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State v Tiran [2018] PGNC 217; N7328 (27 June 2018)

N7328

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 251 of 2017

THE STATE

V

TRACEY TIRAN

Waigani: Miviri AJ
2018 : 26^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Conspiracy to defraud- Misappropriation – record of interview – admissibility of – voir dire – discretion of Court – State discharged proof – document lawfully obtained – record of interview admitted.

Facts
Accused objected to tender of record of interview contending that she was overborne and not accorded her rights under section 42 (2) Constitution and therefore should not be admitted into evidence.

Held
Motion refused
Record of interview lawfully obtained
Admitted into evidence.

Cases Cited:
The State v Balana [2007] PGNC 12; CR 522 of 2003
The State v Gasika [1983] PNGLR 58
The State v Maino [1977] PNGLR 216

Counsel:

T. McPhee, for the State
D. Wapu, for the Defendant

RULING

27^th June, 2018

1. MIVIRI AJ: This is the ruling on the voir dire conducted into the admissibility of the record of interview of the accused with Senior Constable Ukis Kibale on the 30^th August 2012.
   

Voir Dire Record of Interview

2. She challenges by a notice of voir dire dated the 15^th May 2018 that she was overborne by the arresting officer Ubis Kibale and did not submit to the answers in the record of interview. She alleges that she was not cautioned at the outset of the record of interview nor was she accorded her section 42 (2) rights. She was not allowed her lawyer despite asking for one to the Investigator prior to the commencement of the record of interview. She said she was informed of her rights at the closure of the record of interview but not when it initially started. She argues this breaches voluntariness of the record of interview and the content cannot be admitted against her because of this.
   

Issue

3. Whether or not the record of interview was voluntarily conducted in the free exercise of the will to admit?
   
4. Whether she was accorded her rights under section 42 (2) of the Constitution?
   

State evidence

5. Evidence for the state comprised Ukies Kibale the arresting officer giving evidence that the accused elected to speak in English she understood it well and was conversant with it. He introduced himself together with his corroborator. Then he informed accused as to why she was being interviewed. He confirmed the record of interview to be a true account of what transpired between him and the accused when he asked her. She was informed of her right to remain silent and accorded her rights under section 42 (2) of the Constitution, to which she elected not to see anyone. And all that occurred in the course was recorded in the record of interview. At the end she signed it acknowledging it as the truth. It is the truth and ought to be admitted as having complied with the law.
   

Accused in defence voir dire

6. Accused gave evidence in defence on oath in the voir dire that she was told in a text message to come to the Police Fraud Squad office where she was told to bring herself and documents from National Planning office to help herself. The informant had told her superior to speak to her he had delivered a summons that he wanted to speak to her on the 30^th August 2012. She asked to bring a friend a witness or a lawyer but was advised by the informant Ukis Kibale that all that was needed was her attendance with documents from National Planning. That any explanation she had was to be put to court later. Ukis Kibale insisted that she answer yes and no to the questions that he asked. He did not allow her to speak all she wanted to say he cut off what she was saying. When the corroborating officer tried to help her he shut him up so he was not in the room when the interview was conducted as he would come in and out. He also told her that she would not leave the room until she had signed the record of interview. And that is what happened after she signed the record of interview she was allowed out of the record of interview taken to Boroko police Station where she was locked up at 9.30pm and then released at 11.30pm on bail of K2000 from which she now appears in court. She only spent two hours in custody since. And has been out on bail up to now.
   

Submission by counsel

7. Defence counsel has submitted that accused was not accorded section 42 (2) of her rights under the Constitution and she was told of it at the end of the record of interview and therefore it could not be relied on as evidence in the case against her. He relies on the evidence of the accused in defence.
   
8. Prosecution has submitted that the record is the record of interview before the court which is the truth. In it there is no unfairness to the accused. There is compliance with the law. The document be admitted into evidence.
   

Credibility of witnesses

9. The state witness Ukis Kibale has been cross examined by defence counsel he has given evidence in a forthright manner and is unshaken in his evidence. He gave evidence that he follows a format in the interview. And he says this is starting with the introductory part of the record of interview which includes what language the accused prefers, here English was preferred. That it was the language accused spoke well and understood. Then he introduced himself and the other policeman involved here his corroborating officer. And the reason for the accused being in the interview with them. In this instance he informed that K 500,000 was released by the National Government to accused to her company Sits Up Services Limited for a coconut project in Manus but funds were misappropriated. He got all the information as recorded in the record of interview which was acknowledged by the accused at the end of the record of interview where she signed it in the middle of it. And what is contained in that document is what he got as a result. It is self explained.
   
10. His evidence is logical and makes sense. Choice of Language is important in the understanding between interviewer and accused. Here English is common between accused and the witness. I observed accused she is fluent in English. She is educated to grade 10 and technical college. She gave her evidence in English and appeared very fluent in that language in court. She did not demonstrate any struggle in giving evidence in that language. I determine that she was able to understand what was the interview and subject of concern in it as a result of being very well acquainted with English. Do you speak and read English well was affirmed by the accused acknowledging her acquiescence. Then she was told the reason for the interview and cautioned against that she was not obliged to say anything but whatever she said was to be taken down and used as evidence against her in court. Then she was accorded her Section 42 (2) rights under the Constitution to get a lawyer, a friend or family member or anyone of her choice and to have such a person see her where she was. She was asked if she understood and to which she affirmed and elected not to see a person stating that she did not want to see anyone at that point. Then she gave all the answers that he recorded as in the interview.
    
11. In my view Ukis Kibale was fair to the accused in the way that he conducted the record of interview. Using a language understood by the accused meant she knew why she was in the interview. She knew identity of the interviewer and others in it. And why she was being interviewed and what her obligations were and where she was in law in relation to the interview. Having understood it from the language used she was able to partake in it in fairness and voluntarily. She was not overborne as she understood well. The record of interview did not contain any yes or no only answers at all. And there were not a lot of “I don’t recall” answers in the record of interview. There were detailed answers in the record of interview as opposed. And in cross examination she affirmed that all questions were asked when state Prosecutor went through the record of interview piecemeal on each of the questions that were asked. She acknowledged that they were all asked. And she ascertained that they were the truth and so signed the record of interview that is why she read it after which she signed it.
    
12. She gave evidence of various sums of money that she withdrew adding to the sum of K 365,000. 70 which is a significant sum of money. This information is private to her and only she alone knew it. It could not have come into the record of interview without voluntariness on her part. It is not one of instance in the record of interview but a whole scheme in the record of interview. The arresting officer could not have composed all in the way they are answered and set out. It is not a yes or no answer that would have got these details as they are in the record of interview. Nor could it be the subject of “I don’t recall” answer. It shows her level of understanding in English. It shows that she volunteered that information knowing full well its effects in the case against her. Further she was charged at 9.30 pm and out on bail of K2000.00 at 11.30 pm since up to the date of trial. It showed that she was fairly treated and that she was not subjected to being overborne in her evidence. She voluntarily gave her evidence in the record of interview to Ukis Kibale the arresting officer in the record of interview. She was in custody for two hours only for an allegation of K500, 000. From which she admitted to spending K300, 000.00 plus on various expenses personal to her not to the project for which she made submissions to the National Planning office. She was a truthful volunteer of that evidence and has come to regret after 6 years since the 30^th August 2012 now realizing the impact of that evidence against her. The record of interview is diligent and easily understood and is not prejudicial to her in the way it was conducted by the arresting officer. It has not been shown that she was unfairly treated or that her mind was overborne in the record of interview at all. She was a calculated witness in the box unimpressive, gave evidence which did not par with common sense and logic particulars set out above. Her evidence was uncorroborated but she agreed and corroborated the account given by Ukis Kibale verifying the truth that he gave instances which are set out above. She was facing a very serious criminal charge with evidence in the record of interview mounted against her and realization set in of that fact after 6 years now to sway her to act as she did here come up with allegation not backed by any evidence to dismantle it. She did so with vigour corroborating Ukis Kibale’s account. She is a witness who has lied under oath and will not be believed and the excerpts are clear instances set out above.
    

Findings of Fact

13. Consequently I find as a fact that the record of interview was fairly and voluntarily conducted by Ukis Kibale. And the accused freely exercised free will to participate in it. She was under no threat or that her mind was overborne. There is no evidence of her mind being overborne before me shown to the balance required. I find as a fact that she knew what the record of interview was about. She understood because she was fluent with the language that was used. She made a free choice to exercise her rights in it. These included that she understood her rights under section 42 (2) which I find as a fact were given at the outset of the record of interview immediately after she was cautioned that she was not obliged to speak but that if she did the evidence would be used against her in a court of law. I find as a fact that she exercised a free will voluntarily to elect not to see anyone there and then. That this was a free exercise voluntarily made. I find as a fact that she was accorded her rights and did exercise a free and fair choice not to see anyone including a lawyer there and then. I further find that she made a free and fair admission voluntarily to the questions that were fairly posed and asked by the investigator interviewer Ukis Kibale. Her mind was not overborne that she made admissions which were of free exercise of will. I find no evidence of instances of threats or intimidation in the evidence produced before me.
    

Law

14. Both counsel have cited State v Balana [2007] PGNC 12; CR 522 of 2003 (21 March 2007) where the confession and the record of interview were rejected because accused was beaten and that he was not allowed to exercise his rights under section 42 (2). He was beaten up before the confession. Two months after which record of interview was obtained. He was given no real opportunity to see his sister. This is the law set out in the Supreme Court case of Uda Liki Gasika v The State [1983] PNGLR 58 (15 March 1983) where the court said on a voir dire to determine a confession is admissible the matters for determination are; (a) the question of its voluntariness; and (b) the question whether in all the circumstances of the case it would be unfair to admit the material against the accused. A trial Judge has, apart from the particular discretion to exclude evidence of a confessional statement, in general or residual discretion to exclude evidence on the ground that its prejudicial effects outweigh its probative value. Whether a trial Judge reads the confessional material on the voir dire or not is a matter which goes to the exercise of this general or residual discretion.
    
15. The circumstances here show voluntariness and do not show that the prejudicial effects outweigh the probative value. The latter is evident that the probative value outweighs. There are no prejudicial effects demonstrated or shown here so as to opt the discretion to exclude the record of interview: Maino, The State v [1977] PNGLR 216.
    
16. The Accused exercised her right to silence because she was aware of it when told by the arresting officer Ukis Kibale at the outset of the record of interview. That is evident in the record of interview excerpts of it where she has remained silent and declined to answer questions. And also she has exercised her right under section 42 (2) by electing not to see anyone at the outset of the record of interview. These have been illuminated in cross examination by counsel for the state beyond all reasonable doubt. Which have been conceded to by the accused corroborating the evidence of Ukis Kibale. In my view the record of interview is not obtained by being overborne nor by breach of section 42 (2) of the Constitution, or involuntariness on the part of the accused, but by free fair and voluntary exercise of a free will to give evidence now regretted hence the attempt to bring an allegation unfounded by evidence and in law.
    
17. Accordingly in the exercise of my discretion given the record of interview of the accused with police informant Ukis Kibale dated the 30^th August 2012 is admitted into evidence against the accused in this matter.
    

Ordered Accordingly

__________________________________________________________________Public Prosecutor : Lawyer for the State

Punau & Co Lawyers : Lawyer for the Defendant