N858

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GOI MUBIN

Lae
Doherty AJ

2 March 1990
5-6 March 1990

CRIMINAL LAW - Evidence - Confessions and admissions - Record of interview - Mere unsigned - Discretion to admit - Were fairly obtained and properly recorded - Admissible to went adopted by accused.

Held

An unsigned record of interview, to the extent that the accused has adopted it, is admissible in evidence if fairly obtained and properly recorded.

Voir Dire

This was a ruling on the admissibility of a record of interview.

Counsel

I Langford, for the State.
C Inkisopo, for the defendant.
Cur adv vult

6 March 1990

DOHERTY AJ: The defendant is charged on a count of stealing with violence and on a second count, of receiving goods known to have been stolen. Section 532(5) of the Criminal Code (Ch No 262) applies to cases where a defendant is charged on two counts of stealing and receiving.

Evidence has been adduced of a break-and-enter and holding-up of guards at Wabu Trading store in Bulolo on 10 August 1989 and the theft and destruction of property therein.

The defendant has challenged the admission of a record of interview which took place at the Bulolo Police Station between him and a police officer, Paul Ofoi. He bases his objection on s 28 of the Evidence Act (Ch No 48), which provides that:

"A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such treat or promise shall be deemed to have been induced by it unless the contrary is shown."

The provision is a mandatory one and both the State and the defence have adduced evidence in this case.

The defendant was arrested about two days after the robbery by an officer other that Paul Ofoi. Shortly after his arrest, he was charged with an offence of being in possession of goods, reasonably believed to have been stolen, and appeared at Bulolo District Court, where he pleaded not guilty and was remanded in custody.

Paul Ofoi thought that the defendant was arrested on Sunday, 13 August, and would have appeared in court the following Monday, that is on 14 August. This is borne out to some extent by the defendant’s own evidence though dates differ. On 18 August, Demos Waki, the Police Station Commander of Wau Police Station, came to Bulolo, where the defendant was held in custody, and questioned the defendant concerning the incident and the goods.

The defendant in his evidence had said that he had been taken by the police from the compound where he lived on Saturday to the Police Station. He had been hit by a policeman from Chimbu, whom he referred to as Simon and he was taken to court on Friday and was taken for questioning on Friday. Friday was 18 August, which is the same date as Demos Waki says he came to Bulolo Police Station. The defendant said members of the Mobile Squad were around the table during the questions and on that same night around 1 am an officer from Wau, Waki, brought him from the cells. He alleges that he was hit by members of the Mobile Squad who surrounded the table while Paul Ofoi questioned him.

Waki says he came to Bulolo on 18 August; as I have noted this is a Friday, and he arrived at 10 pm. Some time after a briefing, Mubin was brought from the cells to be questioned by him. He gives no explanation as to why he should start questioning at such an unusual hour of the night. The defendant says that Waki burnt him with a match on his beard whilst he was being questioned and told him if "I did not tell I was as the cause of the trouble, he would tell the Mobile Squad to hit me. I was scared of myself and I told him those things I left in the bush". Demos Waki denies molesting the defendant in any way but says that the defendant admitted that he was involved in the robbery and led him and other policemen to the place where the goods were hidden. It is not clear why, having denied it in District Court, the defendant should then change his mind.

I find Waki extremely selective in his memory. Some things he remembered clearly and some things he could not recall at all. He did not impress me as a straightforward and honest witness. He says he does smoke and carries matches. Whilst this in itself is not unusual, it indicates that he would have matches in his possession at the relevant time.

He does not account for the odd hours at which he decided to question the witness or why he should have brought him from the cells at this unusual time. If the record of interview had relied entirely on the exchange between Waki and the defendant or was recorded at that time between Waki and the defendant, I would have no hesitation in refusing to receive it. However, from the evidence, the actual record of interview did not take place on 18 August but on 24 August 1989, that is some six days later.

On that occasion, the interview was between Paul Ofoi and the defendant with Vincent Baiyu as corroborator.

The defendant makes no reference at all to this interview of 24 August. He talks of Ofoi questioning him; he says:

"I went to court on Friday I came back and stayed in court from 9.00 to 9.30. They took me to question me, Paul Ofoi was sitting on the other table, the Mobile Squad was surrounding the table while Paul Ofoi questioned me, they hit me, they questioned me from 9.30 to 11.00. Later they locked me back in the cells. The same night around one o’clock one of the officers from Wau brought me from the cell."

The mistreatment that the defendant refers to is prior to the interview with Waki, that is, on 18 August. The defendant says that Ofoi used to write with a book and biro. The defendant makes no reference to the interview on 24 August which was recorded by typewriter, according to Ofoi. The possibility that there was only one interview recorded with a book and biro and later transcribed on a typewriter was not suggested by counsel nor was it put to the witnesses.

The record of interview states that it was suspended while the defendant phoned the office of the Public Solicitor. This was not challenged by the defendant in cross-examination or in his own evidence nor was any evidence adduced by the defence that no such call was received. I therefore accept that it occurred on 24 August.

The defendant said he denied the truth of this allegation before Ofoi on the Friday and before Waki.

There were six days between those original denials and the record of interview. There is no suggestion of any further mistreatment or beatings between 18 and 24 August, neither does the defendant say that he was subjected to some form of intimidation that kept the fear alive in his mind or that he was subjected to any form of mistreatment during the record of interview on 24 August. I do not consider that the law requires the threat to be a completely immediate one, the standard is that the defendant’s will has been overborne by a threat or promise and the threat can be any continuing one or continuing intimidation. There is no suggestion of continuing intimidation here nor any pressure being put on the defendant that kept the fear alive in his mind. It appears to me that six days is sufficiently distant for the pressure not to operate on the mind of the defendant, especially a defendant who strenuously denied the offence under pressure.

For these reasons, I would admit the record of interview. Mr Inkisopo raised another legal point which was the fact that the defendant had not signed the record of interview.

The defendant’s explanation for not signing is: "I did not know about trouble." That is a repetition of what he says he told Waki. I am unable to find the library edition of Cross on Evidence but the Australian edition of the same authority referred to by Mr Inkisopo states (1979), par 18.132 at 535:

"An unsigned record of interview is admissible to the extent that the accused has adopted it; if part only is adopted, only that part is admissible. There is a discretion to exclude unsigned records of interview as unfairly obtained."

The situation before me does not appear to be a case of inability through illiteracy (also referred to in Cross) but one of refusal to sign.

It is important to bear in mind that it is the content of the interview that must be considered for admission or exclusion. Written records of what has been said by the interviewer and the defendant have become standard practice but as Phipson on Evidence, 12th ed (1976) says at par 823:

"The form of a confession is in general immaterial and if the substance of a confession be given, failure to prove the actual words will not exclude it, though it may affect its weight. It may be made either orally or in writing."

The question of the admissibility is that it was fairly obtained and, it follows from that, that it was both fairly obtained and was properly recorded. If the defendant makes an answer and the police shorten or paraphrase that answer and in doing so twist the meaning, then that answer could, in my view, be excluded and that part of the recorded interview would not be adopted by the defendant.

I have dealt with the events leading up to this record and stated if it had been a record of what took place on Friday, 18 August, then I would have excluded it but there is no evidence to suggest the answers were twisted or were obtained as a result of a threat or physical violence on 24 August and I therefore consider the record is admissible even though it is unsigned.

Record of interview admitted

______________

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