N6081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 36 OF 2012

BETWEEN:

THE STATE

AND:

WILSON MOSES
Accused

Kokopo: Higgins, J.
2015: 10th August,
17th, 21st & 22nd September

EVIDENCE – Confessional Statement – record of interview – signature allegedly procured by force – onus of proof – State to prove absence of improper inducements – need for independent corroboration of police interviews – evidence rejected

Cases Cited:
Papua New Guinea Cases

Special Reference [1995] PGSC3
Rose v. Devete (A/Solicitor General) [2007] PGNC 146
State v. Minmin [2005] PGNC 63
Constitutional Reference No.1 of 1977 [1977] PNGLR 362
State v. Balana [2007] PGNC 12; CR 522 of 2003 (21 March 2007) 
State v. Dakoa [2009] PGNC 8
State v. Yovure [2013] PGNC 73
State v. Police [2011] PGNC 36

Overseas Cases

Ryan v. Registrar of Motor Vehicles (1997) 129 ACTR 4
Eastman v. DPP [no.2] [2014] ACTSCFC 2
Nudd v. R (2006) 225 ALR 161 (HCA)
R v. Mills [2011] ACTSC 109
R v. McKinney; R v. Judge (1991) 171 CLR 468
R v. Hinton [1999] ACTSC 20

Jones v. Dunkel (1959) 101 CLR 298
Dyers v. R (2002) 210 CLR 285
Petty & Maiden v. R (1991) 173 CLR 95

Counsel:

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

DECISION
22nd September, 2015

1.	HIGGINS, J: The State brings a charge of manslaughter against the accused by way of an indictment dated 13 August 2013, alleging that on the 17th day of October 2011, at Marau Logging Camp Pomio, in PNG, he unlawfully killed Mark Lute.

2.	The brief facts alleged are that the deceased was suspected of stealing money from a co-accused, Ben Morris. This accused and Ben Morris armed themselves with bush knives and went to confront the deceased. This accused asked him where the stolen money was. Ben Morris then cut the deceased with his bush knife on the right leg so forcefully as almost to sever it. The deceased thereafter bled to death. Ben Morris pleaded guilty to manslaughter and was sentenced to 17 years of imprisonment (less time served), by Lenalia J., on 21 August 2013. This accused has pleaded not guilty.

3.	Subsequently, the case against this accused continued but has not been heard until now. This delay is a cause for concern. Whether expressly stated or not the right to trial without unreasonable delay is a right that is part of the underlying law going back to Magna Carta 1215. It is undoubtedly engaged by s.37(1) of the Constitution:

"Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available especially to persons in custody or charged with offences."

(see Special Reference [1995] PGSC3); Rose v. Devete (A/Solicitor General) [2007] PGNC 146 [35] per Sakora J.

"By Magna Carta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice."

4.	In Ryan v. Registrar of Motor Vehicles (1997) 129 ACTR 4, I noted that Article 29 of Magna Carta, even before the Human Rights Act 2004 (ACT) was part of the law of the Australian Capital Territory. It provides (as translated):

"No freeman shall be taken or imprisoned, or disseized of his freehold, liberties or free customs, or be outlawed or exiled or in any otherwise destroyed, nor will we pass upon him or condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, and we will not deny or defer to any man, either justice or right".

5.	A failure of due process whether because of delay or otherwise may well lead to the quashing of a conviction – see Eastman v. DPP [No.2] [2014] ACTSCFC 2 per Rares, Wigney JJ, Cowdroy AJ – see also Nudd v. R (2006) 225 ALR 161 (HCA) - or the permanent stay of a prosecution. See R v. Mills [2011] ACTSC 109. It was pointed out by me in that case, that unreasonable delay in bringing a matter on for trial is also a breach of human rights law which the Constitution of this nation seeks to embrace.

6.	That said, the fact that a breach of human rights has occurred does not entail a particular remedy such as a permanent stay of proceedings, rather the remedy will be one designed to be the most just response. It may be an expedited hearing, it may be that certain evidence is deemed to have been unfairly obtained and not to be relied upon, it may be damages (see ss.57 & 58 Constitution). It may be a permanent stay. In the current case, the seriousness of the allegation is such as to render a stay or discharge currently inappropriate, although, given the accused has been in custody without conviction for nearly 4 years, the time must be approaching when justice demands that he be either released or tried without further delay.

7.	On 9 April 2015, the Public Solicitor filed Notice of Alibi and Notice of Voir Dire. The latter seeks a ruling that a "Confessional Statement" dated 19 October 2011 and a "Record of Interview" dated 26 October 2011 be ruled inadmissible.

8.	The grounds for rejection of those documents which purportedly acknowledge the role of the accused in the death of Mark Lute, though signed by the accused acknowledging their correctness, is that Senior Constable Martin Mamana assaulted him in order to get him to sign the Confessional Statement. It is further alleged that when the record of interview was conducted by Senior Constable Joe Bimaru at Kokopo Police Station, Senior Constable Mamana was present. The accused, in fear of further assault, agreed to verify his 'Confessional Statement'.

9.	The admissibility of any statement making admissions as to matters in issue depends on it being voluntary and upon the absence of unlawful or unfair means effectively depriving the accused of his free choice to speak or not in answer to police questions.

10.	The legislative foundations for the requirements of voluntariness and fairness are built on the common law. For this jurisdiction, s.42(2) of the Constitution prescribes the rights of a person arrested or detained. Further, s.28 of the Evidence Act 1975 in mandatory terms provides:

"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."

11.	As the High Court of Australia noted in R v. McKinney; R v. Judge (1991) 171 CLR 468 (per Mason CJ, Deane, Gaudron, McHugh JJ) at [19]:

"The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced. A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end."

12.	Their Honours go on to point out that, the accused, being in police custody, is at a forensic disadvantage in marshalling evidence to support such a contention. Further, the police giving evidence will almost invariably be practised witnesses as opposed to the accused person who usually is not. Nor is it appropriate or necessary to decide that the police officers were in fact guilty of impropriety. The accused does not have to prove that fact nor is it an hypothesis that must be rejected in the interests of upholding police reputations or authority. That there is reasonable doubt about whether impropriety was used to cause a confessional statement to be given does not carry any such imputation. It suffices to enliven the Court's discretion or, it may be, duty to exclude evidence of the confessional statements.

13.	In that case, the Court, at [23] pointed to the inherent unfairness of the tendering of a signed but uncorroborated record of interview as evidence of guilt. Their Honours held that the unfairness lies, not in any assumption that police have fabricated the evidence but:

"… in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement."

14.	That unfairness can be eliminated by the presence of an independent witness eg. a person who is not a police officer but a relative, friend, or lawyer of the accused. It can also be eliminated by a recording by video and/or audio of the interview. Such a practice would eliminate many challenges to confessional statements and there are many such challenges. I will refer to but a few of them. There are commonly two issues. First, did the accused make the admissions? and, second, where the record of the admissions is signed by the accused, was the signature attached voluntarily?

15.	In State v. Minmin [2005] PGNC 63, the accused against whom an alleged confessional statement was tendered, complained of being assaulted by police whilst being taken to the police station at Kokopo. Whilst told of his constitutional rights under s.42(a), (b) & (c) of the Constitution, he was not given the benefit thereof. It was clearly suspicious that, despite asking to see a lawyer, the accused then chose voluntarily to make a confessional statement without being afforded the opportunity to talk to a lawyer.

16.	This accused gave evidence that he made the admissions tendered against him out of fear of further beatings.

17.	Lenalia J. noted that an accused, before being questioned about an alleged offence must be cautioned in accordance with the Judges Rules and be informed of his constitutional rights. A confessional statement not proved to have been voluntarily made is inadmissible. If unfairly obtained, it may be rejected. Voluntariness must be proved to the criminal standard of proof. A confessional statement obtained unfairly may be rejected even if voluntarily made (reference made to Constitutional Reference No.1 of 1977 [1977] PNGLR 362). His Honour expressed doubt as to the truthfulness of police witnesses who denied the allegation of brutality and was satisfied from the terms of the record of interview that the accused was given no opportunity to contact the Public Solicitor as he had wished. The tender of the confessional statement and record of interview thereafter was rejected.

18.	Next, I refer to State v. Balana [2007] PGNC 12 per Lay J. Also at Kokopo, the accused in this case alleged a bashing by police. The caution was administered but not understood. I would comment that it would be good practice to ask an accused to state in his own words what he or she understood the caution given to him or her to mean. That view was also expressed by Lay J. at [12]. The interview was suspended to enable the accused to see a relative. After 2 months, no effort had been made to effect that request. The accused was in the interim held at Kerevat CIS though not charged and so not remanded in custody. That was clearly unlawful. The accused was then interviewed. A 'confessional statement' had allegedly been obtained before the record of interview had been commenced. The record of interview was suspended as noted above. After it was resumed, the accused responded to questions but some answers were not consistent with his alleged confessional statement. He was then confronted by that confessional statement, apparently to encourage consistency.

19.	Lay J. found voluntariness was not proved and the presence of unfairness in the taking of the statement in any event. Its tender and that of the record of interview was rejected. His Honour deprecated the practice of obtaining a 'confessional statement' and then a record of interview, where the former is not attended by the warnings required of a record of interview.

20.	A further example is to be found in State v. Dakoa [2009] PGNC 8 (per Cannings J.). Despite the admonition given by Lay J. in State v. Balana (supra), police obtained a "Confessional Statement" and then conducted a record of interview. The accused alleged he was assaulted and shouted at to induce him to sign the confessional statement and record of interview.

21.	I note his Honour's statement of the rule as to proof of voluntariness at [15].

"The rule operates this way. First, the accused must adduce evidence that the balance of probabilities supports the allegation of involuntariness. If that 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."

22.	That is correct. I would, however, restate it in terms that, similar to evidence of self-defence, the onus on the accused is merely to adduce or point to evidence which, if accepted, would rationally support the contention of self-defence or involuntariness as the case may be. The onus is then upon the State to exclude that inference beyond reasonable doubt. In truth, it is not so much a shift of any onus of proof but the activation of an issue as to whether the State has discharged the onus of proof resting upon it.

23.	In this case, his Honour was satisfied beyond reasonable doubt that no assault took place. Hence, there was no ground for rejecting the confessional statement on the basis of involuntariness.

24.	Nevertheless, his Honour stated, correctly in my respectful opinion, that the right to full protection of the law, mandated by s.37(1) of the Constitution, includes the right to a fair trial. I would add to that a fair trial is one that is undertaken without unreasonable delay. It further includes the presumption of innocence continuing unless and until rebutted by the State beyond reasonable doubt. That presumption also requires the Court to draw only inferences favourable to an accused where such inferences are rationally open upon the evidence.

25.	The unfairness objection, his Honour noted, stands in a different position to the question of voluntariness. I pause to note that involuntariness may arise from conduct towards an accused by a person not in authority (see eg R v. Hinton [1999] ACTSC 20 (threats by Rebels Motorcycle gang causing accused to give false statement to police. False statement tendered as proof of participation by the accused in conspiracy to pervert the course of justice – tender rejected).

26.	The accused, it was conceded, had not been advised of his s.42(2) rights as soon as practicable after his arrest or detention. Indeed, that was not done until 13 days later. He had not been brought before a District Court as soon as practicable but held in unlawful detention.

27.	The vice in the practice of obtaining a 'confessional statement', signed or otherwise, followed by a formal record of interview, even if the latter is fairly conducted, had been highlighted by Lay J. in State v. Balana (supra) in the following terms:

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

28.	Given the concatenation of improprieties, Cannings J. concluded that it would be unfair to admit evidence of either document.

29.	Again, in the more recent case of State v. Yovure [2013] PGNC 73, the accused complained of both assault and promises of immunity as a State witness if he confessed. The accused's 'confessional statement' was given, police said, in Pidgin but typed down directly in English.

30.	As Geita AJ. noted, the 'confessional statement' did not recite the mandatory requirements of s.42(2) of the Constitution. One police witness was inconsistent as to the assault, two officers apparently present were not called by the State. The statements were refused admission into evidence.

31.	Turning to the present case, I note firstly that witness statements gathered by police on 18 October 2011 contained all details recited in the confessional statement and the record of interview, including the use by the accused of the blunt side of a bush knife to strike the deceased. (see Statements of Bernard Walar & Markus Mark)

32.	The "Confessional Statement" is so headed on each of its seven pages. It allegedly took about 1 hour and 2 minutes to write. It shows no sign of any pause or correction with a few very minor exceptions. It was obtained in the presence of Senior Constable Martin Mamana and Constable Simon Korae.

33.	Of the three, only Detective Senior Constable Poren Yagiri (as he then was. He is no longer a police officer.) gave evidence before me as to the obtaining of the 'confessional statement'. Senior Constable Martin Mamana, it was agreed, was now deceased. There was no explanation for the absence of Constable Simon Korae. Mr. Rangan, for the State, acknowledged that this circumstance must weaken the State's case. (Jones v. Dunkel (1959) 101 CLR 298 c.f. Dyers v. R (2002) 210 CLR 285) The subsequent record of interview was taken by Senior Constable Joe Bimaru at Kokopo Police Station but his corroborating officer was Senior Constable Martin Mamana, the very officer the accused, in his Voir Dire Notice, had accused of assaulting him to make him sign the "confessional statement". Mr. Yagiri conceded in evidence that this was bad practice. It was a circumstance upon which the accused was able to rely to support his contention that the assault which caused him to sign the confessional statement remained a real threat in his mind when he came to sign the record of interview. It very much lessens the force of a contention that the accused failed to complain to Senior Constable Bimaru of Senior Constable Martin Mamana's previous assault upon him. In any event, it would not be likely that a person held in police custody, without access to a trusted friend or relative or lawyer would complain of one police officer's conduct to another police officer, particularly one of equivalent rank.

34.	Given the decision of State v. Dakoa (supra) and those preceding it, one might have expected that by October 2011, police would have reformed their procedures so as better to respect the civil rights of suspects and, incidentally, to improve their chances of securing a conviction. However, the 'confessional statement' in this case contained no reference to the accused being informed of his constitutional rights.

35.	Mr. Poren Yagiri, when called by the State, deposed that on 19 October 2011, he was informed that 2 suspects in the death of Mark Lute had surrendered themselves to police.

36.	He proceeded to Palmalmal Rural Police Station with his colleagues, Senior Constable Martin Mamana and Constable Simon Korae. They interviewed both of the suspects, Ben Morris and this accused. As to this accused, the statement marked ex1 was written down by Mr. Yagiri and signed by all three officers and this accused.

37.	Mr. Yagiri denied any use of force or any other inducement being proffered to the accused to make or sign the confessional statement. Indeed, he went so far as to deny that there was any conversation at all with the accused about the matter until the 'confessional statement' was commenced and then only as recorded. He was clear that the statement commenced with him writing 'confessional statement' at the top of the first page before any such conversation occurred. Indeed, though the expression does not appear in the Pidgin version, the translation that Mr. Yagiri wrote in type translates "stori bilong yu" as "your confessional statement" in both the preamble as to preferred language and Q2 as to witnesses present.

38.	Mr. Yagiri could not satisfactorily explain how, if there had been no intimation by the accused that he was going to make admissions, he could assume that the statement would be 'confessional' and write that as the heading of the Statement. That he did so would support an inference that he knew the suspect would confess because he had already been induced to do so.

39.	The confessional statement does not contained any recitation of the allegations against the accused. There was no warning given that he was a suspect. The closest to it is:

"Q4 Inap long yu helpim polis long painim out indai blong "Mark Lute"

 ( Interpreted as -

 "Would you help Police to find out about the death of Mark Lute")

40.	Senior Constable Joe Bimaru took the record of interview on 26 October 2011, a week later. It properly recites both a caution and advice as to constitutional rights. In it the accused confirmed that he used the back of the knife to strike the victim's head after the co-accused had chopped his right leg. He cut the deceased three times, he said. That was a repetition of the confessional statement, not something new.

41.	The only reference to the confessional statement was at Q30:

"Dispela confessional statement yu bin givim pinis long Palmalmal Polis Stesin em trupela stori tasol

 (Statement shown to suspect)

Ans "yes em i tru"

(Translated as:

 "This Confessional Statement you have given to policeman at Palmalmal Police Station, are they all true and correct

Ans "yes, that's true")

42.	Senior Constable Bimaru also agreed that it would have been better practice to have had a different corroborator, one not connected with the investigation.

43.	The accused, Wilson Moses, gave evidence. He said he told police at Palmalmal Station that he knew nothing about the death of Mark Lute. Then Martin Mamana struck him hard twice on the left forearm between the elbow and the wrist with a fan belt. He was told to make it easy for himself and the Court.

44.	The statement was written out for him and he signed it because he was afraid of further assaults.

45.	He agreed with Mr. Rangan, for the State, that he first complained of this assault in April this year. This delay and lack of seizure of earlier opportunities to complain of ill-treatment, of course, supported an inference, Mr. Rangan pointed out, of recent invention of this allegation. (But see Petty & Maiden v. R (1991) 173 CLR 95 – such an inference should not be drawn. It contradicts the right to silence of an accused. No inference of guilt can be drawn from the exercise of that right.) 

46.	Certainly, the accused was an unpersuasive witness. I am not satisfied by his evidence that he was mistreated as he alleges. However, that is not the test. The test is whether, the issue having being raised by his assertions, supported by his sworn evidence, I am satisfied beyond reasonable doubt that improper inducement to sign the documents was not given. 

47.	I have to say that but for the unsatisfactory evidence of Mr. Yagiri and the unexplained non-appearance of Constable Simon Korae, I might well have been so satisfied. Those circumstances however leave me unpersuaded that the prosecution has established the voluntariness of these "confessional" documents beyond reasonable doubt.

48.	I would add that the very form of the "confessional statement" irrespective of whether it flowed from the desire of an accused, communicated subliminally to investigators that he would confess, lends support to a reasonable doubt about its voluntariness.

49.	If the accused was so filled with remorse as to wish to confess, police surely could have waited until a record of interview could be taken in the presence of an independent witness or otherwise independently recorded.

50. It would be prudent for police to note also the comment by Sawong J in State v. Police [2011] PGNC 36 that it is unsafe to convict solely on the evidence of a disputed uncorroborated confessional statement.

51.	It is my ruling that each of Ex1 and 3 is inadmissible against this accused.

________________________________________________________________
The Public Prosecutor: Lawyers for the State 
The Public Solicitor: Lawyers for the Accused