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State v Kamo [2011] PGNC 312; N4534 (28 March 2011)

N4534

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 875 OF 2008

THE STATE

V

TOBIAS UMO KAMO

Waigani: Kawi, J
2010: 19th, 22nd March
23rd April
2011: 28th March

CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc......Wilful murder trial –Voir dire- Objection to the tender of Confessional Statement of accused- Allegation of Confessional Statement taken involuntarily and in circumstances of unfairness – Allegation of accused being bashed up and having a shot gun fired at him inside police cell. Allegation of accused being locked up in cell without being fed and given drinking water to drink for one week-allegation of knife being placed on a table to induce admissions while Record of Interview being conducted- Allegations found to be largely manufactured and concocted by accused. Confessional Statement accepted and tendered into evidence.

EVIDENCE - Objection to the tender of the Record of Interview- Interview conducted after a delay of five months from the time accused first taken into police custody. Accused held in custody with a Court Order or a judicial remand is illegal – Record of interview rejected.

Facts:

The accused was indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code. He objected to the tender of the Confessional Statement and the Record of Interview on grounds that the admissions contained in those statements were made under circumstances of unfairness and not made voluntarily. A voir dire was then conducted. The Confessional Statement was obtained immediately on the same day that the accused was taken to the Police Station and charged. The accused was then taken in and held in Police custody without a Court Order or a Judicial Remand for five months. A Record of Interview was then conducted after the accused had been held in custody for five months.

Held:

(1) The environment in which he was kept in jail was more conducive to him making admissions which he would otherwise not have made. Further by being in police custody, he may have felt compromised or even compelled to make admissions unnecessarily without taking full advantage of his Constitutional rights under Section 42(2).

(2) An accused person held in custody for five months without a court order or a judicial remand was illegally detained. And a Record Of Interview obtained in such circumstances was obtained in unfair circumstances.

(3) Accordingly the Confessional Statement made on the 16th March 2010 is admitted into evidence, but the Record of Interview taken on the 10th of July 2008 some five months after the accused was taken into and held in police custody is rejected as being obtained in unfair circumstances.

Cases cited:

The State –v- Simon Tanuma [1997] PNGLR 475
Re Conditions of Detention at Bialla Police Lock up, West New Britain Province (2006) N3022.
State –v- Linus Rebo Dakoa [2009] N 3586
The State –v- Peter Maripi and Gaele Wagisa [1987] PNGLR 356
The State –v- Michael Balana [2007] CR 552 of 2003
The State –v– Kwambol Embogol [1977] N91
Uda Liki Gasika – v – The State [1983] PNGLR 58
R v Wendo [1963] PNGLR 242 to 245
R v Sira Kuras [1964] PNGLR 18 at 1
R v Fari Pako (1962) No. 259,
R v Emanuel Patrick-Domara (1953) No. 43,
The State v Joseph Maino [1977] PNGLR 216
R v Gelu-Gaua (1962) No. 256.
R v Amo and Amuna [1963] PNGLR 22 at 23
R v Wendo [1963] PNGLR 217 at 218.
R. v ToVarula [1973] PNGLR 140
State v Songe Mai & Gai Avi [1988] PNGLR 56
The State v Paro Wampa [1987] PNGLR 120
Constitutional Reference No. 1 of 1977 [1977] PNGLR 365
The State –v– Sukula (No 1) [1975] PNGLR 123,
The State –v– Joanes Mesak [2005] N2853,
The State –v- Paro Wampa [1987] PNGLR 120.
The State –v- Songe Mai & Gai Avi [1988] PNGLR 556.

Counsel:

Mr. P. Kaluwin, for the State
Mr. R. Yombon and Ms R Kwayaila, for the Accused

28 March, 2011

RULING ON VOIR DIRE

1. KAWI, J: The accused Tobias Umo Kamo is from Kalipa village, Tapini, Central Province. He is charged with one count of wilful murder of one Keru Kamo on the 8th March 2008 at Kalipa village, Tapini, in Central Province contrary to section 299 (1) Criminal Code. On arraignment the accused pleaded not guilty to the charge of wilful murder and the trial commenced with the prosecution calling two Police witnesses to give evidence.

2. The first witness was Sergeant Rara Didei, the officer in charge of Tapini Police Station. The other State witness is Detective Senior Constable Raymond Bayamo who is the Police Investigator and arresting officer in this case. During the evidence of Senior Constable Bayamo, the State Prosecutor, Mr Pondros sought to tender in to evidence two documents through him.

(a) The Confessional Statement.

(b) The accused's Record of Interview.

3. The Confessional Statement was allegedly signed by the accused after he was allegedly assaulted and threatened initially by Sergeant Didei at the Tapini Police Station and subsequently by Detective Senior Constable Raymond Boyamo at the Six (6) Mile Police Station which he alleges compelled him to sign the Confessional Statement out of fear of being assaulted or injured with a knife.

4. When the State sought to tender these two documents, learned Counsel for the defence, Mr Yombon strongly objected to the tender on the basis that the Statement recorded in these two documents was made involuntarily and in unfair circumstances.

5. The Confessional Statement and the Record of Interview allegedly contain incriminating statements admitting to the wilful murder.

6. As a result of the objections a voir dire (ie a trial within a trial) was held for the purpose of determining whether the documents should be admitted into evidence or not.

7. For purpose of determining the objections, I have read both documents in accordance with the guidelines set out by the Supreme Court in the case of Uda Liki Gasika – v – The State [1983] PNGLR 58. I did this because I have formed the view that they would assist me in understanding the evidence and submissions of learned counsels.

OBJECTIONS BY THE ACCUSED

8. The accused through his counsel filed a Notice of Objection to the Admissibility of the Record of Interview dated 10th July 2008 and also the Confessional Statement of the accused dated 15th March 2008.

BASIS OF THE OBJECTIONS - CONFESSIONAL STATEMENT

9. The defendant objected to the admissibility of the Confessional Statement on the basis that it was involuntarily made in breach of section 28 of the Evidence Act.

10. It is particularly alleged that at the time of the arrest at Tapini, Central Province, the accused was assaulted and gun butted by the commander of the Tapini Police Station, Sergeant Rara Didei and forced him to admit to killing the deceased. It is further alleged that as a result of the assaults he reluctantly admitted to killing the deceased.

11. The accused also alleges that he made the confessional statement in circumstances that were unfair to him. In particular he states that he was never told that whatever he said would be recorded in writing and used as evidence in court against him. That is a breach of the right accorded to accused persons under Constitution section 42(4)

12. The accused also objected to the admissibility of the Record of Interview. This was on the basis that the Record of Interview was involuntarily obtained and that it was obtained under circumstances of unfairness. The particulars of involuntariness are that it was obtained through force and threats at the time of arrest by the arresting officer Senior Constable Raymond Bayamo and initially by Sergeant Rara Didei. At the time of conducting the Record of Interview Senior Constable Raymond Bayamo is alleged to have placed a knife on the table and forced the accused to admit the killing under threat of assault with a knife.

13. Finally it was alleged that the accused made the admission under circumstances of unfairness in that the accused was not accorded his rights under sections 42(2) and 42(4) of the Constitution. The particular rights breached were;

(a) The right to be told of the reason for his arrest

(b) The right to see a lawyer or see his relatives or his lawyer.

First Ground of Objection: Confessional Statement made Involuntarily.

The allegations by the accused.

14. In support of his objections the accused was called to give evidence in voir dire. He gave evidence on oath and here is a summary of his evidence

15. On Sunday the 8th of March 2008, the accused came to the Tapini Police Station to report the killing of one Keru Kamo. Manning the Police Station was Sergeant Rara Didei all by himself. When the accused turned up at the Police Station he was immediately placed in the Police Station cells. While he was in the Police lock up he was severely beaten by Sergeant Rara Didei. He was gun butted and assaulted. The accused says that he came to the Police station to tell the Police that, he had gone to see the deceased Keru Kamo and ask him as to why he (ie the deceased) had killed his pig. At this point the deceased took out his axe but anticipating being cut with an axe, the accused took out his own axe and cut the deceased on the back and neck using the back of the axe or the blunt part of the axe. He was then taken to the Police lock up and was locked up in custody. At one stage he alleged that Sergeant Didei fired a shotgun at him at a distance of about one (1) meter and shot him on both legs. The accused then immediately changed his story to say that he jumped and the bullets went underneath between his two legs. He further stated that only the gun powder fell on his arm and burnt his arm badly leaving behind two nasty but visible scars. The court then asked him to show his visible scars, at which he changed his story again to say he only smelled gun powder. Further more he was never fed while in custody and for that matter he alleges that Sergeant Rara Didei did not allow anyone to visit him while he was in custody for one whole week. For that one whole week he did not eat anything, but was just languishing in police custody. Later on during cross-examination he again changed his story to say that one of his sisters did come to visit him and bring him some food.

16. He was locked up in custody without being fed for one whole week and then was flown to Port Moresby where he was taken to the 6 Mile Police Station where in the presence of Sergeant Didei he was forced to admit to the killing in circumstances which he described as unfair and involuntarily.

The Evidence of Police.

17. Sergeant Rara Didei gave evidence on oath. He stated that he was in his house as this was a Sunday, when the accused came to his house holding a long handle axe. The axe was covered with blood and when the accused walked up to Sergeant Didei he (accused) told him (Sergeant Didei) that he had come to see him and to tell him that he had killed one Keru Kamo. Sergeant Didei took the axe from the accused and placed it inside his house for safe keeping. He then sat down with the accused on the verandah of his house and gave him some food to eat as by then it was getting dark. The accused was then given a room to sleep with Sergeant Didei and his family. Sergeant Didei went to the extreme of allowing the accused to stay with his family because he regarded the accused as a bother in law or a tambu, as Sergeant Didei is married to a relative of the accused also from Kalipa village. Early the next morning, at about 6:00 am, Sergeant Didei set out for Kalipa village to go and investigate this killing. The accused in the meantime was left behind in the house with his sister, Sergeant Didei's wife. It took him about eight hours walk to Kalipa village arriving there at about 4:00 pm in the afternoon. While he was in the village he took photographs of the deceased using a Digital Camera which he had borrowed for that purpose from Tapini High School. He identified the photographs which were initially admitted as Exhibits Marked For Identification purposes only. Subsequently the photographs were tendered into evidence and marked as Exhibits. They were tendered through Detective Senior Constable Raymond Boyamo of the 6 mile Police Station. Senior Constable Raymond Boyamo had been given the camera by Sergeant Rara Didei to down load the photographs and develop them.

The Law

The Rule on Voluntariness

18. For a confessional statement to be admitted into evidence, it must be made voluntarily. A statement that is made involuntarily is inadmissible. Two issues immediately arise here. When is a statement made voluntarily? And who has to prove it; it is the prosecution or the accused? See The State v Linus Rebo Dakoa [2009] N3586

When is a statement made voluntarily?

19. A voluntary statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means the accused was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue influences or pressure, it cannot be voluntary (see The State –v– Kwambol Embogol [1977] N91. Likewise, if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 of the Evidence Act. The court must be satisfied that a confession which is tendered in evidence has been made voluntarily because of section 28 of the Evidence Act which provides:

"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."

and also because:

"... the common law is also in force...and under that law whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or to remain silent, it must be shown to have been so made before it can be entered into evidence against him.": R v Wendo [1963] PNGLR 242 to 245 per Dixon CJ and Taylor and Owen JJ.

20. And that the statement was made voluntarily will not necessarily be established by the recitation of a formula of words because:

"it is an essential condition of voluntaries of a confession that the accused person should really understand that he is under no compulsion to speak., that he is free to speak.": See R v Sira Kuras [1964] PNGLR 18 at 19 per Smithers J.

21. The accused must understand their position even when it requires the interviewer to use additional words to those set out in his instruction manual and where a doubt remains, to get the accused to express in their own words their understanding of the right to remain silent: See R v Fari Pako (1962) No. 259, R v Emanuel Patrick-Domara (1953) No. 43, The State v Joseph Maino [1977] PNGLR 216 and R v Gelu-Gaua (1962) No. 256.

23. The general onus is still upon the State to prove voluntariness: R v. Fari Pako (1962) No.259, R v Amo and Amuna [1963] PNGLR 22 at 23 and R v Wendo [1963] PNGLR 217 at 218.

24. As the tribunal of fact I must decide what I believe from the conflicting accounts the evidence presents. I may read the confessional statement to assist me in considering credibility: R. v ToVarula [1973] PNGLR 140 per Minogue CJ,, but the best practice is to hear the evidence from both sides and then decide whether a reading of the statement would assist: Uda Liki Gasika v The State [1983] PNGLR 58.

Constitution section 42(2) to (4) provides:

"(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 of his rights under this subsection.

(3) a person who is arrested or detained –

• (a) for the purpose of being brought before a court in the execution of an order of the court; or
  
• (d) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph.
  
• (e) Shall not be further held in custody in connection with the offence except by order of a court or judicial officer.
  

(4) the necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.

25. Section 42(2)(a) to (c) of the Constitution is reproduced in the Arrest Act at Section 18(1)(c) as rights for the arrested or detained person which the officer in charge of the police station has the duty to inform the person of promptly in a language they understand. Then at Section 18(2) those same rights and duties are given to the officer in charge of the police station and the arrested or detained person to be permitted "at all times".

26. The majority held in the case of State v Songe Mai & Gai Avi [1988] PNGLR 56 that detention short of arrest is illegal. The effect of the rights granted by Constitution Section 42 is that "... before any questions are asked about a person's participation in a crime he is to be informed of his rights.": The State v Paro Wampa [1987] PNGLR 120, Kapi DCJ (as he then was). The rights under Constitution s 42(2) and Arrest Act s 18 become available when a person is detained or arrest. They are not linked to Confessional Statements or Record of Interview. Advising persons detained of those rights should not be delayed until a record of interview is taken immediately upon the person being brought to the police station.

27. A breach by the police of Constitution Section 42(2) does not automatically, for that reason alone, exclude a confessional statement as was held in Constitutional Reference No. 1 of 1977 [1977] PNGLR 365, Frost CJ, Prentice DCJ, Williams J.' Kearney J. and Prichard J. The findings in that case are set out succinctly in Criminal Law and Practice of Papua and New Guinea, Chalmers Weisbrot, Injia and Andrew, 3rd edition (1985) at page 659 as follows:

"The Court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion, the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the court. Failure to comply with the provisions of s 42(2) of the Constitution, for that reason alone, does not render subsequent admissions by an accused person necessarily inadmissible. However, the court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s 57 of the Constitution to exclude the admission. Upon the facts of a case, the court may very well feel bound, as the only way to protect the accused's rights, to reject an admission obtained in consequence of the breach."

28. I have read both the confessional statement and the record of interview in this case because I formed the view that they would assist me in understanding the evidence and counsels submission.

Onus of Proof

29. Does the accused have to prove that the statement was not made voluntarily? Or does the Prosecution have to prove that it was made voluntarily? The rule operates in this way. First, the accused must adduce evidence that the balance of probabilities support the allegation of involuntariness. If the burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible. If the burden is discharged, the onus shifts to the State to negate the allegations beyond reasonable doubt.

This Case

30. The serious allegations raised by the accused have already been canvassed in detail above and I do not need to repeat them here. The accused made those serious allegations when he gave evidence on oath. And when he gave sworn evidence, the balance of probabilities support the allegation of involuntariness. The burden then shifted to Police to disprove those allegations.

Has The State discharged that burden? Court Findings of Facts

31. In determining this issue, I will also assess the evidence of both the accused and the two police officers, Sergeant Didei and Detective Senior Constable Rayond Bayamo.

• The evidence of the accused of being severely assaulted by Sergeant Didei at the Tapini Police Station, and being gun butted and fired upon by Sergeant Didei, locked in the cell for one week, without food and water is evidence which cannot be simply accepted at face value. There is no medical evidence to support and verify the accused's evidence of being severely beaten, let alone verifying his gun wounds.
  
• He changed his story many of times in the course of his testimony. At one stage, he said that he was fired upon by Sergeant Didei at point blank range, at a distance of about 1.2 meters, but he jumped to avoid the bullets which passed underneath his two legs. He said the bullets missed him, (initially the story is that he was wounded on both legs) but this time gun powder fell on his arm and burnt him leaving behind two ugly but visible scars on his arm. This prompted the court to ask him to hold up his arm and show the court the visible scars. He did not do so, but this prompted the accused to quickly change his story and he said he only smelled gun powder. Again no medical evidence was adduced by the accused either to verify him being shot at and being wounded on both of his leg or the gun powder burning him on his hands. It is incumbent upon counsel to produce such evidence to verify the allegations. In absence of such a vital piece of evidence, I will treat these allegations simply as manufactured story concocted and borne out of one's own imagination.
  
• In cross-examination he was asked whether anyone visited him in custody. Initially he maintained that no one visited him and he languished in cells for one week without food and water. Subsequently he changed his story to say that his sister visited him to give him food.
  
• I accept the evidence of Sergeant Rara Didei, that the accused was never locked up in custody at the Tapini Police Station as the cell conditions had deteriorated to such an extent that it was not fit for human habitation.
  
• I accept that the accused turned up at Sergeant Rara Didei's home with the bloody axe. He did not turn up at the police station as he claims. I make this findings on the basis of two factors which I find:
  
  • (a) It was a Sunday afternoon and Sergeant Didei was not at work in the police station;
    
  • (b) Sergeant Didei is also married to a woman from Kalipa village, the same village where the accused comes from. He considered the accused as his brother in-law and a family member. In fact Sergeant Didei says that his wife is indeed related to the accused.
    
• When the accused turned up at Sergeant Didei's home, because of the cell block conditions, he was allocated a room in Sergeant Didei's house and fed while he was with Sergeant Didei. Sergeant Didei says he did not treat the accused as a prisoner, but more as a brother in-law. I accept this.
  
• The exigencies of travel from Tapini to Port Moresby are such that the accused had to stay with Sergeant Didei's and his wife for one week, because airplane charters to Tapini are weekly and they are done only by the Catholic Church. After a week Sergeant Didei and the accused travelled to Port Moresby on the Catholic Church charter.
  
• After being flown to Port Moresby Sergeant Didei took the accused straight to the 6 Mile Police Station. I also accept the evidence of Senior Constable Raymond Bayamo that no compulsion or threat of any kind was issued to the accused before he signed his confessional statement.
  
• The court accepts and finds that Sergeant Didei was not physically present in the office where the accused signed his confessional statement. Sergeant Didei's hand bag was in the office, but he was not there in person. The persons in the room were Senior Constable Bayamo and his CID Supervisor Vincent Akemot.
  

32. I had the occasion to observe and assess the demeanor of the accused when he was giving evidence on oath. Here is a simple villager. He is an uneducated and unsophisticated man. He does not understand and appreciate the criminal justice system let alone the technical rules of evidence and procedure.

33. In my assessment the accused is never a witness of truth. He lied in many instances and these are matters which goes to his credibility. I find that all the evidence he gave under oath was all manufactured. The accused gave me the impression that he was carefully coached and drilled and rehearsed many times and told what to say in court. There is however no evidence before me to enable me to tell who it was that coached the accused.

34. Statement after being administered his section 42(2) rights. The Police also administered the short form of the caution in the Judge's Rules before the accused signed his own confessional statement. I find that this was done without any compulsion or threats or inducement from Police personnel.

35. When administering both the Section 42(2) rights and the Judge's Rules, the accused was warned of his rights that whatever he said would be taken down in writing and used against him in court. I find that the Confessional Statement was voluntarily signed.

36. The accused further contested that he actually did sign the Confessional Statement. He says that he has never been to school and does not know how to read and write. He alleges that the purported signature appearing on the Confessional Statement is not his but was forged by Senior Constable Raymond Bayamo.

37. The accused cannot be believed on this aspect either. In cross-examination he did say that he left school after grade 2. He also said that he only learnt to speak pidgin while inside the prison at Bomana. He however could pronounce words very well while giving evidence. At one stage he was asked to estimate the distance between the Tapini Police Station and Sergeant Didei's house. He clearly estimated the distance to be from the witnesses box and the Committal Court. He had no difficulty at all in mentioning the word "Committal Court".

38. I find that the accused clearly signed the Confessional Statement voluntarily and without compulsion of any sort and without any intimidation at all from the Police personnel present at the scene. The signature on the Confessional Statement is the accused's signature which is very consistent with a person of his educational level. This signature was never forged by police.

39. I find that the State has discharged that burden of proving that the Confessional Statement was voluntarily signed by the accused. Having read the Confessional Statement, I find that it itself is a quite a free flowing document and is quite rationale. There is no reluctance exhibited by the accused in the Statement to speak out fully about this matter and in my view it bears the hall marks of a completely voluntary statement.

40. For that reason I would exercise my discretion to admit the Confessional Statement. Another matter I must also take into account relates to the circumstances of the Country. To start with Tapini is a very remote locality of the central Province where government services to this rural community have been neglected and are virtually nil. The Police presence in the part of the country is also virtually nil. There is only one general duty policeman looking after a population of over 50,000 people. There is no CID police personnel stationed in Tapini. Sergeant Rara Didei is the lone Policeman manning the Tapini Police Station and looking after some 50,000 people in the Tapini District. The facilities, as well as the number of police personnel in Tapini are not sufficient to allow Police to carry out their work in a proper and professional manner. These facilities exists in Port Moresby only and the accused Tobias Umo Kamo was given the first reasonable opportunity to say anything if he wished to do so, when they flew into Port Moresby. The court finds that the one week delay in taking the accused to Police is not unreasonable nor inordinate. The court finds that there was some delay in quickly taking down the accused to the police station for him to be formally arrested and charged. But this delay in taking the accused quickly down to Port Moresby to have him arrested and charged is excusable by virtue of section 43(4) of the Constitution. That is to say that the exigencies of travel were such that there was a slight delay in taking down the accused to Port Moresby. The only means of transport to Tapini is by airplane. And the only airplane that goes there every Saturday is the Catholic Church charter. So Sergeant Didei had to depend on the kindheartedness and good will of the Catholic Church to get them on board their charter which they did. As soon as they got into Port Moresby, the accused was given all reasonable opportunity to respond to the allegations made against him when he was brought straight to the Six Mile Police Station and put in the hands of the CID investigating officer.

41. I would therefore dismiss the first ground of objection that the confessional statement was involuntarily signed and admit the confessional statement into evidence.

SECOND GROUND OF OBJECTION: UNFAIRNESS TO THE ACCUSED BY POLICE FOLLOWING BREACH OF HUMAN RIGHTS AND POLICE IMPROPRIETY – RECORD OF INTERVIEW

42. The accused argues that the admission in the Record of Interview was made under circumstances of unfairness in that the accused was not accorded his right under Section 42(2) of the Constitution particularly the right to be told of the reason for his arrest in a language that he understands and the right to see or talk to a relative or a lawyer of his choice.

43. The defence objects to the admissibility of the Record of Interview on the basis that the admissions contained in the Record of Interview was involuntarily obtained and it was also obtained in circumstances of Unfairness.

Nature of Unfairness Objection

44. This is a different type of objection to the involuntariness objection canvassed earlier in ground 1. Cannings J in The State v Linus Rebo Dakoa [2009] N3586 explained the objection based on unfairness in this way.

"An objection based on unfairness requires the court to take a broader view of all the circumstances in which the incriminating statements and admissions were made. The court will have to make an assessment of whether any of the accused constitutional rights were breached; or whether there was any impropriety in the way police investigated the case or dealt with the accused. The question then to ask is; given all the circumstances, in particular the extent and number of breaches of the law or instances of impropriety, would it be unfair to allow the statement to be adduced in evidence? Because voluntariness and unfairness are deferent types of objections, it is possible that one will fail but the other will succeed. E.g The Sate –v– Sukula (No 1) [1975] PNGLR 123, The State –v– Joanes Mesak [2005] N2853, in each case an Involuntariness objection failed, but the Unfairness objection succeeded."

45. The defence argues that it would be unfair to allow both the confessional statement and the Record of Interview into evidence, as the police acted improperly and breached the accused's constitutional rights in a number of respects. He details this as follows:

(a) The accused was not properly informed of and afforded his rights of access to a relative or a friend' or a lawyer, including the Public Solicitor if he is entitled to legal aid, as required by Section 42(2) of the Constitution.

(b) He was not told of the reasons for his arrest.

(c) After he signed the Confessional Statement, he was locked up in police custody and was detained without charge or judicial remand.

(d) He languished in police detention for five (5) months after he signed the confessional statement.

(e) The Record of Interview was not conducted immediately after he signed his confessional Statement.

(f) Sergeant Rora Didei's evidence was never included in the Police Committal brief. However he was called as the first police witness in this case.

Evidence of Sergeant Didei being unfair

46. The accused argues that Sergeant Rara Didei's evidence was never included in the Police Committal Brief. His calling as a State witness therefore caught the defence by surprise and was therefore most unfair. The case of The State-v- Raphael Kewangu [2002] N2189 was cited in support of this argument. Kewangu's case concerned a situation where the State had called all its witnesses, but could not prove its case. Finally the State called in two last witnesses, who were not even named in the indictment as possible witnesses and neither did they give their statements to form part of the Police committal brief. Rejecting their evidence, Kandakasi J held that evidence not forming part of the earlier State case, or hand up brief but called in, in an attempt to build a case against the accused when the earlier evidence failed to do so, amount to recent inventions and therefore unreliable in much the same way as a belated raising of the defence of alibi by an accused is.

47. In my view Rara Didei's case can be easily distinguished from the Kewangu case. Kewangu's case was a situation where the State simply brought in two State witnesses and tried to connect their evidence to robbery implicating the accused in the process. They were called in by the State to simply build up a case against the accused. Sergeant Rara Didei on the other hand was a key player in the State case. He was first involved with the accused in his initial apprehension, where he stayed with the Didei Family for a week before travelling down with the accused to Port Moresby where he handed the accused to the Six Mile Police Station. There CID then took over this case. Unlike Kewangu, Rara Didei was always a key State witnesses and I do not find that his evidence could have taken the defence by surprise. I also find that it was proper to call him so that he could respond to all allegations of Police impropriety and brutality leveled against him. I would therefore reject any arguments on unfairness based on this ground.

Findings of fact

48. The sequence of events surrounding the apprehension and detention of the accused and his signing of the Record of Interview are not uncontested. It bails down to the court accepting whose evidence to believe.

Determination of alleged breaches of Constitutional rights

49. I will now address the matter raised by the accused as constituting a breach of his constitutional rights under Section 42 of the Constitution.

(a) Not being informed of and afforded his rights under Section 42(2) of the Constitution

50. It was submitted that he Police or the arresting officer have an obligation to inform a person arrested or an accused person of his Section 42 rights the moment they are taken into police custody.

51. Section 42(7) of the Constitution is stated in the following terms:

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 or 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

(d) shall be informed immediately on his arrest or detention of his rights under this subsection.

52. These requirements are complemented by Section 18(1) (duties of Officer-in-charge of Station) of the Arrest Act.

• It is very clear that when a person is Arrested or detained, he acquires five district rights. He shall be –
  
• Informed promptly in a language that he understands of the reasons for his arrest and detention and if any charge against him.
  
• Permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and
  
• Permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and
  
• Given adequate opportunity to give instructions to a lawyer of his choice, in the place in which he is detained; and
  
• Informed immediately on his arrest or detention of his rights under Section 42(2).
  

53. A person is "arrested" when deprived totally of his personal liberty, or when the person is touched in a way that he is made aware that he is under compulsion in relation to a criminal matter. (The State –v- Songke Mai & Gai Avi [1988] PNGLR 556.

54. As soon as a person is arrested, he or she must be informed of and afforded their Section 42(2) rights. The timing is quite critical here. Kapi DCJ explained this in the case of The State –v- Paro Wampa [1987] PNGLR 120.

"The need to inform a person of his rights under this provision arises at the time he loses his liberty. ... This effectively means that before any questions are asked about a person's participation in a crime, he is to be informed of his rights .... The need to inform the person of his rights arises at the time of the arrest and detention and not at the time of the record of interview."

55. In this case, the evidence shows that the accused presented himself to Sergeant Rara Didei on the8th April 2008. He says that he presented himself at the police station, while Sergeant Didei says that he came to his house. I have canvassed in detail this aspect of the evidence already and find that the accused presented himself to Sergeant Didei at his house. Sergeant Didei treated the accused as a family member, more specifically as a tambu, and for this reason allowed him to stay in his house for his own safety. He was fed and given a room in the house. The case was not discussed at any length between the accused and Sergeant Didei while the accused was lodging in with Sergeant Didei and his family. He was not arrested nor detained in any custody. I am not prepared to find that he was arrested and detained in Sergeant Didei's family home.

56. The accused person stayed with Sergeant Didei and his family for one week. This was all to do with the exigencies of travel due largely to the fact that flights into and out of Tapini occur once a week on Saturday only. These are the charter flights done by the Catholic Church. Sergeant Didei and the accused therefore traveled to Port Moresby from Tapini on a Saturday on the Catholic Church charter. When they arrived in Port Moresby he was immediately taken to the six (6) mile Police Station on the same day. At the 6-mile Police Station Sergeant Didei briefed senior constable Raymond Boyamo who then proceeded onto arrest the accused and administer the caution in accordance with the Judge's rules, before obtaining a signed Confessional Statement from the accused. In those circumstances I find that the accused was not deprived of his liberty in any way at all in Tapini, despite him raising serious allegations of impropriety on the part of Sergeant Didei and serious breaches of human rights by this policeman.

57. I have already found that what happened at Tapini was largely concocted and manufactured by the accused for his own convenience.

58. The accused was however arrested at 6-mile Police Station on the 16th March 2008, when both him and Sergeant Didei arrived in Port Moresby. The court is of the view that for all intents and purposes of assessing whether he was informed of and afforded his constitutional rights. It was on the 16th of March that he was arrested and so it was on this day that the fine distinct rights in Section 42(2) should have been afforded to him.

Were they afforded to him?

59. The Arresting Officer Senior Constable Raymond Boyamo was called by the prosecution and he gave evidence on oath. He states that the accused person was administered the caution in accordance with the short form of Judges Rules and the Section 42(2) constitutional rights administered before he made the confessional statement and had it signed.

60. I find that there were no breaches of the administration of the constitutional rights in so far as the Confessional Statement was concerned. For this reason I will dismiss the objections in relation to the Confessional Statement being made involuntarily or in unfair circumstances and will admit the confessional statement into evidence.

What about the Record of Interview?

61. The Record of Interview was not conducted until five months later. Immediately after obtaining the confessional statement the accused was detained in police custody at the Boroko cells where he languished in custody for five months. The evidence is that the Record of Interview was conducted after five (5) months on the 10th July 2008. In other wards the accused was held in police custody without a charge or judicial remand, for a period of five (5) months.

62. In The State –v- Michael Balana [2007] CR 552 of 2003, Lay J held that a break of two months into the middle of the record of interview was too long to regard the interview as one event. He held further that the circumstances of the record of interview was grossly unfair to the accused. In the State –v- Linus Rebo Dakoa [2009] N 3586, the court held that the accused was held in custody for 13 days before an attempt was made to inform him of his section 42(2) rights. It further held that he was unlawfully detained, without charge or judicial remand, for a period of at least 2 weeks; his confessional statement and record of interview were obtained during the period of unlawful detention.

63. The court found that that this and other instances of police impropriety amounted to severe breaches of human rights provisions of the Constitution as well as constituting other aspects of improper police conduct, which were offensive and serious, it would be unfair to allow the accused's admission to be admitted into evidence.

64. The court accordingly refused to admit into evidence the Confessional Statement and the Record of Interview.

65. In The State –v- Peter Maripi and Gaele Wagisa [1987] PNGLR 356 a delay of six (6) weeks was condemned but the Record of Interview was admitted because the accused was an escapee prisoner who was going to be in custody in any event, so that the delay did not affect him.

66. This is not the case here where the accused was awaiting his constitutional rights to be dealt with through the Judicial System. The longer the imprisonment, the more likely that the person in custody will be vulnerable to every influence which might impact on his future. The defence argue that police acted unfairly when they sought to conduct a record of interview after a period of 5 months when the accused was languishing in police detention without being charged or without a judicial remand. This brings me to consider Section 42(3) of the Constitution which is stated in this terms:

(a) for the purpose of being brought before a court in execution of an order of a court; or

(b) upon reasonable suspicion of his having committed; or being about to commit an offence;

shall, unless he is released, be brought without delay before a court or a judicial officer and in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer. The court is of the view that Section 42(3) confers two rights upon a person who is arrested and detained.

67. The first is that he must be brought before a court or a judicial officer "without delay" i.e. immediately. Secondly he is not to be detained in custody any longer except by a court order – See Re Conditions of Detention at Bialla Police Lock up, West New Britain Province (2006) N3022. See also State –v- Linus Rebo Dakoa [2009] N 3586.

68. In this case the accused was arrested and detained on Saturday the 16th March 2008. He should have been brought the very next business day, i.e. Monday 18th March 2008. Instead he was locked up and languished in police detention for five (5) months until the 10th July 2010 when he was taken out for a formal record of interview to be conducted. After the Record of Interview he was then placed back in custody. He was not brought to court until mid July 2008. There were no good and substantial reasons given to explain the failure to comply with Section 42(3). Section 42(4) is in the following terms:

"The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person, concerned, be such a ground."

69. I find that no good and substantial reasons have been advanced in this case. Section 42(3) was breached on 15th March 2008 or immediately thereafter, and five (5) months later a Record of Interview was conducted. He was in fact detained without a court order or judicial remand without a court order or a judicial remand in my view was illegally detained. A record of interview obtained in those circumstances in my view was obtained in unfair circumstances.

70. It was also argued that obtaining a Record of Interview after the accused had already made a confessional statement is not fair. In the case of The State –v- Anton Turik and Wiki Jack Peltan [1986] PNGLR 138 the accused persons were detained on suspicion of being involved in the robbery of a liquor shop. The accused Anton Turik then underwent a formal record of interview some 18 hours after he had made a confessional statement. Pratt J stated that it did not matter whether the record of interview was taken voluntarily. He said:

"The point is that, in my view, it is not proper to examine and cross-examine an accused man some 18 hours or so after he has made the full confessional statement. There must be an end to the matter somewhere or other. Where the cut-off comes is not easy to say. Each case must be looked at in the light of its own circumstances. Certainly when a second attempt to obtain information is made by police, that may certainly give a greater feeling in the mind of the accused that he has to do what the police say. Even 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 a record of interview."

71. In The State –v- Simon Tanuma [1997] PNGLR 475 Injia J (as he then was) held that it was "not necessary" having obtained a confessional statement for the police "to subject the accused to another more vigorous interrogation to obtain more confessions".

72. In The State –v- Michael Balana, police took down a confessional statement by the accused without notifying him of his right to remain silent or his section 42(2) rights and then took a record of interview, Lay J took the view that this was unfair to the accused. He said:

"The practice of having an informal chat with the accused after arrest without administering a caution, or taking a confessional statement, then conducting a record of interview at a later date is improper. It has the danger that the accused will feel that he has committed himself to a certain version of events before he has learned of his rights and thus, where a proper caution is administered, he will feel he cannot take advantage of what he then learns, rendering the caution meaningless."

73. As the record of interview was not conducted until after five (5) months of the accused languishing in Jail, the environment in which he was kept in jail was more conducive to him making admissions which he would otherwise not have made. Further by being in police custody, he may have felt compromised or even compelled to make admissions unnecessarily without taking full advantage of his Section 42(2) rights.

74. For this reason I will exercise my discretion to disallow the record of interview into evidence. The Confessional Statement will however be received into evidence.

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Acting Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused