N5122

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 959 of 2010

THE STATE

-v-

LUCAS YOVURE

Wewak: Geita AJ
2012: 13th, 14th November
2013: 25th March

 EVIDENCE - Criminal Law - Trial on Voir Dire -Confessions - Admissibility - Discretion to reject confession unfairly obtained - Onus of proving unfairness on accused-Standard of proof of voluntariness in obtaining Confessional Statements is proof beyond reasonable doubt - Confessional Statement not obtained fairly.

CRIMINAL LAW – Voir Dire - Defence case proven beyond reasonable doubt-Confessional Statement not allowed into evidence - Sections 37 & 42 (2) Constitution remains supreme – Breaches of Section 28 Evidence Act in obtaining confessional statements fatal - Accused acquitted.

Cases Cited

Papua New Guinea Cases

R v.Fari Pako (1962) N 259, 
R v Amo and Amuna [1963] PNGLR 22 
R v Wendo [1963] PNGLR 217 
The State v Allan Woila [1978] PNGLR 99
The State v John Ave & 2 Others (2004) N2622
The State v Raphael Walimini (2004) N2661 
The State v Joanes Mesak (2005) N2853)

Overseas Cases

McDermott v The King (1948) 76 C.L.R

References

Criminal Law and Practice in Papua New Guinea by Chalmers, Wesbot, Injia and Andrew at pp.642-643. 

Counsel:

Mr. Popeu, for the State
Mr. Sakumai, for the Accused

RULING ON ADMISSIBILITY OF THE CONFESSIONAL
STATEMENT ON THE VOIR DIRE

25 March, 2013

1. GEITA AJ: The accused from Kairuvu village, East Sepik Province was charged with one count of armed robbery under s. 386 (1) (2) (a) (b) (c) of the Criminal Code Act. The state also relied on s. 7 of the Criminal Code Act in that the accused was allegedly involved in aiding and planned the whole robbery of Papindo Trading Wewak on 23 February 2008 in which substantial amounts of money and property were stolen.

2.	During the State's case on 14 November 2012, its attempts to tender a confessional statement was objected too by defence counsel on behalf of his client for breaches of Sections 28 Evidence Act and s.42 (2) of the Constitution. This than necessitated the conduct of a voir dire. The full particulars of the objections were given to the State prior to trial and are detailed hereunder:

.....the confessional statement was obtained after the accused was assaulted. His statement was obtained under duress and promise that he would become state witness and let off the charge of armed robbery.

3.	The State called three witnesses who gave evidence and were examined on the allegations by defence. State witness 1, Investigation Officer Detective Constable Peter Tupaia confirmed that he was the lead man in collecting and collating all evidence involving the accused relating to the Papindo Trading armed robbery. He said the accused was on the run soon after the robbery and was wanted by police for questioning. However on 13 May 2008 he voluntarily surrendered to Reserve Constable Stanley Samban who handed him over to CID at Wewak Police Station. At the police station Peter Tupaia said he took the accused's statement which was freely given by him in which he confessed to him about the robbery at Papindo Trading in 2008.

4.	Detective Constable Tupaia told the Court that the accused was cautioned and freely gave his confessional statement and was later released to his guarantor Stanley Samban on the strength of his statement. One of the conditions for his release was for him to report to the police station when required.

5.	On 26 May 2008, the accused was taken to the police station and later to the district court on the same day where he was said to have read the statement, agreed and signed it before a commissioner for oaths. DC Tupaia said after signing his confessional statement the accused went into hiding again and all police requests for him to come to the police station were futile. It was not until 3 July 2009 when he was arrested. Witness Tupaia said as investigation officer he took down the accused confessional statement on 13 May 2008, by typing it in English on paper in the presence of Senior Constable Nelson Ides and Senior Sergeant Patrick Wales. He said the confession was signed by the accused on his free will on 26 May 2008 at Wewak Hill Court House before a Commissioner for Oaths.

6.	In the process of State's attempts to tender the accused's confessional statement into evidence, defence objected strenuously. The court upheld defence objections resulting in the Voir Dire proceedings.

7.	State's second witness Sergeant Stenet Wohuanen, gave evidence in response to defence objections on the voluntariness of accused confessional statement and allegations of assault by him and said he was not part of the investigation team nor was he present at the time the statement was obtained on 13 May 2008. When asked during cross examination if he was at the police station on 13 May 2008 he was evasive and said that's where he worked but denied seeing Sergeant Patrick Wales, Nelson Ides at the police station. The witness admitted seeing Peter Tupaia and Lawrence Tapis at the station that day. He recalled making a statement dated 21 May 2009 as a witness in this case and attested to his signature. In response to allegations of him assaulting the accused with a gun on 13 May 2008 the witness said he was confused and could not recall the incident of assault as the investigations were conducted in two parts.

8.	Defence attempts to tender the witness Wohuanen's statement into evidence were objected to by the State and were granted. After hearing brief submissions for and his statement dated 21 May 2009 was admitted for identification purposes. When he was asked if he made that statement the witness admitted making it but said it was given to whoever was in charge of the second investigations.

9.	When asked if there were standard procedures within the Police Force in obtaining Confessional Statements, the witness answered in the affirmative and said persons were cautioned and their statements written down. The witness denied being present when the accused gave his statement to Peter Tupaia on 13 May 2008 and further denied assaulting the accused as alleged.

10.	State's third witness Detective Constable Nelson Ides denied allegations of treats, intimidation, provocation, and assault by him or any other persons during the conduct of interviews and obtaining the accused's confessional statement. He said he was the corroborator throughout the interview and denied all allegations levelled at the state by the accused.

11. During cross examination the witness admitted that Patrick Wales was present as he was part of the investigations team and said it was normal for other police officer to be present during the conduct of record of interview. He however said he could not recall if Peter Tupaia was present at the police station and denied seeing Sergeant Stenet at the station. When questioned if it was true that Sergeant Stenet assaulted the accused he replied in the negative and said the Sergeant was not with them at the time.The witness agreed that the accused spoke in pidgin and his statement was typed directly into English. The English version of his statement was returned to him and was signed after reading it. The witness said at the time the witness did not raise any concerns reading in English. During further cross examinations the witness was asked if it was true that the accused remained silent he said it was his right to remain silent.

12.	State Witness Peter Tupaia was recalled to be examined on why the accused's affidavit now marked for identification (MFI 1) was missing from prosecution and court files respectively. Witness Tupaia said the statement referring to MFI 1 was taken by the second investigation team in which the accused was part and parcel of the team in which he stayed as a state witness. He denied any knowledge of the statement saying that it was obtained without his knowledge. During cross examination he told court that the first time he saw the statement (MFI 1) was in court during voir dire. He admitted that he was the primary investigator in the case of Lawrence Tapis and Francis Kufa and obtained their statements. When asked if he compiled all evidence and presented to the committal court he answered in the affirmative but denied the existence of MFI 1 in the report presented to court. When Tupaia was told that the author of the statement (MFI 1), Stenet Wohuanen had verified his signature and statement and questioned why it was missing from the committal court file and the National Court file he replied and I quote:-

"Since I am the primary investigator I was not informed of the statement given to the second investigation."

13. When further questioned if he was aware that the requirement of law is such that any statements favourable to accused persons must be made available to the courts, he answered and said he was aware. He said the document was removed from the file without his knowledge."

 Submissions

14. Defence counsel submitted that the evidence (MFI 1) be admitted into evidence as it has been authenticated by its author Stent Wohenennu and given to the second team of investigators. Although the Investigation officer has denied any knowledge of its existence the statement was properly prepared and presented in the usual manner and form used by police in recording such statements. Mr. Sakumai strongly submitted that the court's refusal to accept this statement would be unfair on the accused. He advanced that the statement be received pursuant to s. 23 Evidence Act as they implicate police brutality. Counsel submitted that since the statement has now been authenticated by its author and now available before the court, the court should accept and receive the statement.

15. The State counsel strongly rebutted that the issue of the accused being denied material favourable to his case was a non issue as he already had that evidence in his possession. It is the State and Courts which were denied of this information hence this argument is distinguished. I agree with the State on this point. Mr Popeu advanced that although the statement was authenticated by its author the state takes issue with some of its contents contained therein saying that state witnesses denied its existence and content. Mr. Popeu submitted that the state objects to the receipt of the statement into evidence. Counsel however invited the court to exercise its discretion on this matter in the interest of justice.
Outline 

The exhibits 

16. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence. 

TABLE 1 – SUMMARY OF EXHIBITS & EVIDENCE – PROSECUTION

Exhibit	Witness 	Description of evidence	
3 (a)		Record of Interview of Lucas Yovura, Pidgin – denied involvement – remained silent. (6 May 2009)	
3 (b)		Record of interview of Lucas Yovura, English – denied involvement – remained silent. (6 May 2009)	
	State Witness 1.Peter Tupaia	Detective Constable - lead man in collecting and collating all evidence involving the accused relating to the Papindo Trading arm robbery - accused was on the run after the robbery- 13 May 2008 he voluntarily surrendered to Reserve Constable Stanley Samban who handed him over to CID at Wewak Police Station - Peter Tupaia took down confessional statement – accused- cautioned and freely gave his confessional statement – later released to his guarantor Stanley Samban on the strength of his statement with reporting conditions - 26 May 2008 accused taken to the police station and later to the district court on the same day where he read the statement, agreed and signed it before a commissioner for oaths - accused went into hiding - 3 July 2009 he was arrested – Accused confessional statement of 13 May 2008 obtained by typing it in English on paper in the presence of Senior Constable Nelson Edes and Senior Sgt Patrick Wales. 	
5	State Witness 2 Stenet Wohuienen	Gave oral evidence to introduce his statement, now in possession of defence and to be cross examined- says he was not part of that investigation team – deny being present when confession was obtained – deny seeing Patrick Wales on 13 May 2008- Deny seeing Nelson Edes that day – Saw Peter Tupaia & Lawrence Tapis on that – could not recall making a statement that day but when his affidavit deposed on 21/4/2009 was shown to him he recalled.- Identified his signature – said statement was confusing – Admitted assaulting the accused at police station with a gun – investigation in two parts and therefore cannot recall.	
	Nelson Edes 	Corroborator - denied allegations of treats, intimidation, provocation, and assault by him or any other persons during the conduct of interviews and obtaining confessional statement – and all allegations levelled at the state by the accused.

Outline 

The exhibits 

17. Column 1 of the table gives the exhibit number, column 2 describes each witness and column 3 summarises their evidence. 

TABLE 1 – SUMMARY OF EXHIBITS & EVIDENCE – DEFENCE

Exhibit	Witness 	Description of evidence	
A	Accused Lucas Yovura	Affidavit 10 March 2009 –Confessional statement contained therein dated 13 May 2008 – Lawrence Tupaia identified him to Sergeant Patrick Wales, Nelson Edes and OIC CID Joe Sale-things turned completely different for me – I was harassed – beaten up badly – confessional statement obtained- in fear I cooperated with police – Lawrence Tupaia did nothing to rescue me.
	
	Accused Lucas Yovura	As above...	
B	Stenet Wohuienen	CID Investigator – 13 May 2008 accused brought into CID office by Task Force members for questioning between 4 pm – 5 pm – accused known to him as they come from the same area – admit questioning the accused – admit using reasonable force by assaulting the suspect on his knees using butt of homemade gun – attempt to get him to confess on series of armed robberies alleged to have been committed by the accused including the Papindo robbery – Other officers present at the time include Nelson Edes,IIU officer Senior Constable Peter Tupaia - OIC CID Joseph Sale and Lawrence Tapis were in their offices – Did not witness others assaulting and the injuries sustained as he had left for his house after that.– whole purpose was to minimize law and order problems as they come from the same area – Statement made on 21 April 2009. 	
5			

Lucas Yovura

18. On 13 May 2008 he voluntarily fronted up at Wewak police Station at 9 am and Lawrence Tapis identified him to CID officers present including Peter Tupaia, Nelson Edes and Sergeant Stenet Wau to be questioned on the Papindo Trading robbery. When he hesitated to talk Sergeant Stenet assaulted him with a piece of timber which was on the table and hit him on his head, shoulder and legs. He was told to listen and cooperate. Nelson Ides threatened him with more pain if he refused to cooperate. They all gathered around whilst Stent assaulted him and he gave his first statement but they were not satisfied so the assaulted him again. They moved him upstairs to CID office for further interrogation and promised his release if he became a state witness. He cooperated with the police and gave his statement in pidgin and it was written down in English due to injuries and assault earlier received. He was then told to go and become a state witness and release around 12 pm. He was told to obey, understand and sign statement and said that's how his confessional statement was obtained. 

19.	During examination in chief the accused said his statement was not read back to him in Pidgin, instead it was read back to him in English. The witness denied being given his Constitutional rights prior to signing the statement.

Mrs Wendy Yovura

20. The witness accompanied her husband to the police station to see policeman Stanley at 9 am and he saw him again at midnight after being released. She said she noticed bruises and cuts on left eye brow and lips were broke and bleeding. He was refused food from the wife earlier and they returned home at 2 am in the morning. Her husband did not tell her how he got the bruises and where he got them from. Despite the injuries the accused left for Yangoru the next day. His injuries were treated by a nursing sister living within their community. 

The Laws

21. Section 42 of Constitution is stated in these terms:

Section 42 (2) Constitution...

(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.

22. Section 28 of Evidence Act Ch. No 49 is stated in these terms:

A confession that is tendered in evidence in any criminal proceeding 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.

Application

23. The standard of proof of voluntariness of a confessional statement or admissions is proof beyond reasonable doubt. The onus is on the State to prove that the confession or admission is made voluntarily. See R v.Fari Pako (1962) N 259, R v Amo and Amuna [1963] PNGLR 22 at 23, R v Wendo [1963] PNGLR] 217 at 228 and The State v Allan Woila [1978] PNGLR 99.

24. I make observation at the outset that the "confessional statement" said to be voluntarily made and obtained from the accused on 13 May 2008 was introduced into court in the form of an affidavit dated 10 March 2009 more than 10 months after it was obtained. Of interest to this court is that it was obtained approximately 9 weeks from the time the robbery was commissioned on 23 February 2008. This was followed by two additional affidavits dated 17 April and 6 May 2009 respectively, culminating into a full Record of Interview obtained on 6 May 2009. No explanations were forthcoming from the State why the lengthy delay and why the need for the two additional affidavits when there was voluntary confession statement in their possession already? 

25.	If indeed the said confessional statement was obtained from the accused voluntarily, as maintained by the State, then there was no need for further investigations as all would be suspects and perpetrators were known to police. The investigation as to "who done it "in my view was as good as closed and a "done deal". Round up all these persons named get their statements and have them charged accordingly. As can be seen from evidence and events that that was not the case. More questions than answers seem to be the order of the day, inviting more room for speculation and suspicion. Again no explanation from the State to clarify this questionable situation.

26.	Secondly I ask myself this question, what has become of the mandatory inclusion of caution under Section 42 (2) requirements of the Constitution and its inclusion in police statements, properly attested by its authors for use in courts? Furthermore what has become of the now relaxed traditional certification and attestation of police statements by its authors? What about the often quoted magic word of "contemporaneous statements and relevance"? As can be seen from the confessional statement none of those mandatory requirements were contained therein, especially one in which substantial amounts of money and property were stolen, some police officers implicated etc.

27.	The testimonies of lead police officers in the investigation of the robbery rebutting police assault and breaches of the Constitution and The Evidence Act, in my view were inconsistent and very shallow. I draw inference from Sgt Stenet's statement in which he admitted to assaulting the accused but denied same during his oral presentation and examination. He blamed his lapse of memory on two separate investigations which were conducted on the robbery. The Investigator and corroborator testified of administering the caution and denied obtaining the confession by threats and promises and I accepted them as they were as no evidence of substance were put before the court. Two other police officers named by the accused were not called to rebut accused allegations of breaches and involuntariness in obtaining the confessional statement. Again no reasons were forthcoming from the State on their absence.

28.	Thirdly there was neither any reference nor mention or confirmation of the contents of his confessional statement in his record of interview. 

29.	Fourthly during the cause of pre trailing, trail and progression into voir dire, the accused through his lawyer gave notice of objection to the State. I am of the view that ample notice was given to the State detailing the nature of objections hence any failure on the part of the State to successfully rebut and explain away may prove fatal as has happened in this case. I am not satisfied with State explanation that the accused notice were drawn up from instructions and should be disregarded.

30.	Fifthly the absence of what I consider to be the most crucial piece of evidence in either the State or Court's depositions forming part and partial of the whole investigation appears to have mysteriously disappeared but remained intact in the accused deposition. I am referring to the affidavit of Sergeant Stenet in which he admitted assaulting the accused by using reasonable force whatever that reasonable force meant was not made clear to court. However I gathered from his statement that the use of a butt of a homemade gun to hit the accused on both his knees in order to obtain a confession was proper and warranted as they both come from the same village and he wanted to minimize the escalating law and order problem in the province at the time. Be that as it may and however sincere his attempts to curtail the law and order situation, there is a saying that "one cannot break the law to make good the same law". Furthermore the rule of law and the supremacy of the Constitution binds all people including wrongdoers until proven guilty by courts of law. Unfortunately adverse inferences are easily drawn where there are instances of abuse, threats, and involuntariness by police during interrogations and are usually difficult to explain away. I can safely infer that the accused was assaulted by police officers during the interrogation. 

31.	The end result which is evident from what I have alluded to above that there were improprieties in the course of the investigations into the armed robbery of Papindo Trading Wewak. In that well-known case of McDermott v R (1948) 76 C.L.R. 501 at page 511 Dixon, J; said if an accused speaks because he was overborne, his confessional statement cannot be received into evidence and it does not matter by whatever means he was overborne. If the statement has been obtained as the result of duress, intimidation, persistent importunity, sustained, undue insistent or pressure, it cannot be voluntary. Bear in mind the Constitutional guarantee of the protection of law under Sections 37 and 42 of the Constitution, the common law practice adopted by Sch.2.2 of the Constitution at Independence Day on the subject. (See also cases of The State v John Ave & 2 Others (2004) N2622, The State v Raphael Walimini (2004) N2661 and The State v Joanes Mesak (2005) N2853).

32.	All in all, I am not satisfied that the accused's statement was voluntarily obtained. I am fully conscious of the fact that my disapproval of conduct and consequent rejection of evidence should outweigh the public interest in subjecting all relevant evidence before the court when guilt or innocence of a serious crime is being considered. Unfortunately this is one of those situations where the strict compliance with the rule of law and the supremacy of our Constitution together with the Evidence Act must reign high above all else. After the benefit of which I have had of the most helpful arguments I have come to the conclusion that I should exercise my discretion in favour of the accused and exclude his statement of 10 March 2009 inclusive of the confessional statement contained therein dated 13 May 2008 and I rule accordingly.

Addendum: After this ruling the State closed its case and defence submitted a no case submission to answer, which was upheld and the accused was acquitted and discharged.

__________________________________________________________

Public Prosecutor: Lawyers for the State. 
Public Solicitor: Lawyers for the Accused.