N627

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

PARO WAMPA & FIVE OTHERS (NO 2)

Goroka
Kapi DCJ

17 August 1987

CRIMINAL LAW - Evidence - Admissibility of record of interview - Record rejected - Application to re-open - Issue not to be re-opened on fresh evidence - Issue not to be re-opened on further evidence - Evidence on voir dire not evidence in trial.

Held

Where a judge in the course of a criminal trial has ruled on a voir dire on the admissibility of a record of interview and has rejected it:

(a) the State cannot seek to have the issue of admissibility of the record of interview re-opened by calling fresh evidence upon it;

(b) the State cannot seek to have the question of the admissibility of the record of interview reconsidered on the basis of new evidence in the trial where there is no relevant evidence already in the trial; the evidence on a voir dire rejecting a record of interview is not evidence in the trial unless re-led or admitted by consent.

R v Watson [1980] 70 Cr App R 273, considered and distinguished.

Cases Cited

R v Watson [1980] 1 WLR 991; [1980] 2 All ER 293; (1980) 70 Cr App R 273.
State, The v Paro Wampa [1987] PNGLR 120.

Ruling on Interlocutory Application to Re-Open Issue of Admissibility of Record of Interview

After the prosecution had called all of the evidence available to it it sought to have the issue of the admissibility of a record of interview which had been rejected re-opened. Kapi Dep CJ then ruled on this application.

Counsel

D Ashton-Lewis, for the State.
C Inkisopo, for the accused.

17 August 1987

KAPI DCJ: During this trial, the prosecution sought to lead in evidence an interview with the accused, Raun Paro. I rejected this record of interview on two bases:

(1) That for a period of three weeks — he was not given any constitutional rights under s 42 of the Constitution and in the exercise of my discretion I rejected it.

(2) That when the accused was finally given his constitutional right — he requested to see relatives. However, he was not given the opportunity to see them. In the exercise of my discretion I rejected the interview. My reasons are reported as The State v Paro Wampa [1987] PNGLR 120.

In respect of the first ground upon which I rejected the interview, this was not a point of contention as I have pointed out in my judgment. During the voir dire relating to Raun Paro, Constable Enat gave evidence to the effect that the accused was arrested some three weeks before the record of interview was conducted. It became apparent to me that the rights under s 42(2) of the Constitution arise at the point of arrest and not at the point of the conduct of a record of interview. I specifically raised the issue by asking Constable Enat whether the rights under s 42(2) of the Constitution were given to the accused at the time he was arrested. The constable answer by saying that he could not remember anything about this. Counsel for the prosecution left the evidence as it was without further re-examination or adjournment to investigate evidence relating to the three weeks the accused was in custody. I was left to understand that the accused was arrested three weeks before the record of interview and had been in custody for that period. I made my ruling on the basis of this evidence.

The trial proceeded with other evidence and another voir dire was run in relation to one of the accused. During the course of this voir dire, the prosecution discovered further evidence relating to Raun Paro. A Constable Ramsey Otu was called to give evidence that he was the arresting officer of Raun Paro and other accused. The substance of his evidence was that he had arrested these accused persons and that he had given the s 42(2) rights to all of them. However, during the cross-examination of this witness, it became apparent that he was not the arresting officer but that it was Constable Enat who was the arresting officer. This witness was called to give evidence during the voir dire relating to Raun Paro, and who had stated upon question from the Bench that he could not remember who the arresting officer was and whether or not the accused, Raun Paro, had been given his constitutional rights under s 42(2) of the Constitution. I proceeded with this particular voir dire and made my ruling.

The prosecution proceeded with other evidence against the accused persons. After the prosecution had called all the evidence available to it, this application now before me was made to reopen the question of the consideration of the admissibility of the record of interview with Raun Paro. As I understand the submission, the application is made on two separate bases. First, to reopen the voir dire relating to Raun Paro on the basis that there is fresh evidence to be led which could change the whole basis of my decision on the rejection of the record of interview. Alternatively, on the authority of R v Watson (1980) 70 Cr App R 273, to reconsider the question of the admissibility of this record of interview on the basis of the new evidence in the trial.

The first submission is based on general principles relating to rebuttal evidence to be called by the State after it has closed its case. These principles are said to be not directly applicable; they are said to be applicable by way of analogy. I find that if these principles are applicable, they would be applicable at a point before the decision on the issues is made. In my view, it is inconsistent with principle to reopen the matter after it has been decided. Questions of double jeopardy come in to it. In the present case, no such application was made by the State. It is also clear that when the issue was raised, and counsel has conceded that he directed his mind to the question but failed to direct any questions to the matter or failed to make an application to adjourn the case in order to obtain the evidence relevant to the issue. In fact Constable Enat who was called at this voir dire had all the evidence available to him in the police records at the Kainantu Police Station. He in fact was the arresting officer because he made entries in the charge book kept at the station. When I specifically raised the issue with him his simple answer was that he had forgotten who had made the arrest. It is incredible that this particular witness had much to offer in the evidence and the prosecution had not attempted to go over the evidence with him in preparation for the trial. Had the prosecution been more diligent in the preparation of this case, this constable would have given evidence relating to this matter at the time I raised the issue. The fact that there was failure on the part of the constable and the prosecution to go over the evidence before the trial is not a valid reason for reopening the case. I would reject this application on this ground.

That would have been the end of the matter but for the case of R v Watson. As far as I am aware the issue raised in this case has not been raised before in this jurisdiction. Indeed this was the first case in England. The first point to be made about this case is that it is not part of the law adopted by the Constitution in 1975. It is therefore not binding. The proper view is that there is a gap in the law on this question. I am therefore faced with the task of developing the underlying law. On this approach, the decision of the Court of Appeal in R v Watson only has persuasive value.

R v Watson stands for the proposition that a trial judge retains his control over the evidence ultimately to be submitted to the jury throughout the trial. Accordingly, if, having admitted a confession as voluntary on evidence given in the absence of the jury, that is, at a trial within a trial, the judge concludes, in the light of the subsequent evidence, that the confession was not voluntary, he may direct the jury to disregard it. The Court of Appeal concluded (at 277):

"We would emphasise that though as a matter of law the judge has throughout a trial the responsibility of doing what is practicable to prevent a jury acting upon evidence which the judge holds, or should hold, to be inadmissible, the occasions on which a judge should allow counsel to invite him to reconsider a ruling already made are likely to be extremely rare."

In order to clarify the restricted application of this principle one needs to closely study the facts of R v Watson. Watson was charged together with a Janet Laver with whom he was cohabiting. During the course of the trial, Detective Constable Parkington gave evidence against Watson. He alleged that Watson had made oral confessions to him. Watson alleged that the admissions were induced by the police by promises of favour. One of these promises was that certain charges would not be brought against Ms Janet Laver. Trial within a trial was run on the issues; the trial judge ruled that the admissions were made voluntarily. After this ruling, the trial proceeded. Constable Parkington was called again in the trial to give further evidence against the co-accused, Janet Laver. Counsel for the co-accused cross-examined the constable on the fact that the police had turned a blind eye to more serious charges against Janet Laver at one stage. It was on the basis of the evidence that was given by Constable Parkington as a result of this cross-examination that counsel for Watson sought to invite the trial judge to reconsider the admissibility of the record of interview against Watson.

It is significant to point out that counsel for Watson did not cross-examine this witness in order to open up the voir dire relating to Watson. This further evidence was adduced as a result of legitimate questions asked by counsel for Janet Laver. They happened to have a bearing because the questions related to his credibility on the same point. Counsel for Watson simply made a submission. Herein lies the true nature of this principle. It is this which the Court of Appeal described:

"The occasions on which a judge should allow counsel to invite him to reconsider a ruling already made are likely to be extremely rare".

Two things can be said of this, counsel cannot reopen the issue by leading further evidence nor can they reopen the matter related only to the issue already decided. It must be proper evidence relating to other legitimate issues before the court but may relate to the issue on which the admissibility of the record of interview was decided. Counsel for Watson did not have a second bite at the cherry on getting evidence before the court on this issue.

What evidence is there before me in the trial (as distinct from the voir dires) which would enable counsel for the State to invite me to reconsider the matter?

After the record of interview of Raun Paro was rejected another voir dire was run in relation to the accused, Samuel Anto. It was during this trial that an incredible course of events took place. Nobody in the prosecution knew who had arrested and charged this accused. In the first place, I was led to believe that it was Constable Ramsey Otu who had arrested the accused. It is also apparent from the evidence that all the constables who were connected with the case all managed to convince Constable Otu that he was the arresting officer. It was not until in cross-examination by counsel for the accused persons that Constable Otu was asked to produce the charge book. This was when the whole truth was revealed. It became apparent that Constable Otu was not the arresting officer and that the charge book had revealed that it was Constable Enat who was the arresting officer. It was during this voir dire that certain references were made to entries in the charge book relating to Raun Paro. This however was not relevant to the admissibility of the record of interview with Samuel Anto and strictly speaking should not be admissible in the voir dire. Even if this evidence relating to Raun Paro was admissible in the voir dire relating to Samuel Anto, it could not be said to be part of the evidence in the trial.

It is obvious from R v Watson that in order to reconsider the admissibility of the record of interview of Raun Paro, it is significant that there must be some evidence before me. In the light of this, both counsel have failed to address me on the question of the status of the evidence in a voir dire in the trial. There are authorities discussing this question in the National Court and in the Supreme Court decisions. I have not had the assistance of these decisions at Goroka. I therefore express my views on this point with this qualification in mind.

In a voir dire which is conducted in the traditional sense, as in this case, evidence is led only on the question of admissibility and as in the case before me, the accused may give evidence. I have no doubt that the evidence of the accused cannot be part of the evidence in the trial. The reason is obvious, he would be forced to give evidence before the end of the prosecution case in this way. Again it would be wrong in principle to admit the evidence of the prosecution in the trial without the evidence of the accused. That is unfair. However, if the State proposes to call evidence which is relevant for purposes of the trial which is already in the voir dire, that can be admitted in evidence by consent of the parties. This would save time. If there is no agreement, the evidence which is already in the voir dire can be led again at the trial. The proper view would be that unless evidence of the State which is in the voir dire is admitted by consent, it does not become part of the evidence in the trial. On this view, any evidence in the voir dire relating to Samuel Anto cannot be part of the evidence in the trial. There was no agreement by the parties to admit this evidence in the trial. On this finding, there would be no evidence upon which the admissibility of the record of interview of Raun Paro could be reconsidered.

Even if the evidence discussed above becomes evidence in the trial, the principle in R v Watson would not be applicable to the facts of this case. The principle in R v Watson is confined to its own facts — that is, where the record of interview is admitted and that there is further evidence in the trial which would prevent that interview from going to the jury. The reverse situation, as in this case, has a difficulty that it would be giving the prosecution a second chance and that the accused would be put in double jeopardy. I am not convinced that I should develop the underlying law to have this effect. In the end result, I dismiss the application on the second ground.

Ruled accordingly

_________________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.