Unreported National Court Decisions
N1872
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 804 OF 1998
STATE -V- SIMON TANUMA
Lae 
Injia J
7 May 1999
10-11 May 1999
17-18 May 1999
4 June 1999
CRIMINAL LAW - Confessions - Record of Interview - Voir dire - Record of interview preceded by confessional statement - Confessional statement not sought to be tendered in Court by the State - Record of interview conducted in unfair circumstances - Ground for exercise of discretion - Record of Interview rejected.
Cases Cited
The State -v- Anton Turik [1986] PNGLR 138.
The State -v- Mana Turi [1986] PNGLR 221.
R -v- Lee [1950] 82 CLR 133
Counsel
R. Popeu for State
A. Raymond for the accused
4 June 1999
INJIA J: The accused pleaded not guilty to one count of armed robbery laid under S.386 of the Criminal Code. He denied State allegations that on 6/2/98 at about 7.30p.m. at Salamanda Street, Lae he together with 4 others armed with 2 home-made guns, a home-made pistol and a bushknife held up one Zerry Nanong as he was driving into his house with his family, threatened him and got hold of his Toyota Hilux, Reg. No. LAE455 and drove it away. In the course of decamping from the area, they shot Zerry on his right leg and caused serious injuries. 
The evidence for the State admitted at the trial is both documentary and oral. The documentary evidence admitted by consent are as follows:
1.       Certified statement of Zerry Nanong - Exhibit “A” (St).
2.       Certified statement of Irene Masue - Exhibit “B” (St).
3.       Certified statement of Helen Alaung - Exhibit “C” (St).
4.       Certified statement of Frida Ruben - Exhibit “D” (St).
5.       Certified statement of Rebecca Nanong - Exhibit “E” (St).
6.       Certified statement of John Akoko - Exhibit “F” (St).
7.       Certified statement of Silas Taliva - Exhibit “G” (St).
8.       Certified statement of Basawe Anzu - Exhibit “H” (St).
9.       Certified statement of Dr. W. Kurapa - Exhibit “I” (St).
Oral evidence was given by Det. Const. Kelly Kaisa in relation to the record of interview (ROI) containing admissions which was conducted between himself and the accused. The State sought to tender it through Const. Kaisa. The defence counsel objected to its tender on the following grounds:-
“1.      ASSAULTS
The accused was badly bashed up by Task Force and Dog Unit members on 6th February when he was picked up. Then locked in the cells.
He was further assaulted on the 7th February and 8th February.
“2.      THREATS OF FURTHER ASSAULTS
On 7th Feb. there were many CID personnel in the Office when he was asked to tell his story. They said “paitim em, paitim em”. Then on 8th Feb. taken out against and interrogated when Max Makeso said “The victim saw you so don’t try to deny” or words to that effect. Also present were Kelly, Paliau and others.
During the Record of Interview conducted on 5 March 1998, Detective Kaisa had an iron rod and the piece of rubber hose on the table which made the accused apprehensive.
These acts by the CID amounted to involuntariness, thus contravened section 28 of the Evidence Act and violated section 42(2) of the Constitution.”
As a result, a voir dire was conducted in which constable Kaisa, Const. Fred Rimbao and Const. Max Makeso gave evidence for the State. The accused gave sworn evidence. After hearing submissions on the vior dire, I reserved my ruling, which I now hand down.
As the offence was committed at night and in terrifying circumstances, most of the eye witnesses including the victim Zerry were unable to identify the suspects. Therefore, the accused’s admissions, if any, are critical in this trial. It is not disputed that police recovered the victim’s vehicle the same night and apprehended the accused from inside the vehicle with the other suspects on 6/2/98. The accused’s story now is that he was drunk and asked by the other suspects to accompany him for a ride in the vehicle. Not knowing it was stolen, he joined them, only to be apprehended by police the same night.
The accused claims he was beaten up badly by the task force police when he was apprehended. There is no evidence from the task force policemen who apprehended him, to counter his evidence. The question is whether the accused was assaulted on 6/2/98 for the purpose of extorting a confession from the accused at the scene of his apprehension. There is no clear evidence from the accused on this aspect. It is also not clear from the accused’s evidence whether or not the force used against him was reasonable force necessary to execute arrest and prevent escape, as so authorised of police by law. Mr Popeiu for the State submits that force may have been used, and if it was, then it would have been lawful.
The accused’s allegations essentially relate to what happened; (1) at the Lae Police Station the next day after he spent the night in the police cells, that is on 7/2/98; (2) what happened on 8/2/98 at the police station and (3) what happened on 5/3/98 at the same police station when the interview was conducted.
There is no dispute that on 7/2/98, the accused was taken out from the cell by Const. Kaisa and a confessional statement was taken. The accused says Max Makeso and other policeman, “Kelly, Paliau and others” were also present at the CID office and they threatened to hit him if he denied because the victim saw him. He says they actually assaulted him with a piece of iron, rubber hose, etc. So he admitted everything. Upon my own questioning, Const. Kaisa said the confessional statement was made to him voluntarily after he was given his Constitutional rights. However, the State did not seek to tender this confessional statement.
As to what happened on 8/2/98 there appears to be a mistake on the part of the accused’s lawyer in putting this date down on the “Notice of Voir Dire” because the accused was not taken out of the police cell again on 8/2/98 and interrogated.
As to what happened on 5/3/98, the accused says he was interviewed at the CID office by Const. Kaisa. Const. Kaisa had before him placed under the table the same piece of iron and rubber hose used on 7/2/98. Const. Rimbao did not sit on the same table to corroborate the interview as Const. Rimbao said in Court. There were also other CID policemen hanging around in the office when the interview was conduced. He said although no actual threat or force was used, in fear of the possibility of what happened on 7/2/98 being repeated, he simply submitted himself to Const. Kaisa. But he did not make any admissions then. Const. Kaisa simply re-wrote the confessional statement he made to him on 7/2/98 and asked him to sign it and he obliged after it was read back to him.
Const. Kaisa and Const. Rimbao both said the accused was given his constitutional rights and questions were answered freely by the accused. They denied they had the piece of iron and rubber hose with them. They did say there were other CID policemen including Const. Makeso going about doing their own business when the accused was interviewed.
The issue is whether or not the interview containing admissions obtained some days after a confessional statement was obtained may be admitted into evidence. In a situation where persons in position of authority such as policemen obtaining confessions or admissions use unfair or improper tactics to obtain it, such admissions or confessions may be excluded by the Court in the exercise of its discretion. The tests is one of whether or not, in all the given circumstances, the accused’s mind was “overborne at the time he made his confession (or admission) by what occurred earlier” See State -v- Anton Turik [1986] PNGLR 138 at 140 .
In the State -v- Anton Turik the accused was questioned at length and a ROI made some 18 hours after he made a full confessional statement. Whilst admitting the confessional statement into evidence, Pratt J rejected the ROI. The basis for reaching this decision is set out at page 141-145.
“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 barest admission if they wish to pursue the matter by way of record of interview. Certainly they will be in great danger of having the record of interview struck down if it takes place on the day following the taking of a details confessional statement. Indeed I think there could be very strong arguments for saying that a record of interview would be struck down even if it took place immediately after such a long voluntary confessional statement as exhibited before me in this particular matter.”
In The State -v- Mana Turi, [1986] PNGLR 221, McDermott J. was concerned with an accused person who was detained for murder. He was detained for six days without being charged. He was taken into custody following confessional statements he made to police in the police cells. McDermott J. considered the “five days detention, the giving of two full confessional statements by the accused, his continued detention without charge or judicial remand and then subjecting him to a full question and answer Record of Interview amounts to impropriety.” At page 225-226, His Honour described the basis for his decision as follows:
“It is indeed, we think, a mistake to approach the mater by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused’s statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment Street J (as he then was) in R -v- Jefferies [1946] 47 SR (NSW) 284 which are quoted by O’Bryan J in the present case. His Honour said, at 312: “It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.”
In R.-v- Lee [1950] 82 CLR 133 at 134, the High Court of Australia said:
“The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interest of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.”
I would adopt these views as my own and apply them to the present case.
The issue is whether the confessions which the State says are contained in the ROI were obtained in circumstances unfair to the accused, such that this Court should exercise its discretion to reject it. This is where the entire events in relation to the apprehension and interrogation of the accused should be scrutinised.
On the evidence I am satisfied that the admissions obtained during the interview on 5/3/98 were obtained in circumstances unfair to the accused. To begin with, the confessional statement obtained by Const. Kaisa on 7/2/98 was not sought to be tendered by the State and it is not in evidence. The circumstances in which that confessional statement was obtained are not clear to this Court because the State witnesses appear to be reluctant to disclose those circumstances. I have some doubt as to whether those admissions were properly obtained. Having obtained that confessional statement, even if it was properly obtained, it was not necessary for Const. Kaisa to subject the accused to another more vigorous interrogation to obtain more confessions. The presence of Const. Makeso and other CID personnel in the same CID office when the accused was interrogated also had an over-bearing effect on the accused, Const. Makeso alleged to having been involved when the the confessional statement was obtained on 7/2/98. I agree with defence counsel that on 5/3/98, the accused’s will was overborne by the admissions he gave on 7/2/98 under circumstances which are unclear to this Court. The main basis of the challenge to the R.O.I. is the re-writing of the questions and answers given in the Confessional Statement. When that very Confessional Statement and the total circumstances in which they were obtained are not forthcoming from the State witnesses, I have a reasonable doubt as to the fairness of the circumstances in which the interview on 5/3/98 was conducted. Therefore I am of the firm view that it is unsafe and unfair to admit the record of interview into evidence and I so rule.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor