with the accused. The defence objects on the ground that the accused was not cautioned. There is also an objection on the ground of oppression. I have not read the depositions or the record of interview but I am informed by both counsel that the record of interview contains confessional material.
The record of interview does not contain a note of the words of the caution administered nor even a note to the effect that a caution had been administered. Both Constable Kaupa and Constable Grace Jojoga, who were present at the interview, say that the accused was cautioned. Constable Kaupa says that he forgot to record this. The accused denies that he had been cautioned. Having regard to Constable Kaupa’s evidence that he made notes of the interview as it progressed and in view of the fact that the record of interview does not indicate that a caution had been administered I rule in favour of the accused that he had not been cautioned.
In our jurisdiction the law regarding admissibility of confessions is contained in s. 86 of the Evidence Act 1975 which reads as follows:
“A confession which is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.”
Our law is similar to English law and the principle applicable to the admissibility of confessions is stated in the following passage from Lord Sumner’s speech in Ibrahim v. The King[xvi]2:
“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.”
Dr. Nwokolo contends that having regard to Sch. 2.2 of the Constitution the Judges’ Rules (Eng.) are a part of our underlying law. I agree with this submission. The relevant part of Sch. 2.2 of the Constitution reads as follows:
“... the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law ...”
Dr. Nwokolo seems to be arguing on the basis that the Judges’ Rules are rules of law. The Judges’ Rules can have no greater effect here than they have in England and the following cases show quite clearly that in England they are not rules of law: See R. v. Voisin[xvii]3; R. v. Wattam[xviii]4; R. v. Prager[xix]5. In R. v. May[xx]6 Lord Goddard said:
“The test of the admissibility of a statement is whether it is a voluntary statement. There are certain rules known as the Judges’ Rules which are not rules of law but rules of practice drawn up for the guidance of police officers; and if a statement has been made in circumstances not in accordance with the Rules, in law that statement is not made inadmissible if it is a voluntary statement, although in its discretion the court can always refuse to admit it if the court thinks there has been a breach of the Rules.”
In R. v. Prager[xxi]7 a statement made by the accused was admitted as having been made voluntarily notwithstanding a breach of the Judges’ Rules.
Rule I of the Judges’ Rules reads as follows:
“When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.”
At the time the accused was being questioned he was undoubtedly in custody on suspicion of having killed a person but he was not charged with any offence nor told that he would be prosecuted. He was told that he had not been charged with any offence. Constable Kaupa was therefore perfectly within his rights in questioning him.
Rule II of the Judges’ Rules so far as relevant reads as follows:
“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence ...”
Dr. Nwokolo contends that there has been a breach of this Rule. He says that Constable Kaupa had received a bush knife from Inspector Marioso and had been told that the accused had killed a person and that earlier that day Constable Kaupa had accompanied a policeman to Port Moresby General Hospital to photograph the body of the deceased. He maintains that all this is evidence which was sufficient to have afforded Constable Kaupa reasonable grounds for suspecting that the accused had killed a person.
Now, Constable Kaupa was stationed at Port Moresby and the deceased was killed at Kwikila some sixty-eight miles away from Port Moresby. Constable Kaupa had not been to Kwikila. He was not the investigating officer and he had not spoken to any of the witnesses. Inspector Marioso was not present at the fight. He would appear to have rushed to Kwikila and rushed back, and, if he acquired any information more than that the accused had killed a person there is no evidence that he had conveyed this to Constable Kaupa — not even evidence that he had heard the accused say that he had killed a person.
Constable Kaupa had been informed by Inspector Marioso that the accused had killed a person presumably with the bush knife which had been handed over to him. It is fair to assume that he must have known that the accused was alleged to have killed the person whose body had been photographed earlier that day, but, in my view this is hardly evidence which would give him reasonable grounds for suspecting that the accused had killed a person.
I find that there has not been a breach of r. II.
Even if there had been a breach of r. II as pointed out earlier a mere breach of the Rules is not a ground for excluding the confession if it has been made voluntarily and I see no grounds for exercising my discretion in favour of excluding the confession. I find that the prosecution has proved that the confession was not induced by any threats or promises nor obtained by fear of prejudice or hope of advantage held out by Constable Kaupa.
Another objection to the admissibility of the confession is that it was obtained by oppression. This arises in the following circumstances. When informed of his constitutional rights the accused expressed a desire to speak to his lawyer. He was allowed to telephone his lawyer. The accused told Constable Kaupa that his lawyer would be coming later. Constable Kaupa told the accused they would continue with the interview in the meantime. The lawyer arrived while the interview was in progress. Dr. Nwokolo contends that Constable Kaupa should have waited for the lawyer to arrive before conducting the record of interview and his failure to do so amounts to oppression.
When the accused’s lawyer arrived he told Constable Kaupa to continue, adding that he did not wish to interfere and stayed until the end. There is nothing to indicate that the interview continued against the accused’s wishes. On the contrary when defence counsel asked the accused: “When he said this did you think you had a choice or not to continue?” the accused replied: “I knew that if I did not want to say anything I had the right to keep my mouth shut but he asked me questions, so I answered them.” Nothing indicates more clearly than this answer that the accused was not obliged to say anything unless he wished to do so.
I have cited only English cases because the controversy centred around the Judges’ Rules (Eng.). There are many Australian cases on the point, the two most in support being McDermott v. The King[xxii]8 and R. v. Lee[xxiii]9.
I rule that the confession is admissible.
Ruled accordingly.
Solicitor for the State: K. B. Egan, Public Prosecutor.
Solicitor for the accused: Ikenna Nwokolo & Co.

[xv]See infra p. 12.
[xvi][1914] A.C. 599, at p. 609.
[xvii][1915] 1 K.B. 531; 13 Cr. App. R. 89.
[xviii](1952) 36 Cr. App. R. 72, at p. 77.
[xix][1972] 1 W.L.R. 260; 56 Cr. App. R. 151.
[xx](1952) 36 Cr. App. R. 91, at p. 93.
[xxi][1972] 1 W.L.R. 260; 56 Cr. App. R. 151.
[xxii](1948) 76 C.L.R. 501.
[xxiii](1950) 82 C.L.R. 133.