Unreported National Court Decisions
N91
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
KWAMBOL EMBOGOL
Madang, Madang Province
O’Meally AJ
6-7 April 1977
EVIDENCE - Confession - Admissibility - failure to inform accused of right to speak or remain silent - fairness - exercise of discretion.
CONSTITUTION - person arrested or detained - Section 42(2) - non-compliance - effect on admissibility of confession subsequently made - Section 23 - discretionary power of National Court - exercise of discretion conferred on National Court.
RULING ON EVIDENCE
O’MEALLY AJ:  The State seeks to tender a Record of Interview against the accused who is charged by virtue of s.7(d) of the Criminal Code Act with the crime of wilful murder.
The State alleges that on 27th August the accused counselled her unmarried sister to kill the sister’s illegitimate child and that the sister in fact did so. The evidence at this stage discloses that on that day the accused’s sister gave birth to a female infant who was not thereafter seen alive. Acting upon information he received from two women who were present at the birth, one Akumai Etoki sent word to a tax gathering patrol which was in the vicinity and a patrol officer, Phillip Kanora, despatched a policeman, Snr. Const. Arungi, who was with him on the patrol to the village of Porpor where the accused and her sister lived and where the birth took place. Const. Arungi met Mr Kanora at Mutung village in the evening of 28th August. He had the accused and her sister with him. On the morning of 29th August Mr Kanora commenced collecting taxes at about 8 o’clock. At 1.30 p.m. he interviewed the sister of the accused and after that interview the accused. Before commencing the interview with the accused he said to her: “You have the right to say what you want to say when I ask you and that what you say will be written down and given in evidence against you if I find from this interview or believe that you were a party to that offence.” He said the accused was willing to answer the questions. Having recorded the interview he did not immediately read it back to her but took it to Josephstall, had it typed out and read back to her. He asked her twice “Do you understand everything in the paper? Is everything on paper what you say?”, to which she replied “Yes”. She then made her mark upon the Record of Interview.
Objection is taken to the admission of the Record of Interview on two grounds. Firstly, the rights conferred on the accused by Section 42(2) of the Constitution were not afforded to her nor were they explained as required by that Section. Secondly, it has not been shown that the confession was free and voluntary. No voire dire was conducted and the admissibility of the Record of Interview is to be determined upon the evidence as it now stands.
It is convenient to deal with the second ground first. A confessional statement can be admitted only if it is shown to be voluntary. This does not mean that it was volunteered, but rather was made in the exercise of a free choice to speak or remain silent: R. v. Lee[mxxxi]1. A precise exposition of the law was given by Dixon J. (as he then was) in McDermott v. R.[mxxxii]2 where he said: “If he speaks because he is overborne his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.” It is argued on behalf of the accused that the words used by the Patrol Officer did not convey to her that she had the right to elect to remain silent or to speak, as she chose. Counsel argues that in the absence of such a choice freely exercised any confession cannot be said to be voluntary. However, it seems to me that it is not necessary that the choice in those terms need be explained before it can be said that a choice was exercised. Regard may be had to the surrounding circumstances to ascertain whether an accused spoke because of some importuning or threat or whether it was because he chose to do so. The exercise of that choice is a fact to be determined by the trial judge on the material before him. It is also argued that the confession ought not to be admitted if it were improperly or unfairly obtained. No suggestion of impropriety is made on the part of the Patrol Officer though it is argued that the warning, if it can be called that, failing as it did to explain the rights given by the Constitution and failing to inform the accused she did not have to say anything was unfair to the accused and that what was said following it was accordingly obtained by unfair means. Now, “if the confession is not voluntary it is not, as a matter of law, admissible: R. v. Lee[mxxxiii]3 (supra). However, though voluntary, if it were obtained by improper or unfair means its admission is a matter to be determined by the exercise of the discretion of the trial judge. What is unfair will need to be determined by the circumstances of each case together with a consideration of factors such as the age, education, sophistication, intelligence and background of the accused.” But a confession is not inadmissible merely because no or no adequate caution was given to the accused: R. v. Riley[mxxxiv]4 nor that the accused was in custody at the time: Cornelius V. R.[mxxxv]5. In deciding in this case whether there was any unfairness to the accused it is important not to forget that she is an uneducated villager. In The State v. Hayden[mxxxvi]6 the learned Chief Justice excluded from evidence a confession of a sophisticated man made after a police officer had said: “We will now interview you. I shall ask the questions, you will answer them...” In R. v. Cleary[mxxxvii]7 the father of an accused said to him before he made a confession “Put your cards on the table, tell them the lot, if you did not hit him they can not hang you.” His conviction was quashed on appeal on the basis that the words of his father were capable of amounting to an inducement to make a confession. In each of these cases imperative words were uttered before the confessions were made. But in the present case no words of an imperative nature were addressed to the accused before she was interviewed; she was told “You have the right to say what you want to say” and the only evidence on the matter is that she was willing to answer questions. In the absence of any evidence to the contrary I am constrained to find the confession was a voluntary one and the failure to warn her in precise terms that she need not say anything was in all the circumstances only a venial breach of the rules of fairness and in the exercise of my discretion I would, if this were the only ground of objection, admit the Record of Interview.
The first ground of objection is based upon s.42 (2) of the Constitution which is in these terms:
“(2)    A person who is arrested or detained:
(a)      shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b)      shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c)      shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,
and shall be informed immediately on his arrest of his rights under this subsection.”
This subsection confers rights but it does not make any provision in relation to the consequences which follow if those rights were not in whole or in part afforded to a person to whom the Section applies. Every right conferred upon a person imposes a corresponding duty upon some other, but Section 42(2) does not provide who it is who is to afford or explain the rights it confers. It seems reasonable to me that these duties fall upon a person arresting or detaining another. Section 23 of the Constitution is in the following terms:
“23.    SANCTIONS.
(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:
(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00, or
(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,
or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.
(2)      Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.
(3)      Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).”
It confines its provisions to cases where an act is prohibited or restricted or a duty is conferred. Section 42(2) does not impose a duty but creates rights, but I would think without wishing to become involved in analysis of Hofeld’s concept of a right and of jural correlatives that s.23 would permit the National Court to make an Order where there has been a breach of s.42(2). However, counsel for the accused says that if it is found the rights given to a person to whom the Section applies were not afforded or explained there is no discretion in a judge to admit a confession and it is mandatory that confessional statements be excluded. I have already observed s.42(2) does not itself provide any consequence for non-compliance. The only Section which conceivably may do so is Section 23, and then only if it is accepted that there is a duty which corresponds to the rights conferred by section 42(2). Section 23 gives jurisdiction to the National Court to make Orders, but it is purely a discretionary power. If it were shown that there had been a serious or significant breach of the rights conferred by s.42(2) or if it were not shown that those rights had been afforded and explained then apart from any other Order he might make a judge would be entitled in the exercise of his discretion to exclude a confession obtained after such breaches or until it is shown that those rights were afforded and explained.
Section 18(1) of the Constitution provides that the Supreme Court has original jurisdiction to the exclusion of other courts as to any question relating to the interpretation or application of any provision of a Constitutional Law. At first glance this provision would seem to require that whenever in any case in any court, other than the Supreme Court, a question arises which requires the application of any provision of the Constitution the matter must be referred to the Supreme Court. If that were the true position the provisions of Sections, eg. 22, 23, 39, 42 and 57 would be of no effect. However, Section 23 with which we are presently concerned here expressly confers upon the National Court power to make Orders and I do not think the framers of the Constitution intended that when one of those provisions of the Constitution was to be applied it could only be done by Order of the Supreme Court. The Constitution itself authorises the National Court to apply certain of its provisions including those contained in Section 23.
Returning to the present case, the evidence shows that the accused left her village in the evening of 28th August with Constable Arungi and her interview with Mr Kandora commenced in the afternoon of 29th August after that with her sister which commenced at 1.30 p.m. was concluded. Though there is no evidence before me at what time it began at least eighteen hours must have expired between her leaving the village and then. There is no evidence that at the time she left Porpor the accused was under arrest, though the circumstances of her going to Mutungu would at least support a finding she was detained. I doubt she would have been able to leave had she been inclined to do so and accordingly I find she was a person to whom s.42(2) of the Constitution applied. There is no evidence before me, at this stage, that she was informed promptly in a language that she understood, of the reasons for her arrest (if arrest it were) or detention. It may be that she was later promptly informed of the charge against her when the decision to charge her was taken, but that is a matter which and the effect of which on the ruling I am required now to make does not arise and it may, if appropriate, be considered later. The rights conferred by paragraph (b) of Subsection (2) of Section 42 depend upon the practicalities of the situation and in the instant case, in the exercise of my discretion, I would not be inclined to exclude the Record of Interview for failure to afford or explain the rights so conferred. I take a similar view in relation to the exercise of my discretion on a consideration of paragraph (c) of the subsection and its application to the facts of this case. However, in absence of evidence that she was afforded and explained her rights under paragraph (a), in the exercise of my discretion, I will not admit the Record of Interview. If evidence is later adduced that those rights were afforded and explained then the document may be again tendered and consideration will then be given as to whether it ought to be admitted.
Solicitor for the State: K.B. Egan, Public Prosecutor
Counsel: M. Maraleu
Solicitor for the Accused: W.J. Andrew, A/Public Solicitor
Counsel: W.J. Andrew

[mxxxi]82 C.L.R. 133
[mxxxii]76 C.L.R. 501 at 511
[mxxxiii]82 C.L.R. 133
[mxxxiv]1908 St.R.Qd. 141
[mxxxv]55 C.L.R. 235
[mxxxvi]Unreported 10 Nov 1976 N70A
[mxxxvii]48 CAR 116