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State v Aihi [1979] PGNC 3; N187A (14 February 1979)

Unreported National Court Decisions

N187A

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
AVIA AIHI AND 4 OTHERS

Waigani

Saldanha J
12-14 February 1979

FIRST INTERLOCUTORY JUDGMENT

SALDANHA J: On the 21stember 1978 Sub Sub Inspector Michael Hairai conducted a record of interview with the accused Porewa Wani. Counsel for the prosecution sought to have it admitt evidence. Her counsel objected on the ground that the answ answers given by the accused to the interrogating police officer were not given voluntarily but obtained by intimidation and threats, alternatively, that the record of interview was conducted in circumstances of unfairness and oppression and should be rejected in the exercise of the court’s discretion.

I held a voir dire. Sub Inspector Michael Hairai, Sgt. Semel Buka, Superintendent Tasion and Chief Superintendent Selva gave evidence for the prosecution. The accused gave evidence on her own behalf.

There is no dispute that the accused was properly cautioned and I find that she was informed of her constitutional rights. The accused says that Sub Inspector Hairai banged his fist on the table and threatened to throw her out of the window if she did not answer his questions and that she was so frightened that she urinated and defaecated in her clothes and had to be sent home to change them.

Sub Inspector Hairai and Sgt. Semel Buka who was present at the interview deny that Sub Inspector threatened to throw her out of the window or intimidated her in any way. They say that in the course of the interview the accused expressed a desire to go to the toilet and that she was allowed to do so. They say that it was not until she returned that they came to know that she had soiled her clothes and had been taken home to change them. They deny that the soiling of her clothes had anything to do with the manner of her questioning.

Sub Inspector Hairai said that towards the end of the interview he sent for Superintendent Tasion who asked accused a number of questions. Superintendent Tasion spoke in English and the Sub Inspector translated what he said into Motu. Superintendent Tasion asked the accused if she had been mistreated and accused said she was all right. She would appear to have made no complaint to Superintendent Tasion that she had been threatened by Sub Inspector Hairai. This is confirmed by Superintendent Tasion. He said he found her to be normal and not upset in any way.

When questioned by me Superintendent Tasion said it was not usual for a superior police officer to attend a record of interview and that it was the first time he had done so. My questions were prompted by the desire to make sure that Superintendent Tasion was not being called to cover up the fact (if fact it were) that the accused had urinated and defaecated through fright.

It is in these circumstances that the prosecution called Chief Superintendent Selva as a witness. From his evidence I am satisfied that the procedure of a police officer attending a record of interview is recommended in a manual entitled “The Commonwealth Police Training Centre, Papua New Guinea officers Course”. This manual is used in the Commonwealth Police Training College in Canberra for training police officers from Papua New Guinea. The procedure is designed to ensure that the interview is being properly conducted. Chief Superintendent Selva has said that he himself has attended records of interview and questioned accused persons to make sure that the record of interview was being conducted fairly and in accordance with the Judges’ Rules. I am satisfied therefore that it is normal procedure and that for some reason Superintendent Tasion is unaware of it.

In his cross-examination of Sub Inspector Hairai and Sgt. Semel Buka defence counsel alleged - apparently on instructions - that she had been threatened by Sub Inspector Hairai. But when she herself was cross-examined she said that she had been threatened by Sgt. Semel Buka. There was no mistake about this. Both police officers were brought into court and the accused was asked to point out the one who had threatened her. She pointed at Sgt. Semel Buka. I am satisfied that Sub Inspector Hairai and Sgt. Buka are speaking the truth and that it is the accused who is lying.

The accused denied that Superintendent Tasion asked her if she had any complaints, but, again, I am satisfied that both Sub Inspector Hairai and Superintendent Tasion are speaking the truth and that it is the accused who is lying.

I find therefore that the answers given by the accused during the interview were given voluntarily and not under duress.

The grounds upon which I am asked to reject the record of interview in the exercise of my discretion are as follows. The defence say that the accused was not given the option to speak in her own language, Roro, that the interview was conducted in circumstances of oppression in that it lasted some eight hours during which time she was not given a break and not given food.

Both Sub Inspector Hairai and Sgt. Semel Buka said that accused spoke Motu well. The accused admits she speaks Motu well. The fact that the accused was not given the option of speaking in Roro but was questioned in Motu, a language which both the interrogating officer and the accused spoke well, is not a good reason for the exercise of my discretion in her favour.

It is true that the record of interview lasted some eight hours and eight hours is a long time. The normal practice is for interrogating officers to record the interview in the language used by the accused, and if that language is other than English, to make an English translation later, after the interview is over. Had the Sub Inspector done this the interview would have lasted half the time. But for some reason best known to himself Sub Inspector Hairai chose to type down the questions and answers in both Motu and English as he went along thus doubling the time of the interview. When one takes into account the time taken up in typing - and the Sub Inspector said he is a slow typist - the actual time spent in the interrogation would be less than four hours. So it is not as if the accused had been under a great strain through being questioned throughout the eight hours that the interview lasted.

There was a break when she went to the toilet, and, I am satisfied that she would have been allowed to go to the toilet as often as she wanted to. From the evidence of Sub Inspector Hairai I am satisfied that she was given betelnut and cigarettes during the interview and lunch when the Sub Inspector and the Sergeant had lunch.

I find that there has been no unfairness or impropriety or oppression such as to warrant the exercise of my discretion in her favour and I therefore rule that the record of interview is admissible.

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: B.J. Cassells

Solicitor for the Accused: C. Maino-Aoae, State Solicitor

Counsel for first and fourth accused: A.J. Alpine

Counsel for second accused: M. Unagui

Counsel for third accused: J.E. Byrne

Counsel for fifth accused: B.B. Sakora