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. They both pleaded not guilty to the charge.

PASSINGAN 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. They both pleaded not guilty to the charge.

It is the State case that on the 14th day of December, 1995 about 6.30 a.m. the deceased (the driver) and others left Kwikila Station for Port Moresby. Between the 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. One of the robbers then fired a gun at the windscreen of the vehicle injuring two passengers. The men demanded for the motor vehicle Keys. It is alleged they took the Keys, K4,000.00 in cash and other properties, including a particular pair of spectacles belonging to one of the passengers. In the course of the robbery one of the robbers stabbed the deceased driver. He died instantly. It is the State case that the Two accused were parties to the common unlawful purpose of committing a robbery. And that they are liable for the death of the deceased by virtue of s. 8 of the Criminal Code.

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

I will now summarise the contents of the Statements. Exhibits A, B, C, D and O are statements of the passengers in the motor vehicle. The evidence is mainly as to the robbery. There has not been any identification of any of the robbers. Exhibits E, F, G, Q & R are the statements of the Police witnesses who attended the scene and carried out a search for possible suspects. Following the footprints from the scene of the robbery they reached Geresi village about 10.30 a.m.. At a river near the village the Police witnesses located a green bag containing the vehicle ignition Key, 3 cartridges, a passenger's reading glasses, two masks, a woollen cap, a baby shirt, 2 cool weather jackets and some wet clothes. A loaded firearm was found next to a house in the village. They brought the items back to Kwikila Police Station. The shotgun was identified by witness Gure Ragai (Exhibit "P") as a gun he had borrowed that morning from one Weki. The gun had mud on it.

Police later returned to the village. Witness Gure Ragai and Weki were picked up for questioning. The Police then returned to the village and apprehended the accused Mido Maiga and another. The accused Karuka Mari was apprehended the next morning and a fourth suspect was apprehended in the afternoon.

I will return to the Police witnesses later but at this point I wish to consider the statement of Gure Ragai (Exhibit "P"). On the 14th day of December, 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 and his wife then kept a watch. Then he saw the accused Mido Maiga coming out of the bushes wearing a pair of jean trousers and a shirt. He then accompanied the Police back to Kwikila Police Station.

At the Police Station, the Arresting Officer Detective Constable John Kuno showed him some of the clothings in the green bag which was taken from the Enageta river. He identified a brown Coat as belonging to the accused Mido Maiga. Detective Constable John Kuno gave sworn evidence. During cross-examination his statement was tendered into evidence and marked Exhibit "N". His sworn testimony. On the 14th of December, 1995 he reported on duty at the 6 Mile Police Station. He was attached to the Criminal Investigations Division. He received a phone call from the Kwikila Police Station reporting an incident of robbery and wilful murder along the Magi Highway. After submitting a Crime Report he proceeded to the location.

At Kwikila Police Station he was given a green bag by Senior Constable Joe Mamana. Gure Ragai from Geresi village also spoke to him. Gure Ragai identified the properties and indicated a brown jacket belonging to the accused Mido Maiga. At 4.00 p.m. the Accused Mido Maiga was apprehended. He revealed the names of other suspects including the second accused, Karuka Mari. The Accused Mido Maiga then informed the witness that he had hidden a home-made gun in the bushes at Geresi. Police went to the village and were led by the accused Maiga on foot and recovered the home-made gun. When the accused Maiga was picked up at his village, the Arresting Officer said he gave a Caution under s 42 of the Constitution. That the accused was told the reasons why he was being taken to the Kwikila Police Station.

At the Kwikila Police Station the accused was questioned. He was shown some properties including clothings. That the accused Maiga 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 and proceeded to locate the others in the village. He located the second accused Karuka Mari and another. Three suspects were apprehended that day. That the accused admitted planning and committing the robbery with others.

The Record of Interview with the accused Mido Maiga was conducted on the 31st day of December, 1995. During the Interview the Accused exercised his rights to remain silent. The following Exhibits were 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.
	24/95	K2.00 Cash.
	26/95	Green Bag.& Car Key - Pylon Trading Company.
	28/95	brown jacket.
	34/95	One (1) factory made shotgun.

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

A Record of Interview was also conducted with the accused Karuka Mari on the 31st of December, 1995. Again this accused exercised his rights to remain silent.

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

Both accused gave unsworn statements in their defence. They each denied involvement in the crime and alleged alibis. They each knew nothing about the crime as they were in the village with their mothers. Those mothers did not give evidence. No other witnesses were called in their defence.

(a) that a robbery was committed on the 14th day of December, 1995 at 6.30 a.m. between Kwikila Station and the old Kwikila Station; and

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

The first issue I will now consider is the alleged oral admissions by both accused. Information received by the Arresting Officer led to the apprehension of the accused Mido Maiga. A green bag was also recovered from a nearby river. It contained properties including an alleged brown coat belonging to the accused. At the Kwikila Police Station the Arresting Officer, John Kuno produced the contents of the green bag. And that the accused identified the brown coat. That he also revealed the names of the others who were involved. The accused Karuka Mari was apprehended. Both accused made oral admissions. That both accused led the Police witnesses and recovered a particular home-made gun used in the robbery (Police Exhibit 21/95).

The Arresting Officer's evidence is that when he apprehended the accused Maiga at Geresi village he cautioned him under s 42 of the Constitution. That he explained to him why the accused was being taken to the Kwikila Police Station. The total of the oral admissions alleged is that the accused admitted their involvement in the planning and the commission of the robbery with others. During the formal Records of Interview some two weeks later (31st of December 1995) both exercised their rights to remain silent.

Defence Counsel suggested that no such admissions were ever made. If such admissions were made then the arresting officer was under a duty to have the admissions recorded. I understand counsel’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 circumstances conducting a voir dire would not have been the proper course to take. In the evidence of the Arresting Officer he said he gave the accused Maiga a Caution under s 42 of the Constitution. And 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 Cautioned before or after arriving at the particular spot.

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. (REG. v Ginitu Ileandi & Ors [1967-68] PNGLR 496 and REG v John Loe [1969-70] PNGLR 12). This Court must be satisfied firstly, that an actual confession was made. And secondly, that the confession was made voluntarily.

In the case of Regina v Suk Ula and Ors [1995] PNGLR 123, four persons were charged with wilful murder. Evidence was given of procedures of interrogation and charging of the accused lasting as late as possibly as 3.00 a.m. on a Sunday morning. At about 8.00 a.m. that same 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 appeared that the accused 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 objection to the admissibility of evidence of what happened at the scene, His Honour Prentice SPJ (as he then was) held:

“the proceedings of the morning (including a breach of the Judge's Rules) Offended any sense of 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 that statement 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 Authorities 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 Protection of the Law, s 42 (2) Liberty of the person). I wish to emphasise the need 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. Only the evidence of the Arresting Officer was tested by cross-examination. In my view, the acceptance of the evidence that there were oral admissions made would still be subject to the question of weight to be given. Another consideration in this case is the absence of the physical presence of the Police Exhibits in Court. I consider that all relevant Exhibits necessary to prove the charge should be presented to Court. Once again this is a great responsibility place upon the Investigating Authorities.

I am mindful of the practice of some accused, now 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 for diligence in all areas of investigations. On the whole this Court is left with a cloud of evidence which has not settled as to the guilt or innocence of the two accused before the Court.

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

National Court of Papua New Guinea

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