Unreported National Court Decisions
N542
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
WANGABIN TONIENG, THOMDAI LAMASIS & BAMBA MAKIS
Kavieng
Kidu CJ
17 June 1986
EVIDENCE - EXERCISE OF DISCRETION TO EXCLUDE CONFESSIONAL EVIDENCE IN RECORD OF INTERVIEW - BREACH OF S.42(2) OF CONSTITUTION.
Counsel:
S. Lausi for the State
A. Robinson for the Accused.
REASONS FOR REJECTING RECORD OF INTERVIEW
KIDU CJ:  The State has, as part of its case, tendered a record of interview against the Accused Thomdai Lamasis. Mr Robinson for Thomdai submits that I should exercise my discretion in his client’s favour and reject the Record as it was conducted when the Accused was tired and his rights under s.42(2) of the Constitution were not read to him until the interview was nearing completion. There was a further reason but it was abandoned and that is that the Record of Interview tendered is not the original but a carbon copy.
CARBON COPY OF RECORD OF INTERVIEW
If Mr Robinson had pursued this aspect I would have ruled against him and the reason is that although the original Record of Interview was tendered during the Committal and now is missing, the carbon copy is signed by the Accused and the two Police Officers who interviewed him. The accused in his evidence in the Voire Dire identified the Record of Interview and his signature on each page of the Record of Interview.
SECTION 42(2) OF THE CONSTITUTION
The law is that the failure to inform a person arrested or detained of his rights under s.42(2) does not itself render a confession, admission or a Record of Interview inadmissible per se: Constitutional Reference No. 1 of 1977, (1977) PNGLR, 362. In that case the Supreme Court left the matter to the discretion of a trial Court to be exercised according to circumstances of a particular case.
The evidence shows that the Accused was “apprehended” by Police on the late afternoon of 5 February 1986 at his house at Maiom Village. He was told to get into a Police van and then driven to the M.S.C. Centre where he was identified by Ludmila, the Complainant, as one of the persons who had had sexual intercourse with her. From the M.S.C. Centre he was driven to the Police Station. This must have been either just before 6 pm or after. Constable Gareitz who conducted the Record of Interview was in his house at about 5 pm when he was called on to attend to an alleged rape case. He went to Maiom with other Police and searched for Ludmila. After that, Ludmila was located at the M.S.C. Centre and Thomdai was taken to the M.S.C. Centre where he was identified by Ludmila and taken to the Police Station. So that’s why I say the Accused was taken to the Police Station just before 6 pm or after. So from the time he was apprehended to the time he was taken to the Police Station there is no evidence that he was appraised of his rights under s.42(2) of the Constitution.
His evidence, uncontested, is that he was kept in the duty office at the Police Station for about an hour before he was locked up in the cell where he went to sleep. He says he slept in the cell for a long time. The interview commenced at 11.30 and so Constable Garietz who conducted it must have gone to the duty office before that and taken the Accused to the C.I.D. office. I have no reason to doubt that Constable Garietz did get the Accused from the duty office. So over 6 hours after he was taken into custody by the Police he was interviewed, having slept in the cell for “a long time” (in his - i.e. the Accused - own words). He had spent the whole day in his village. Apart from going to a store to buy smokes and going to meet some friends on the road in the afternoon, he had spent all day in his house. After this leisurely time in the village, before he was detained by the Police, and sleeping for a long time he was interviewed, I would not say he was tired when he was interviewed by Garietz at 11.30 pm. I cannot hold that he was so tired that it was unfair on the part of Constable Garietz to interview him at all.
Whether he was tired or not the evidence before me shows quite clearly that the Police did not observe his rights under s.42(2) of the Constitution.
From the moment he was detained either before 6 pm or after until Q.56 during the interview which commenced at 11.30 pm there was no observance by the Police of his rights under s.42(2). He was detained, and s.42(2) says:
“A person who is arrested or detained -
(a)      shall be informed promptly, in a language that he understands, of the reasons of his arrest or detention and of any charges 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.”
The above instructions are in mandatory terms and must be complied with by those who arrest or detain others. And in this country where most people, in my estimation, do not know the law (let alone what the Constitution says) it is imperative that those arrested or detained are appraised of their rights under s.42(2). There is no evidence that the Police forgot to tell the Accused of his rights for, as I have already pointed out, he was informed of them towards the end of the interview. Not only was the Accused not informed of his rights until the interview had nearly concluded, the fialure also resulted in the Accused not being given the opportunity to exercise the rights in s.42(2). Even towards the end of the interview when he was appraised of his rights and expressed the wish to see his grandfather in Maiom Village, a few minutes drive from Kavieng Police Station, he was not allowed to exercise the right, as the Police thought it was too late - it was 1.50 am. If there had been a serious respect for his right the Police should have stopped the interview until he had seen his grandfather the next day. If the s.42(2) rights are given to a person and a wish is expressed to exercise the rights then a real opportunity must be afforded to such a person to exercise his rights. See Schliebs v. Singh (1981) P.N.G.L.R., 264, at p.367.
In the circumstances so far before me I will not admit the Record of Interview at this stage. As O’Meally, A.J. did in The State v. Kwambol Embogol (Unreported Judgement No. N91), I will reconsider the matter if evidence is adduced that some other person did appraise the Accused of his rights when he was detained at his village or later at the Police Station.
Lawyer for the State: Public Prosecutor’s Office.
Lawyer for the Accused: Public Solicitor’s Office.