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State v Idon [2003] PGNC 24; N2474 (26 February 2003)

N2474

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 3 OF 2000
THE STATE

-V-

ENANA IDON

KOKOPO: Lenalia, J.
2003: 10 – 14, 26 February

CRIMINAL LAW – Armed robbery – Plea of not guilty – Trial – Criminal Code s. 386 – (Ch. No. 262).

CRIMINAL LAW – Practice and procedure – Voir dire – confessional statement – Record of interview – Admissibility of – Allegations of involuntariness – Confessional statement and record of interview sought to be tendered – Relevance of voir dire – Confessional statement and record of interview objected to.

CASES CITED:

The State –v- Kusap Kei Kuya [1983] PNGLR 99
The State -v- Allan Woila [1978] PNGLR 99
R –v- Amo and Amuna [1963] PNGLR 22

OVERSEAS CASES CITED:

Ibraham -v- R [1914] AC 599
DPP -v- Ping Lin [1976] AC 574
Wan –v- United States (1924) 22 US 14.

Counsel:
L. Rangan, for the State
W. Donald, for the Accused

JUDGMENT

February, 21

LENALIA, J. The accused is charge with one count of armed robbery where the State alleges that on 29th of September 1999 at Warangoi, the accused in company of others stole from Stanley Tigilai a quantity of cigarettes and a cash sum to the value of K980.00 the property of Advance Distributors Company in Rabaul. The State say at the time the offence was committed, the accused and those others used two homemade guns and three bush knives being offensive weapons. Actual violence was used to execute this crime. The offence is against s. 386 2 (a)(b)(c) of the Criminal Code Act.

Evidence by the State is that upon receipt of the complaint, a police raiding party organized by the Rural Patrol Unit based at Tomaringa Police Barracks attended to the complaint on which the accused was reported to be involved in an armed robbery. Inspector Baffi Peni led a five member men from the Unit to be joined by four or so policemen from Warongoi Police detachment.

On arrival at Warangoi Police Station, Inspector Peni’s men joined with the regular members from Warangoi were briefed then early in the morning about 2 am, the squad set off to conduct mini raids at and around Kadaulung and Sunam blocks in the Warangoi area. The accused was a suspect and the raiding party proceeded straight to either the accused own house or that of his parents and conducted the raid.

Evidence by Constables Philip Iringa and Sakius Kilala and that of Inspector Peni show that at the house which the State say belong to the accused they found a black mask and they proceeded to another house where they found an occupant Waninara Junior, was sleeping, the squad found a packet of Winfield smoke and another spear packet. Only the mask was tendered in evidence and accepted not as to prove that it was the mask used in the armed robbery but that it was found in the accused house. Both the packets of spear and Winfield cigarettes were not tendered, with the excuse that due to the course of movements from office to office or with the change of incoming new officers, those alleged exhibits might have been misplaced.

The State evidence is the accused was not located at Sunam blocks and when inquired, the raiding party were informed that the accused was not there but was in Takubar village. A person by the name of Peter Birora was also a suspect and the raiding party also went to his premises where they could not locate him.

The raiding party led by Inspector Peni and Senior Sergeant Albert Wartovo left Warangoi and proceeded to Takubar in search of the accused.

On arrival at Takubar village, the accused uncle’s house was shown to Police by the person named as Philip. The policemen knocked on the door and the aunty of the accused woke up to answer.

When the auntie of the accused was questioned by police as to where the accused was, she was unsure of the whereabouts of the accused and said, he was not in the house. The State’s evidence shows that, another person spoke out and said the accused was in the house. Later the defence case will show that the accused’s aunty had gone to bed earlier not knowing that the accused had later during the night entered the house where he slept that night.

Having been assured of the accused’s presence, about three to four policemen entered the house and woke the accused and he was led away outside. Both the State and defence evidence show that when the accused was awoken that morning he was shivering because he was struck with malaria. There was no medical evidence though to show if the accused was sick.

The defence served on the State a notice of voir dire questioning the tendering and admissibility of a confessional statement or record of interview. The law on admissibility of either a confessional statement or a record of interview is clear. A confessional statement made by an accused adverse relevant to the issue of guilt in a criminal trial is very crucial to the State’s case.

The defence called two witnesses on the voir dire. The accused gave evidence that when he was arrested at his uncle’s house at Takubar, he was assaulted between the house and the police vehicle. He claimed that when he was being led from the house, he was pushed and squeezed. He named Constable Levi Kambange as the one who assaulted him some few metres away from his uncle’s house.

The accused claims that, as he was being driven from Takubar to the Kokopo Police Station, he was being assaulted until they arrived at the Station. He was seated on a chair, and thereafter, he was being further assaulted. In the cause of these assaults the policeman started to question him about another suspect by the name of Peter Birora.

The accused further claimed that, while he was being questioned about Peter Birora to the effect that if it was true Peter Birora was one of the gang members who was together with the accused who conducted the armed robbery at the Marlin Trading Store at Warangoi during which the items mentioned on the indictment were robbed and stolen.

He named all those policemen from Warangoi Police Station who were responsible for assaulting him. They include Albert Wartovo, Sakius Kilala, Levi Kambange and Kolis. According to his evidence the accused said that while the policemen were doing this, Levi Kambange pointed a gun at the accused’s left foot and was told to admit to him having accompanied Peter Birora. After he had been assaulted and threatened with the gun, he was released to the cells.

That afternoon, that is the afternoon of the same date upon which he was arrested, the accused said, he was taken out from the cells by Detective Sergeant Poren Yagiri to the CID office where he was seated and Sergeant Yagiri started questioning him about the offence. The accused further claimed that while he was being interrogated, by Sergeant Yagiri he answered the questions being put to him, as he did not know about the trouble. The Sergeant hit the accused twice and later was told that if the accused could admit, he would be released. There and then when the accused heard this, the accused admitted to having involved in the armed robbery charged on the indictment.

The accused evidence also reveals that when he was being questioned by the same policemen who arrested him, he was subjected to various forms of torture such as assaults, being burnt with smoke and being hit with objects. Apart from the accused evidence his auntie Gawehia Enana gave evidence that, when the policemen woke them up at their house at Takubar, the police came into the house and woke the accused up. After the accused had been led up a few metres from the house he was assaulted so much so that, the accused had to fall down to the ground.

Mrs. Enana’s evidence further show that, when she saw what the policemen were doing to the accused she had to speak up and told the policemen to be easy or gentle with the accused because, he was sick.

The issues before the court to determine is whether or not the Court can accept the confessional statement and the record of interview which the defence has objected to due to reasons of being unfairly obtained through assaults and intimidation.

In this jurisdiction, a practice has developed that in a voir dire trial, the State has the onus of proving their case beyond reasonable doubt. That is the criminal standard of proof and the State must prove that a confessional statement and or the record of interview for that matter was obtained voluntarily and the State is charge with the onus of negativing the allegations of threats, promise, intimidations or assaults: The State -v- Allan Woila [1978] PNGLR 99. The State must prove that the statement was voluntarily obtained: R –v- Amo and Amuna [1963] PNGLR 22.

On the other had the accused has the burden of establishing involuntariness and he is required to prove that on the balance of probabilities. The State -v- Allan Woila [1978] PNGLR 99. see The State -v- John Michael Awa and 6 Ors. of 15 May 2000 at 18.

One of the classical statements of the common-law rule as to the admissibility of a confessional statement can be found in the case of Ibrahim -v- R [1914] A.C. 599 and at 609 Lord Justice Sumner said:

"It has long been established ... that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice and hope of advantage exercised or held out by a person in authority".

see also D.P.P. –v- Ping Lin [1976] AC. 574.

In another case, that of R -v- Isequilla [1975] 1 WLR 716, the English Court of Appeal said at 721 – 722 that the exclusion of a confessional statement as a matter of law because it is not voluntarily obtained relates to some conduct on the part of authority, which is improper or unjustified in law.

The United States Supreme Court said in Wan -v- United States (1924) 266 U.S. at 14 in [1924] USSC 158; 69 Law Ed. 131 at 148:

"The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise".

I take the terms "improper" or "unjustified" to mean that when an accused is arrested, he must be afforded the full protection of the law as required by s. 37 of the Constitution. A person arrested by due process of the law is entitled to the protection of law enshrined in the Constitution. This is more so with those persons arrested and are kept in custody and who are about to or have been charged with criminal offences.

One of the essential elements of the protection of law being enshrined in our Constitution is to ensure that any investigation conducted particularly by the police personnel in relation to criminal cases ought to carry out such investigations fairly, without fear of prejudice and hope of any advantages. Such investigations must be free from intimidations and acts of torture. If it is proven on the balance of probabilities that such behaviour preceded a statement of confession or a record of interview then, the court has a discretion to refuse to accept such documents.

On the voir dire trial, the accused has given evidence that he was threatened to be shot on his left leg if he did not admit to the fact that Peter Birora was an accomplice to the offence committed on 29th September 1999 at Warongoi. The evidence of Constable Philip Iringa and Sakius Kilala show that Peter Birora was also a suspect and the raiding party conducted a raid in Peter Birora’s place in the hope to arrest him.

How else would the accused have learnt of the name Peter Birora had that name not been mentioned to him during the process of the preliminary questioning when the accused was first brought to the police station the morning on the date of his arrest.

I am therefore satisfied from the defence evidence on the balance of probabilities that the confessional statement and the record of interview were preceded by actual assaults and threats of violence to the effect that the accused would be shot if he did not admit to Peter Birora being an accomplice.

I am also satisfied that, when the interviewing officer obtained that confessional statement, there was hope of an advantage being offered to the effect that if he (the accused) answered in the positive, he was to be released. On the record of interview, I am satisfied that admissions made in the record of interview were preceded by acts of assaults and or hope for advantage.

At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, fear or promise, is not voluntary. It is not voluntary if such statement or record of interview is given in consequence of a threat made, or a promise of advantage given in relation to a charge or charges being laid by a police officer: R -v- Fennel [1881] UKLawRpKQB 90; (1881) 7 Q.B.D. 147 or 150 to 151.

Having said this, and in conformity with s. 28 of the Evidence Act Ch. No. 48, I am unable to accept the confessional statement and the record of interview as I find such were obtained by compulsion and both must be excluded from the State’s evidence.

Orders accordingly.
_____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : NAMALIU Lawyers