State v Mari and Maiga [1997] PGNC 97; N1609 (13 August 1997)

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CRIMINAL LAW - evidence - crimes to be fully investigated - fairness to the accused - confessional evidence to be recorded - be voluntary - requirement for caution to be given - Oral confessions proof - voluntariness - and sufficiently corroborated.

The accused Karuka Mari and Mido Maiga are jointly charged on indictment with the wilful murder of the deceased Veneao Meana. Theh pleaded not guilty toty to the charge.

PASSINGAN AJ:N AJ: The accused Karuka Mari and Mido Maiga are jointly charged on indictment that they on the 14th day of December, 1995 at Kwikila in Papua New Guinea wilfully murdered one Veneao Meana. Toth pleaded not guiltyhe tyhe charge.

It is thes the State case that on the 14th day of December, 1995 about 6.30 a.m. the deceased (the driver) and otheft Kwikila Station for Port Moresby. Between the Stat Station and the old Kwikila Station as they were driving up a hill they were held up by about 4-5 masked men. The men were armed with 2 home-made guns and bushknives. f the robbers theed a gun gun at the windscreen reen of the vehicle injuring two passengers. Tn demanded for the motor otor vehicle Keys. It ieged took the KK4s, K4s, K4,000.00 in cash and other properties,ties, including a particular pair of spectacles belonging to one of the paers.& In the course ofse of the robbery one of the robbers stabbed the deceased driver. He0; He diedantly. I60; It is the State cast that the Two accused were parties to the common unlawful purpose of committing a robbery. And they are liable he defe def the deceased by virtue of s. 8 of the Criminal inal Code.

Prosecution evidence consisted of 16 wse's statements which were tendered by consent (Exhibits "Ats "A-J", "N & O"), the Post Mortem Report (Exhibit "K") and two Records of Interviews (Exhibits "L1-L2 " & "M1-M2"). One wi (John Kuno) the Arre Arresting Officer gave sworn testimony.

I will now summarise the contents of the Statements. Exhib, B, C, D and O are sare statements of the passengers in thor vehicle. The evideevidence is mais y as to the robbery. There ha been any identifintification of any of the robbers.&#Exhibits E, F, G, Q & Rmp; R are the statements of the Police witnesses who attended the scene and carried out a search for possible sts. Following the fooe footprints from the scene of the robbery they reached Geresi village about 10.30 a.m.. At a river near illage thee the Police witnesses located a green bag containing the vehicle ignition Key, 3 cartridges, a passenger's reading gl, two masks, a woollen cap, a baby shirt, 2 cool weather jackets and some wet clothesothes. A d firearm was found next next to a house in the village. They bt the items back to k to Kwikila Police Station. The shotgun wantified by w by ws Gurai (Exhibit "P") "P") as a gun he had borrowed that morningrning from one Weki. The gun had mud on it.Police later returned e village. Witness Gure Ragai and Weri were picked uped up for questioning. The Police then returnetheo the village and aended the accused Mido Maiga and another. The accusedcused Karuka Mari was apprehended the next morning and a fourth suspect was appded in the afternoon.

I will return to the Police wice witnesses later but at this point I wish to consider the statement of Gagai (Exhibit "P"). O60; On the day of Decembecember, 1995 between 8.00 a.m. and 9.30 a.m. he was at his house at Geresi Village. Then Senior Constables Joe Mamana and Kila arrived and informed him about the robbery. He as wife then kept a wata watch. he saw the accused Mido Mado Maiga coming out of the bushes wearing a pair of jean trousers and a shirt. He then accoed thice bo Kwto Kwikila Police Station.

At thet the Police Station, the Arresting Officefficer Detective Constable John Kuno showe some of the clothings in the green bag which was taken from the Enageta river. He idHe identif brown Coat Coat as belonging to the accused Mido Maiga. Detectonstable John Kuno guno gave sworn evidence. During cross-examin his stis statement wndered into evidence and marked Exhibit "N". His swor sworn testimony. O 14th of December, 1995 h995 he reported on duty at thile Police Station. He was attached to thminalminal Inal Investigations Division. He received a phone caom trom the Kwikilice on reporting an i an incidencident of robbery and wilful murder along the Magi Highway. After submitting me Reporteport he proceededhe location.

At Kwikila Police Station he was given iven a green bag by Senior Constable Joe Mamana. Gure Ragai from Gerillago also spoke to him. Gure Ragaitified the pthe pthe properties and indicated a brown jacket belonging to the accused Mido . At p.m. the Accused Mido Mido Maiga was apprehended. He revealed ames ofes of o of other suspects including the second accusaruka Mari. The Accused Mido Maiga tnfn informed the witness that he had hidden a homa home-made gun in the bushes at Geresi.&#Police went to the village lage and were led by the accused Maiga on foot and recovered the home-made gun. When the accused Maiga wak picked up at his village, the Arresting Officer said he gave a Caution under s 42 of the Constitution. That the accused old tasoneasons why he was being taken to the Kwikila Police Station.

At the Kwikilaikila Police Station the accused was quest. He was shown some properties including clothings. That the ad Maiga iden iden identified a brown jacket as belonging to him. The accused also revealed the names of others who were involved. The witness then placed the accused in the cells aoceeded to locate the otherothers in the village. He located the second ad Ksed Karuka Mari and another. Three suspects were aended that day. That the accused admittednplanning anng and committing the robbery with others.

The Record of Interview the ad Mido Maiga was was conducted on the 31st day of December, 1995. D the Interviterview the Athe Accused exercised his rights to remain silent. The following Exhibere proe produced and shown to the accused:

Exhibits Nos:

18, 19/95

2 Knives.

20/95

One (1) old Shotgun.

21/95

One (1) home-made gun.

&#16iv>

24/95

K2.00 Cash.

26/95

Green Bag.& Car Key - Pylon Trading Company.

/div>

28/95

brown jacket.

34/95

One (1) factory made shotgun.

The Arrestinicer's evidence in relation to the second accused - Karuka ruka Mari. On apprehension the accusdd made admissions regarding his involvement with the Accused Maiga and others. That he was at cene of thef the robbery armed with a bushknife.

A R of Interview was also conducted with the accused Karuka Maka Mari on the 31st of December, 1995. Aghis accused exercised iged ights to remain silent.

The following Police witnesses were involved in the search for possible suspects - Constable Ierea and Robert Volo. In their stats tendered byed by coby consent (Exhibits "F & H") they corroborated the verbal admissions by both accused. That the accusmitted the athe alleged Offence and concealing the home-made gun used during the robbery. Both ed were escorted to w to where the gun was hidden. The gun was ed (Police Exhe Exhibit 21/95).

DEFENCE

THE ISSUES

At the outset I makI make the following findings on the evide/p>

(b) during the robbery, the deceased who was the driver, was stabbed, sustained injuries and died instantly. The cause of deat “s220;shock due to pierced inferior Vena Cava”.

Thet isswill onsider is the alhe allegedleged oral oral admissions by both accused. Informareceived by the Arre Arresting Officer led to the apprehension of the accused Mido Maiga. A greg was also recovered ered from a nearby river. It contained proes includicluding an ad brown coat belonging to t to the accused. At the Kwikila Police Station the Arresting Officer, John Kuno produced the contents of reen bag. And that the accused identified the brown cown coat. Thatlso revealed the namesnames of the others who were inv. The accKaruka ruka Mari wari was apprehended. Both accused made oral aioissions. That both accused le PolicPolice witn and ered a particularcular home-made gun used in the robbery (Police Exhibit 21/95).

Thep>The Arresting Officer's evidence is that he aended the accusedcused Maiga at Geresi village he cautionedioned him under s 42 of the Constitution. That he explained to him why the accused was being taken to the Kwikila Police Station. Ttal of the oral admissionssions alleged is that the accusedtted their involvement in the planning and the commission of the robbery with others. #160; During thmal Records ords of Intervime two weeks later (31st ofst of December 1995) both exercised their rights to remain silent.

Defence Counsel suggested that nh admissions were ever made. If admissions were were mare made then the arresting officer was under a duty to have the admissions recorded. I understand couns217;s su;s submission as calling on the Court to dis-believe the evidence.

Both Counsel did not appear to have any dispute over the question of voluntariness of the alleged oral admissions. I think the question of voluntariness should have been decided then. But perhaps in the cstancetances conducting a voir dire would not have been theer course to take. In the evidof e e Arrestinesting Officer he said he gave thee the accused Maiga a Caution under s 42 o Constitution. And thnd that he explained why the accused was being taken to the Kwikila Police Station.

There is no evidence that the two accused and a third suspect were cautioned before being invited to accompany the Police to where the home-made gun was hidden. Nor where they Cautioneoreefore or after arriving at the particular spot.

The following statements are relevant:

Despite the occurrence of improprieties or illegalities, and despite the lack of a caution, confessional evidence maybe admitted if it is established to have been given voluntarily. (v Ginitu Ileandi & Orp; Ors [1967-68] PNGLR 496 and REG v John Loe [1969-70] PNGLR 12). Thirt must be satisfied fied firstly, that an actual confession was made. And secondly, the confeswaon was made vole voluntarily.

In the case of Regina v Suk Ula and Ors [1995] PNGLR 123, four persons were charged with l murder. Evidence was given ofedureedures of interrogation and charging of the accusaccused lasting as late as possibly as 3.00 a.m. on a Sunday morning. At 8.00 a.m. that same mome morning the accused were assembled and told "we are going out to the scene of the accident to find the Timber and the Knife". It appethat the accused weed were not asked whether they were willing to undertake such a trip and to make a demonstration, nor were they cautioned before or after arriving at the scene. On objn to dmissibility ofty of e of evidence of what happened at the scene, His Honour Prentice SPJ (as he then was) held:

“toceedings of the morning (including a breach of the Judge's Rules) Offended any sense of faof fairness to such a marked degree that any evidence of admissions allegedly made or demonstrations given by the accused ought to be rejected in the exercise of the judicial discretion.”

His Honour then made the following observations (at p.126) which I consider appropriate in this case. With respect I adopt statestatement in relation to the investigations in the present case:

“I consider this to be a case where having regard to both the interests of the public in seeing that crime is fully investigated, and those of the accused that it be investigated with fairness to them, as well as to the social policies involved, I should flag the police the necessity that they proceed with greater attention to the rights of the individual.”

A serious criminal charge was committed which led to a loss of life. Investigating Authes bear bear a heavy responsibility to fully investigate the crime. And at the same time to pay attention to the rights of the accused as garanted to them by the Constitution (s 37 Prote of the Law, s 42 (2) LiberLiberty of the person). I wish to emphasie need toed to carry out investigations with all fairness to the individual and to be thorough. There is evidence of oral admissions made by the two accused. the evidence of tresting Oing Officer was tested sted by cross-examination. In my view, the accce of t of the evidence that there were oral admissione wouill be subject toct to the question of weight to be given.&ven. Anotonsideration in this chis case is the absence of the physicesence of the Police Exhibixhibits in Court. I consider that all rel Exnt Exhibits necessary to prove the charge should be pres to Court. Once againagain this is atgreat responsibility place upon the Investigating Authorities.

I am mindful of the ice of some accused, now coow common, to make a voluntary confession but subsequently has a second thought and make denials either during a Record of Interview or at the trial. This aspect calls fligencegence in all areas of investigations. On the whole this is left left with a cloud of evidence which has not settled as to the guilt or innocence of the two accused before the Coup>

In conclusion, on the evidence before the Court I am not satisfieisfied that there was an oral confession given voluntarily by each accused. Accordingly, I reject thid evidence in the exercise of judicial discretion. The whole o evidence as toas to liability now creates great doubts in my mind as to the guilt or innocence of the two accused. Ieforee the benefienefit ofit of that doubt and acquit each accused.

VERDICT

Mido Maiga: Not Guilty.

Karuki: Not Guilty.

ORDER

Both Accused are now discharged.

Lawyer foer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor

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National Court of Papua New Guinea

State v Mari and Maiga [1997] PGNC 97; N1609 (13 August 1997)