N2915

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1278 OF 2004

THE STATE

-V-

TOWES MINMIN

KOKOPO: LENALIA, J.
2005: 26th August & 6th Oct.

Criminal Law – Confessional statement – Record of interview – Admissibility of – Voir dire – Standard of proof – Whether admission made voluntarily – Particulars of assault – Inability of accused to particularize the assault.

Evidence – Record of interview and Admissions – Discretion to exclude – Impropriety of police investigating team – Accused assaulted when first arrested – Record of interview and confession statement obtained three days latter.

Criminal Law – Practice and procedure – Conduct of the record of interview – Caution under s. 42 (2) of the Constitution administered to accused – Failure to afford facilities to enable accused to see a lawyer or member of his family of his choice – Record of interview – Contrary procedures – Record of interview unfairly obtained amounting to unfairness or impropriety.

Criminal Law – Practice and Procedure – Constitutional rights – Right to full protection of the law – Right to communicate with a lawyer of his choice – Right to consult family member in absence of lawyer.

Practice and procedure – Admissibility – Discretion – Record of interview – Admissibility of – Discretionary powers – Record of interview rejected. Alleged assault by arresting officers on accused – Assault three days before confessional statement obtained – Whether accused can raise impropriety in fear that if he does not answer questions put to him leading to the confessional statement being obtained – Confessional statement inappropriately and unfairly obtained.

Held: (1) 	Where the accused was assaulted a few days before the 
confessional statement was taken and where it is established that, the accused was in fact assaulted at the time of arrest, the confessional statement could not be accepted as the accused believed that if he could not confessed to the interviewing office would result in him being assaulted was overborne and must be take as undue insistence and pressure and therefore the confessional statement must be rejected.

(2) 	Evidence of compliance with s. 42 (2) of the Constitution being afforded to the accused, however the record of interview was not suspended in order to enable the accused to see a lawyer, friend or member of his family was improper and contrary to the Constitutional Rights envisaged in s.42 (2) of the Constitution and thus it is unconstitutional. Record of interview must be rejected.

Cases Cited:
The State v Allan Woila [1978] PNGLR 99.
Supreme Court Reference No. 1 of 1977 [1977] PNGLR 362.
The State v Kusop Kei Kuya [1983] PNGLR 263.
McDermott v The King [1948] 76 CLR 501.
The State v Joanes Mesak (2005) CR. No. 1563 of 1995.
The State v Towo Willy & 6 Others (2004) CR. 342 – 351 of 2003.
R v Wendo [1963] PNGLR 271
Maxwell Arthur Schiebs v H Singh [1981] PNGLR 364
The State v Paul Brian Steven (2004) CR. 342-351 of 2003

Counsel:
L. Rangan, for the State
T. Potoura, for the Accused

6th October 2005.

LENALIA, J: The accused Towes Minmin of Taui No. 1 village, Bitapaka Local Level Government, East New Britain Province is charged with one count of armed robbery an offence contrary to s. 386 (1) (a) (b) and (c) of the Criminal Code. When he was arraigned, he entered a not guilty plea. 

On instructions to his lawyer, the accused alleged two constitutional flaws occurred to him before and during the record of interview were caused to him by first; the arresting officers on the scene bitterly assaulted him. Then when he was being transported from the place where he was arrested, between the place of arrest and the Kokopo Police Station, he was further assaulted by the investigating team.

The second assault is supposed to have occurred at Takubar near Papindo Trading Supermarket. The second allegation put up by the accused during the voir dire trial was and is that, after he was given his s.42 (2) (a) (b) and (c) Constitutional rights to consult and communicate without delay in private with either a member of his family, a personal friend a lawyer of his choice or the Public Solicitor, he was not given the benefit of seeing anyone of the above named persons.

The following is my ruling on the voir dire trial conducted on the 20th 23rd and the 24th of August 2005.

After the accused was arraigned, he pleaded not guilty and the Court enquired with both counsels if there were any documents intended to be tendered by consent. The State Prosecutor sought to tender the record of interview conducted between the accused and the interviewing officer and the two corroborators. Mr. Potoura of counsel for the accused also indicated that, they would also object to the tender of an undated confessional statement obtained from the accused at the Kokopo Police Station.

There are two reasons raised by the defence against the tender of the record of interview and the confessional statement. First they say that the accused was overborne at the time the confessional statement was obtained and secondly that, the record of interview was obtained contrary to s.42 (2) (b) and (c) of the Constitution.

The State called four witnesses. The first of those witnesses was one Constable Nicholas Taolo.

His evidence is that, on the 10th of April, he was amongst a group of three policemen which attended to the complaint being laid at the Kokopo Police Station about an armed robbery which occurred at Ramale village near Balada. The policemen went there to conduct a search in relation to an armed robbery which had occurred some few days before the search was conducted.

Upon their arrival at Ramale village, the three policemen produced the Search Warrant taken out by the police pursuant to s.5 of the Search Act (Ch.341). to search the house of Raphael who is married to the accused’ sister. The Search Warrant was produced to Raphael’s wife and according to Nicholas, as soon as Raphael’s wife was shown the search warrant, they started to search the kitchen then the house. 

Nicholas said when he searched the kitchen, he found therein three (3) KG. packets of rice placed or packed into a plastic bag. He said, he was suspicious over the manner in which the plastic was put under the bed on the ground and after he had picked the plastic up, he asked the accused and his sister as to where the rice came from, the accused sister said; she bought them from the store. He further asked them why, the plastic was hidden under the bed instead of putting it where food is usually stored or put somewhere on the table. 

This witness further said, when he asked the accused and his sister, they did not reply as to why the rice was hidden under the bed. When they did not answer, he led them away to the police vehicle.

It is clear from Nicholas’ evidence that he latter walked into the room of the house where the accused was sleeping when he heard them talking with the other two policemen.

After he joined his colleagues, the witness said they searched the room and the house thoroughly and after searching they found some bathing and laundry soap. Together with the quantity of soap, they also found some box of matches and some batteries. They took all these properties to where the police vehicle was parked.

In cross-examination, Constable Taolo was asked, as to where was the accused being questioned after the search was completed in both the kitchen and the house. He replied that, the accused was being questioned after he had been taken outside. He was further asked if he was on the scene physically when the accused was being questioned and in answer said he was there hearing the questioning being put to the accused. 

Nicholas was further asked if it was correct that, when the accused was being asked about where the quantity of goods was taken, it was there and then that, the accused was beaten up very severely. This witness denied allegations by the defence that, the accused was beaten and brutally assaulted outside his sister’s house. 

The next witness called was Constable Bernard Tutmulai. He affirmed what the first witness said and went further to say that, when the accused was being question outside the house, the accused admitted that the properties were being the portion of the goods stolen from the trade store in Ramale village.

This witness denied assaulting the accused in cross-examination. It was put to this witness that, the reason why, the accused admitted to having the said properties in his possession was because, he was first brutally beaten up outside the house where the accused was found then latter at Papindo near Takubar. This witness answered in the negative 

The next witness evidence was rather interesting in the sense that, she was the interviewing officer in this case but her memory faded much in terms of remembering what occurred to the accused during the record of interview. Policewoman Constable Kolish Moab could not recall the date on which, she interviewed the accused. She recalled however that, when the accused was brought in, he was verbally cautioned and a confessional statement was obtained. 

Asked in cross-examination if prior to the accused giving the confessional statement he was assaulted, this witness denied assaulting the accused neither any of those who corroborated her during the record of interview. Mrs. Moab could not recall the date on which she interviewed the accused nor could she remember when was the confessional statement obtained.

Although the interviewing officer said she gave the usual caution to the accused and was given the chance to speak to a lawyer, a member of his family or a personal friend, the record of interview, does not show if the accused was afforded tangible means to achieve the requirement of s.42 (2) of the Constitution. 

The last State witness, Police Constable Hillary Sirinjui admitted in both examination in chief and cross-examination that, though the accused was given the opportunity to see anyone of those persons mentioned in s. 42 (2) of the Constitution, the accused was not afforded the means to speak to his lawyer on the date when the record of interview was conducted but instead, the next day Mr. Kaumi from the Public Solicitor’s Office came to speak to the accused well after the record of interview had been completed. 

Constable Sirinjui’s version is that, after the usual caution had been administered to the accused and despite the fact that, the accused was asked to see a lawyer, the accused is supposed to have said he wanted to see a lawyer, the record of interview was made to without seeing his lawyer first. 

The defence evidence came from the accused alone. Despite grant of an adjournment as requested by the accused’s lawyer, to allow for the calling of other defence witnesses, no other witnesses were called. The accused’s evidence is this. The moment he was woken up from his bed, his eye-lids were opened with a set of pliers. When he woke up, the two policemen started to hit him with a piece of timber. 

From inside the house, the accused said, they led him out to the grass where near some hibiscus flowers where a policeman who the accused named as Toungan further belted him up. Asked in chief if anyone witnessed the beatings, the accused said, his sister and his brother in-law were both there to see what was happening to him.

It was suggested to the accused if the policeman whom he referred to as Toungan was Police Constable Bernard Tutmulai and he said, it was him and that he knows him by that name only. The reason for this is that, the accused and the said constable come from the same area. 

The accused evidence is that after the three policemen had beaten him up at his brother in-law’s place, they took him into the police vehicle to Takubar near Papindo Trading Supermarket and there they severely beat him up. Asked in chief and cross-examination how come he had some goods in his possession. 

The accused replied by saying that, a Sepik boy had given him the stolen goods was the reason why they were put under his bed. In cross-examination, the accused was asked why was it that when the caution was administered to him before the confessional statement was obtained, he made certain admissions. The same question was asked about the status of the record of interview. 

In his answer, the accused said, the reasons for his alleged admissions were that, first, having been assaulted twice before and the fact that prior to obtaining the confessional statement he was also assaulted, he admitted in the record of interview that he was one of those who committed the offence of armed robbery at Ramale village to avoid being beaten. 

The accused further said, he knew well that if he did not falsely admit to the police both during the record of interview and prior to making the confessional statement, he would be beaten for refusing to answer or even if he denied having committed the crime. 

The Law.

To begin with, s.42 (2) of the Constitution does say at what stage of the process of an accused’s arrest should he be given the caution in terms of particularly Subsection (2) (b) and (c). The above section states as follows:

"(2) A person who is arrested or detained-

(a)	shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b)	shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c)	 shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection."

It has been a long standing and honoured practice that, before an accused is being interviewed or questioned for purposes of obtaining statements or where a record of interview is to be conducted, the caution contained in the Judges Rules must be given to an accused and the rights pursuant to s. 42 (2) of the Constitution must be complied with.

The criminal process from arrest to either conviction or acquittal is entrenched both in the Constitution and legislation. Thus under sections 3 and 5 of the Arrest Act (Ch.No.339) a policeman or a member of the public is authorized to arrest a person whom they believe to be about to or has committed an offence. Once a person has been arrested, in the course of the criminal processes, the law safeguards and ensures that an accused’s rights are protected.

In the case before me, there are two pieces of evidence which have been rejected by the defence namely, the confessional statement and the record of interview for reasons that, such evidence were unfairly obtained.

On voluntariness, the law is that if the admissions made by the accused are unfairly obtained they cannot be accepted into evidence for the State and used against an accused in a criminal trial.

If the Court finds that, either the confessional statement or the record of interview were unfairly obtained, should the Court exercise its discretion to either reject or accept the two documents sought to be tendered against the accused.

Before I discuss some case law authorities on the question of voluntariness, s.28 of the Evidence Act (CH. No. 48) states:

"28 Confessions induced by threats.

A confession that is tendered in evidence in any criminal proceedings 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."

The well-known common law case of McDermott v The King (1948) 76 CLR. 501 which case has been quoted in many case in this jurisdiction establishes that a confessional statement can only be admitted into evidence if it is shown to have been voluntarily obtained. The Court in that case said at page 511:

"If the accused speaks because he is overborne his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, sustained or undue insistence or pressure, it cannot be voluntary."

The standard of proof required of the prosecution to prove voluntariness is that of proof ‘beyond reasonable doubt’: The State v Allan Woila [1978] PNGLR 99, see also The State v Towo Willy and 6 Others CR. 342-351 of 2003, The State v Kusap Kei Kuya [1983] PNGLR 263, The State v Joanes Mesak CR 1563 of 1995.

In a voir dire trial like the one before me where the defence objects to the tender or receipt into evidence a document, that is an issue of law which the Court must consider because, if accepted will go into the State’s evidence in order to secure a conviction. That in my view is totally contradictory to the terms of s.42 (2) of the Constitution and other legislations I have referred to earlier. 

There are in fact a number of factors involved in the instant case. First the accused is saying that, when he was arrested at his brother in-law’s house, he was badly assaulted. That after being taken into custody, between his place of arrest and the Kokopo police station, he was once more assaulted. Then before the confessional statement was taken, he was again assaulted. Four days after the accused was arrested, he was interviewed before which the confessional statement was taken. 

Coming first to the record of interview, the accused was asked from question 5 to 7 in the record of interview, the following questions with their answers:

"Q05: You have the right under section 42 (2) of the constitution of 
Papua New Guinea to communicate with a member of your family, a personal friend, private lawyer and the Public Solicitor to help you in your case. If you wish to see any of these people they can come and see you at the place where you are detained. Do you understand?
ANS: Yes.

Q06: Do you wish to see any of these people I have mentioned?
ANS: Public Solicitor.

Q07: Can we go ahead with the interview?
ANS: Yes."

Obviously, despite the interviewing officer saying in evidence in chief and cross-examination that, she allowed the accused to see his lawyer, there is no record of what she said in the record of interview, that is to say there was no break in the interview for the accused to see his lawyer. This is confirmed by Constable Hillary Sirinjui that, when the caution was administered, no opportunity was afforded to the accused to see his lawyer or a friend or family member. I commend Constable Sirinjui for his forthrightness in the way he gave his evidence having a vivid collection of events taking place during the record of interview. 

In Maxwell Arthur Schliebs v H Singh [1981] PNGLR 364 the Court there held that, a detainee who is held by police for purposes of interviewing him or her should not only be told of his rights to see a lawyer, a friend or family member, but the person must be given the proper chance to decide whether to exercised such right or not, and a real opportunity must be given to the accused to ‘exercise it in practice’. 

I expressed the same sentiments in the case of The State v Dickia Leo Wargat CR. No. 1152 of 2003 (17.5.05) at page 5 to 6 in the following terms:

"The second aspect of the above is that after, the confessional statement had been obtained, he was interviewed and when he was asked if he wanted to see someone such as his relatives or as in this case his parents, the accused said he wanted to see Councillor Allan Takiu. Although Dickia Leo Wargat said in answer to question 6 in the record of interview that he wanted to see that councilor after the record of interview, it was in the power of the interviewing officer to intervene and suspend the record of interview and allow the accused to see Allan Takiu."

Then I continued from the bottom of page 5 to the top of page 6 in the following words: 

"I find that, the accused in the instant voir dire was not given the opportunity to see his councilor as intended by s.42 (2) of the Constitution. By my reading of s.42 (2) (a) (b) and (c) of the above legislation, these provisions envisage something more than telling the accused to see a person of his choice. That opportunity must be afforded to him tangibly. That is the physical means must be given to the person being interviewed to effect s.42 (2) of the Constitution."

In the instant trial, this Court has discretion to either reject or admit into evidence the confessional statement and the record of interview.

If the Court finds that, the two documents sought to be tendered were obtained fairly, it can by its discretion admit them into evidence.

However, if I find that they were obtained contrary to either the Judges Rules or the Constitution, the Court must reject such documents in fairness to the accused: R v Wendo [1963] PNGLR 271. In Constitutional Reference No.1 of 1977 [1977] PNGLR362 a five member Supreme Court Judges said that, a Court can reject a confessional statement made voluntarily on the basis that it was unfairly obtained and that failure to comply with s.42 (2) alone does not render subsequent admissions by an accused person necessarily inadmissible.

One further argument raised by the accused is that, having been subjected to brutal assaults and beatings from the three policemen who arrested him in the village and latter at or near Papindo Trading Supermarket and even prior to obtaining his confessional statement, he knew that police would still assault him if he gave negative answers to whatever questions he would be asked so that, when he was asked in relation to the offence, he made admissions for something he never did and for his safety’s sake he admitted to having committed the offence. The issue posed by the accused is that, just four days after he was arrested he had been assaulted so much so that, when it came to making the confessional statement and the admissions in the record of interview, he made admissions only so as to avoid being beaten.

That may be on the bad side of things however, I commend the work of the interviewing officer and her corroborators for the very quick action taken to conduct the record of interview in time so as to avoid unnecessary delay in remanding accused for so long awaiting conduct of the record of interview.

I differentiate, the facts of this case from that of The State v Paul Brian Steven (2004) CR.- a judgment by His Honour Kirriwom; J. dated October 5, 2004 where the Court there admitted the record of interview into evidence on the basis that the accused had made admissions informally which was not recorded by police and the fact that the accused there had been detained for some months, there was ample opportunity for to have recovered from the experience of the earlier meeting with the police to enable the accused regain his confidence and his ability to judge and make the right decision.

The factual circumstances in the instant voir dire trial were that, four (4) days prior to the accused being interviewed, the accused had been bashed up by the three policemen if not on the scene at his brother in-law’s place. Within that same day, he was further assaulted the second time at some place near Papindo Trading.

With the experience gained within those four days, the accused had learnt a lot about police brutality. I am satisfied that, the accused was overborne by undue insistence or pressure when he made the confessional statement. I find the circumstances of this case falls into the quote I quoted earlier from McDermott’s case (supra) and therefore the Court will not accept the confessional statement into evidence.

On the record of interview, the onus is on the prosecution to prove that it was made voluntarily and the standard of proof is one of the criminal standard being ‘proof beyond reasonable doubt’: The State v Kusap Kei Kuya (supra). I observe witnesses Constables Kolish Moab and Bernard Tutmulai to be untruthful witnesses.

With Mrs. Moab, she seemed not to be sure of what she was saying. In many of her answers to questions put to her both in examination in chief and cross-examination she answered either "I don’t recall" or "I can’t recall". At times in her examination, she was evasive. I conclude that these two witnesses were hiding something from the Court.

The biggest flaw with the record of interview is that, though the accused was given the caution envisaged in s.42 (2) of the Constitution, he was not afforded the means to achieve such caution. 

It means the record of interview would have been suspended and the accused could have been taken to the Public Solicitor’s Office to see the lawyer he had chosen to see. In the Court’s view that is what it means when coming to deal with an accused particularly after the s.42 (2) caution has been given. 

Having said that, I rule that, the Court cannot accept the record of interview into evidence. The Court orders therefore that, both the confessional statement and the record of interview cannot be accepted into evidence.

__________________________

Lawyer for the State:	The Public Prosecutor
Lawyer for Accused:	Paul Paraka Lawyers