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State v Henry [2019] PGNC 32; N7755 (12 March 2019)

N7755

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1836 OF 2016

THE STATE

V

KEVIN HENRY

Kokopo: Anis J
2019: 11^th & 12^th March

CRIMINAL LAW – Voir Dire – challenge against admission of confessional statement and record of interview on the ground of involuntary admission

Cases Cited

James Paru v. The State (2017) SC1632
State v. Kapris and Ors (2010) N4139

Counsel

Ms J. Batil, for the State
Ms J. Ainui/Mr N. Katosingkalara, for the Accused

RULING ON VOIR DIRE

12^th March, 2019

1. ANIS J: This is my ruling in relation to a voir dire hearing. It was heard yesterday on 11 March 2019. Presentation of submissions was heard this morning at 9:30am. I reserved my ruling to 2pm this afternoon.

2 This is my ruling.

BACKGROUND

3. The accused was indicted on 11 March 2019. He stands charged under section 300(1)(a) of the Criminal Code Act Chapter No. 262, for murder, in relation to the death of his wife. He was arrested on 12 July 2016. He was interviewed by CID officers on 13 July 2016. There, he confessed, and it was recorded as a statement. The officer who had obtained the confessional statement was Constable Polopwei Niopan. Then on 19 July 2016, the accused was interviewed, and a record of interview was compiled.

4. The accused now claims that both these two (2) documents or that his confessions contained in these documents had been involuntarily obtained. He accuses the arresting CID officer Constable Niopan of threatening, intimating and forcing him to make the confessions.

ISSUE

5. The main issue is whether the accused has provided sufficient evidence to raise the question on the grounds of his objections, and if so, whether the prosecution has proven beyond reasonable doubt that the confessional statement and the record of interview had been obtained following due process.

CONFESSION

6. The principles regarding confession are explained in the case law. The Supreme Court in the case of James Paru v. The State (2017) SC1632, stated at paragraph 5, and I quote:

A confession made by an accused must be voluntary in that it is made in the exercise of a free choice to speak or remain silent: McDermott v The King (148) 76 CLR 501 at 511. The confession must be made under circumstances and conditions that are fair and allowed for a free exercise of an accused's mind. The failure to accord the accused his right to see a lawyer or to administer the caution before the confession is made per see are not grounds for rejecting a confession if the confession was made freely. It is not out of the ordinary for an accused person who feels compelled by the dictates of his own conscience about guilt to give the confession at the earliest opportunity to a law officer or policeman, however the confession must not be induced or coerced upon by threats of harm, assault or any other forms of intimidation that would have an overbearing effect on his mind. A confession may be voluntary even if he was not told of his right to remain silent: R v Gitinu Ileandi [1967-68] PNGLR 496; R v Suk Ula [1975] PNGLR 123. Failure to comply with Section 42(2) of the Constitution for that reason alone does not render a confession necessarily inadmissible: Constitutional Reference No. 1 of 1977 [1977] PNGLR 295. In determining the voluntariness of the admission, the trial Judge must advert to these principles in his or her judgement.

7. I adopt these as my own herein.

EVIDENCE

8. The State called one witness Constable Robert Gigi. He was the corroborating officer. Constable Gigi testified only in relation to the record of interview. He confirmed his observation at the material time. He denied that there had been any intimidation by the arresting officer Constable Niopan during the course of the record of interview. He said the record of interview was conducted following due process. He said the accused was afforded his rights under the Constitution. He said the accused was asked and he had had the opportunity to talk to his lawyer from the office of the Public Solicitor. He said Constable Niopan spoke at a low but straight voice and interviewed the accused based on what the accused had confessed to earlier in his confessional statement. When it was put to him by the Court whether he had any knowledge of how the confessional statement came to be, Constable Gigi said no or that he had no knowledge.

9. The accused was called to give evidence. He told the Court that his arrest and interviews were his first. He said he was scared during the whole process. He said Constable Piopan used intimidating tactics to obtain his confessions. He said Constable Niopan had told him that he should make it easy for the Court and admit. He said Constable Niopan had also told him that if he did not confess and tell the story according to what was expected, he would “go up”. When asked what the phrase meant, the accused said “go up to CS” meaning to the Correctional Service. In regard to the record of interview, the accused confirmed the presence of Constable Gigi. He said Constable Piopan conducted the interview. He said Constable Piopan had asked him to repeat what he (accused) had stated earlier in his confessional statement. He said he followed the thinking of Constable Piopan. He said he was scared and that Constable Piopan at times appeared angry and looked threatening.

ANOMALY

10. The glaring issue I had and had raised with counsel for the prosecution during the presentation of submissions hearing is this. The prosecution did not provide any evidence to contest how the confessional statement had been obtained from the accused on 13 July 2016. The arresting officer Constable Piopan did not testify before this Court. All I have is the evidence of the accused explaining how the confession had been obtained on 13 July 2016.

11. Generally, I am satisfied that the accused has provided evidence on the balance of probabilities, that is, in regard to his contest concerning the confessional statement as well as the record of interview. The burden shifts, and in this case, the prosecution is required to disprove the allegations beyond reasonable doubt. See case: State v. Kapris and Ors (2010) N4139. I find that the prosecution has failed in that regard. Firstly, the accused’s testimony on how the confessional statement had been obtained, regardless of its credibility, was uncontested or not challenged by the evidence of the prosecution. Constable Gigi’s evidence was relevant only in regard to the record of interview. And in regard to the Constable’s Gigi’s evidence, I notice something which I think is fundamental. In his testimony to the Court, he said that Constable Piopan had interviewed the accused based on his admissions or based on the confessional statement the accused had made. The accused gave evidence and corroborated Mr Gigi’s evidence on this fact. So, I take it that that was what had happened. If that was the case, which I find to be so based on this corroborating evidence, then it would seem that the record of interview would have been affected as well, that is, based on the claims made by the accused. I therefore, in all fairness, must reject them both.

SUMMARY

12. I uphold the objections by the accused. I find that the State has failed to negate the allegations that the confessional statement and the record of interview were not voluntarily obtained from the accused. I will therefore disallow the admission of the confessional statement and the record of interview, into evidence.

ORDERS OF THE COURT

Objections upheld.
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused