Unreported National Court Decisions
N1446
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 398 OF 1995
THE STATE
v
JOHN JULIO, MARA INIMO, DEBENI OTAUARI, ISOA SUI, MAGAIMA DAGAME AND HARUA MUDUPAI (NO 1)
Waigani
Passingan AJ
21 March 1996
The six accused were jointly charged with seven counts of arson pursuant to s. 436 of the Criminal Code, Chapter No 262.  The charges relate to the burning of the rubber factory, the rubber  testing laboratory, cuplump shed, toolshed, weigh bridge, a mazda utility and a motor cycle on the 11th of November, 1993.  During the course of the trial the State sought to tender in evidence the following documents:
(a)      the alleged Confessional Statement of the accused Mara Inimo;
(b)      the alleged Confessional Statement of the accused John Julio;
(c)      the Record of Interview of the accused Mara Inimo;
(d)      the Record of Interview of the accused John Julio;
(e)      the Record of Interview of the accused Debeni Otavari;
(f)      the Record of Interview of the accused Mugama Dagame;
(g)      the Record of Interview of the accused Isoa Sui; and
(h)      the Record of Interview of the accused Isoa Sui.
Counsel for the accused objected on the following basis:
(1)      That these documents were obtained involuntarily and therefore inadmissible.  The accused Isoa Sui was assaulted in the presence of the accused Debeni Maguma and Harua.  They were all put in fear.
(2)      Defence main contention is that the village leaders were threatened by the Police on the 21st of November, 1993.  They were threatened by an order to provide the list of suspects by 9:00 am on the 22nd of November, 1993.  Failure would result in the burning down of Merani village by the Police.  That the alleged “appeal” was nothing more than threats.
(3)      That the list of suspects taken by the village leaders was obtained illegally and therefore inadmissible.  The Police exceeded their powers by using the list to obtain statements from the accused Isoa Sui and John Julio and also in conducting the six Records of Interview.
(4)      That there was a breach of s. 57 of the National Constitution.
Counsel:
K Popeu for the State
B Takin for the accused
21 March 1996
PASSINGAN AJ:  The six accused pleaded not guilty to all seven counts of arson.  On the voire dire I heard evidence from six state witnesses and eight defence witnesses.
The existence of the two alleged confessional statements are not in dispute.  The accused Isoa Sui and John Julio did not deny making the statements to the two Investigating Officers.  Though to a certain degree tended to confuse the difference between the statements and the actual Records of Interviews.  It is also admitted that the six Records of Interviews or their contents were made by each accused.
Defence evidence on the voir dire consisted of the sworn evidence of the six accused,  the Village Councillor and the Village Court Magistrate.  They were called in relation to the list of suspects they had provided to the Police at Moreguina.
Briefly, their evidence was that the village leaders had met and prepared the list without consultation with the six accused and the rest of those on the list.  The suspects were handed over to the Police on the 22nd of November, 1993.  The accused also confirmed in evidence that they had no knowledge and were not aware of the list until Police at Moreguina called out their names on the 22nd of November, 1993.  The following points are brought out clearly in the defence evidence.  The list of suspect was prepared without the knowledge and consent of each accused.  And that each accused gave a false statement to the police about their involvements in the crime.  They have done so on advise from village leaders in order to protect Merani Village.
Now what is the Defence main point of objection ? Are the documents inadmissible because they were obtained under threats and actual assault on the accused Isoa Sui?  Or simply that the contents of all those documents are false although made voluntarily.
The standard of proof of voluntariness of a confession is that of proof beyond  reasonable doubt, with the onus upon the State.  See the following authorities RV Fari Pako (1962) No 259, RV Amo Amuna [1963] PNGLR 22, 23 and RV Wendo and Others [1963] PNGLR 217, 228.
The State must prove beyond reasonable doubt that the two confessional statements and the six records of interview were made voluntarily.  In other words the State must prove that those statements were made in the exercise of a free choice to speak or remain silent.  A statement of the principle which have guided the courts in Papua New Guinea is set out in McDermott VR (1948) 76 CLR 501, 511, (quoted at p. 222 Criminal Law and Practice of Papua New Guinea):
“If [the accused] 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 in the result of duress, intimidation, persistent importunity or sustained on undue insistence or pressure, it cannot be voluntary.”
The present case has its own unique circumstances.  There had been a robbery on the 11th of November, 1993.  The deceased who comes from Merani Village was killed.  Police went to the village and made an “appeal” to the village leaders to assist identify persons from the village who might have been responsible for the damage caused to the Moreguina Department of Primary Industry Rubber Factory and other properties.  Village leaders gathered and made a list of suspects.  There is dispute on whether or not the accused were at the gathering and had given their names voluntarily.  The Accused and others were handed over to the Police on the 22nd of November, 1993.  They were charged with various summary offences including the present charges of arson.
The evidence is that on the 22nd of November, 1993 the accused and others were handed over to the Moreguina Police Station.  Senior Constable Nichols Wiugu questioned the accused Mara Inimo in relation to the incident on the 11th of November.  That the accused was cautioned and his constitutional rights explained.  Sergeant Augustine Amarua was present.  The accused Mara agreed with the contents of the statement and signed.  The interviewing officer then continued with the Record of Interview after administering the caution and again explaining the accused’s constitutional rights.  Constable Allen Tabaru was present during that interview.  The Accused read the Record of Interview and signed it.
John Julio is the second accused whose confessional statement is objected to.  He was brought into the Police Station by village leaders.  A list of suspects was handed over to the Police.  Sergeant Augustine Amarua took charge of him, cautioned him and explained to him his constitutional rights.  Constable Nicholas Wingu was present.  The Accused then read the statement himself and signed.  Sergeant Augustine continued with the Record of Interview in the same manner.  The caution and constitutional rights were explained.  At the end of the Record of interview the accused read it and signed.  The date when the alleged “appeal” was made is in dispute.  State witnesses say it was made on the 13th of November, 1993.  Defence witnesses say it was made on the 21st of November.  Defence Counsel submits that it could not be the 13th of November as the villagers were mourning the death of the victim of the robbery.
The next point of dispute concerns the events that took place on the 13th November, 1993.  State’s evidence is that the Police Station Commander at Moreguina, the Mobile Police Commander and other policemen visited Merani village on the 13th of November.  A meeting with village leaders was held where some refreshments were served.  The two police commanders then made an “appeal” to the village leaders to assist identify those who may have been responsible for the destruction to various properties at Moreguina.
The Village Councillor and the Village Court Magistrate giving evidence for the Defence told the Court the visit on the 13th of November was brief.  But that the demand for a list of suspects was made on the 21st of November, 1993.
Counsel for the accused submits that it was more than an “appeal”.  That the demands were to the effect that village leaders prepare a list of suspects by 9:00 am on the 22nd of November, 1993.  Failure to do so would result in the burning down of Merani village.  That this was a threat.
On the evidence before me I find that those events alleged by the State took place on the 13th of November, 1993.  The Police Station Commander was not cross-examined on this point.
It is not in dispute that the accused and others were handed over to Moreguina Police with the list on the 22nd November, some 9 days after police visit on the 13th of November, 1993.
Defence counsel submits that the facts and circumstances of this case are similar to the case of the State v Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138, a decision by his Honour Mr Justice Pratt.  The accused were on a trial on a charge of robbery.  Objection was taken to the tender of confessional material and a record of interview conducted and recorded some eighteen hours after the confessional material had been obtained.  His Honour found the confessional statement to have been made voluntarily and admitted it.  The Record of Interview was rejected.  At pages 140-141 His Honour said:
“The upshot of this is that in my view the first point must be decided against the accused.  I am satisfied beyond reasonable doubt that the statement was taken voluntarily and secondly.  I find nothing positive in the conduct of the Police that should cause me to exercise my discretion against the admission of the confessional statement.  I therefore receive into evidence.  I will not however, admit the record of interview.  The essential point concerning that document is that Anton should have been charged on the afternoon  of 24th September and charged with the serious offences which he originally admitted to Sgt Major Purai.”
His Honour continued at p. 141:
“I do not think the system which seems to have been developing of late of taking a detailed confessional statement followed up with a record of interview is one which should be encouraged by the courts.  Either the Police must be satisfied if they get a long confessional statement and leave it at that or they must avoid anything except perhaps the honest admission if they wish to pursue the matter by way of record of interview.  Certainly they will be in great danger of having the records of interview struck down if it takes place on the day following the taking of a detailed confessional statement.”
With respect I adopt His Honour’s statements.  The final test however, as I have quoted earlier is whether or not the minds of the accused Mara Inimo and John Julio were overborne at the time they made those statements.
I am satisfied beyond reasonable doubt that the statements of Mara Inimo taken on the 22nd of November, 1993 and the Statement of John Julio taken on the same day were obtained voluntarily.  Accordingly, I admit both Statements into evidence.  In the exercise of my discretion I reject both records of interview taken shortly after those statements.
Defence Counsel further submits that this Court exercise its powers under s. 57(1) & (3) of  the Constitution to declare that the list of suspects was obtained illegally and that the four remaining records of interviews be rejected.
Section 57 (1) of the Constitution provides:
“A right or freedom referred to in this Division shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for that purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the Court, unable fully and freely to exercise his rights under this section by a person acting on his behalf whether or not by his authority.”
Section 57 (3) provides:
“A Court has jurisdiction under subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).”
Counsel for the accused made reference to a Supreme Court decision - Constitutional Reference no. 1 of 1977 [1977] PNGLR 362.  It is submitted that this Court has the power to declare that the list was illegally obtained and therefore the alleged confessional statements together with all the Records of interviews should be excluded from the evidence.
I find nothing  positive in the evidence as to the conduct of the Police on the 13th and 22nd of November, 1993.  I am satisfied that it was a normal police approach to make an “appeal” to the village leaders for assistance.  I find that there is no evidence of any impropriety or assault on the accused or any villager for that matter.  I am satisfied that the provisions of s 42 of the Constitution were complied with.  I am satisfied beyond reasonable doubt that the records of interviews of Debeni Isoa Muguma and Horua were obtained voluntarily.  I therefore admit those records of interview into evidence.
Rule accordingly.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: BT Gobu & Associates Lawyers