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State v Garo [1996] PGNC 3; N1521 (11 April 1996)

Unreported National Court Decisions

N1521

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1449 OF 1995
THE STATE
v
BENJAMIN GARO

Popondetta

Batari AJ
9-11 April 1996

CRIMINAL LAW - Evidence - Confessions and Admissions - Record of Interview - Admissibility - Onus of Proof.

CRIMINAL LAW - Record of Interview - Where unsigned - Discretion - Interest of Justice - Unfair circumstances - Admissions excluded.

Cases Cited:

State v August Toiamia (1978) N145

R v Gelu Gava (1962) N265

State v Alan Woila [1978] PNGLR, 99

McDermott v R (1984) 76 CLR, 501

Driscole v R [1977] HCA 43; (1977) 137 CLR 517

State v Gou Mubin [1990] PNGLR 99

Voir Dire

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

Counsel:

D Mark for the State

R Tupundu for the Accused

11 April 1996

BATARI AJ: The accused has challenged the admission into evidence of a Record of Interview conducted between him and Constable Sopale Apkas. He claims his confessions were obtained contrary to s.28 of the Evidence Act, Ch. No.48 which provides:

“28. Confessions Induced by Threats

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 threat or promise shall be deemed to have been induced by it unless the contrary is shown.”

As it transpired during the voir dire, the accused also seeks exclusion of the confession on the basis of unfairness.

The alleged arson for which the accused is indicted and stands trial occurred at Gabone Village on 4 July 1995. Police investigations into burning of a trade store owned by Alex Tali at the village led to the arrest and interrogation of the accused.

The first issue, which is whether the confession was induced by threats by persons in authority rests on the defence showing that the inducement preceded the confession and that such inducement had not been removed at the time of the interview. (Refer State v August Toiamia (1978) N145). He must present evidence and cross-examined the State witnesses on the facts he alleges. (See R v Gelu-Gaua (1962) N265). The onus however, remains with the Prosecution to prove beyond reasonable doubt that the confession was voluntarily made in the sense that it was made in the exercise of a free choice to speak or remain silent. (See State v Alan Woila [1978] PNGLR, 99. See also State v Kwanbol Embogol (1977) N91).

In his evidence, the accused stated that during the interview, Constable Sopale threatened to hit him with his fist when he denied the charge. Under persistent threats from the Constable he gave-in and simply agreed with what was put to him. He also claimed the interview was conducted without a corroborator; he was not asked to read the document nor was the document read back to him; he was not cautioned or explained his right to see a relative or lawyer of his own choice prior to the interview.

Constable Sopale’s evidence was that he interviewed the accused, in accordance with all proper safe guards. He advised him of his rights and administered the caution. He also allowed him the opportunity to see and talk to his relatives including a lawyer at 6 Mile Police Station where the interrogation was conducted. He denied hitting or threatening the accused either before or during the formal conversation. The interview, was conducted in the presence of Constable Mai.

His evidence continued that at the end of the interview, the document was signed by the accused and witnessed by Constable Mai. However when confronted with a document being proposed for admission into evidence and which document did not bear the accused’s signature, the Constable responded, “I must have made a mistake...” The Constable had clearly shifted his position when he realised that his assertions were contrary to the document in issue. It seems to me, Constable Sopale have given evidence ‘off the cuff’ so to speak. However it does not necessarily followed that he had been untruthful about the accused signing the Record of Interview. The significance of that evidence became apparent when the accused’s testimony revealed the existence of another document which he actually signed. His corroborator, Constable gave substantially the same evidence, though on some aspects, both differed when pressed on details.

Before I deal with the issue of inducement, I refer to the evidence which revealed the existence of a second document purportedly containing the accused’s confessions and bears his signature. That document, though not the subject of this voir dire was referred to several times by the accused in his evidence. The confusion over which document was in issue was exacerbated by pointless cross examination on the existence of a document that State did not rely on despite its existence. I am satisfied the accused had been truthful about being interviewed twice. He consistently stated that in one interview, he refused to sign the document but on another occasion he signed a two page document under threats from Constable Sopale. On both occasions, he denied being cautioned or given his rights prior to the start of the interview. The evidence of the existence of the signed record is relevant in assessing the credibility of State witnesses and the accused.

In his notice of objection to the admission of the Record of Interview, the accused specifically alleged that the investigating officer threatened to kill him. He also alleged the officer threatened to hit him on his abdomen which, to the officer’s knowledge had a medical condition. Throughout his evidence however, he stated merely that the investigating officers threatened to hit him when he denied the allegations. I am not satisfied that he was threatened prior to his confession. Even if I find that he was threatened, I could not be satisfied that the effect of the threats prevailed from the start and throughout the interview and that it was a decisive factor in causing the accused to speak. (McDermott v R (1984) 76 CLR 501).

I now turn to the issue involving the unsigned record.

The learned authors of Cross on Evidence, 4th Aust. Ed., at p.978 para 33735 state:

“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 records of interview as unfairly obtained.”

That passage has two legs to it: An unsigned record of interview is admissible to the extent that the accused has adopted it; or secondly, if part only is admitted only that part is admissible. Both situations relate to the contents of the confessional statement or record of interview that must be considered for admission or exclusion from evidence.

The paramount requirement is that the trial should be conducted fairly and that in all cases in which an unsigned record of interview is tendered, the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded. (See Driscoll v. R (1977) CLR, 517). Thus, the admission of an unsigned record would in some cases weigh unfairly against the accused. In other instances, it would be plainly right to admit an unsigned record where it is subsequently shown in court to have been fairly obtained and properly recorded and adopted by the accused as in the case of The State v Gou Mubin [1970] PNGLR 99.

In this case, there is no evidence from Constable Sopale that he read the record back to the accused. The only evidence on this came from the accused who said he was not read the record nor was he asked to read it. I accept the accused’s version as the State did not adduce evidence to the contrary. The evidence of Sopale which curiously stated that the accused wanted to give his story in Court implies the accused had exercised his right to remain silent or that he had reserved his version to be given later in court. That statement also supported the accused’s evidence that he did not want to talk, but only did so after persistent questioning by the police. In his evidence when asked the reason he did not sign the record of interview, he stated, “I did not know about that thing, so I did not sign”.

On the whole of the evidence on the taking of the accused’s confession, I am not satisfied that the accused was cautioned or given his constitutional right and the opportunity to exercise that right. I am also not satisfied that the unsigned record was fairly obtained and properly recorded and adopted by the accused. I consider that its admission would tip the scales unfairly against him. I refuse the admission of the record in the exercise of my discretion.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor