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State v Paru [2021] PGNC 239; N9108 (15 July 2021)

N9108

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 289 OF 2012

THE STATE

V

JAMES PARU
(No 1 of 2021)

Waigani: Berrigan J
2021: 2^nd, 3^rd June and 15^th July

CRIMINAL LAW – Confessional Statement – Admissibility – Voluntariness – Common Law – S 28 of the Evidence Act - Discretion to exclude admissions obtained voluntarily on the basis of fairness and public policy grounds – Discretion to exclude where prejudicial effect outweighs probative value – Statement voluntary – Admission of statement fair – Probative Value not outweighed by prejudicial effect - Statement admitted.

The accused objected to the admissibility of his confessional statement on the basis that it was not voluntarily given because at the time of his arrest a gun was pressed against his chest, and another person who was present was limping and holding his ribs in severe pain. The accused further objected to the statement as being improperly or unfairly obtained on the basis that he fell ill after he was picked up and was not in his right frame of mind, that he was not administered his rights under s 42(2) of the Constitution, and that the content of the statement was not read to him to understand before he signed it. The evidence established that the accused was promptly informed in a language he understood of the reason for his detention at his home pursuant to s 42(2)(a) of the Constitution. He told the police he would cooperate with them. The evidence did not support the contention that he had a gun barrel pushed against his chest, nor that another person present was limping and holding his ribs in severe pain. The accused was taken to the station where he told officers for a second time that he was going to cooperate with them. He was cautioned as to his right to remain silent. The accused said that he understood and agreed to give a statement. The accused was asked which language he wished to speak in and the accused indicated that he preferred to speak in English before proceeding to give his statement which was typed down by a police officer. Once finished the accused read through the statement on the computer before acknowledging the statement as his and then signing it on every page. The accused was not detained for an extensive period before the statement was taken. There was no persistent questioning. The accused was a mature, intelligent and confident man, and not someone who would be easily influenced. The evidence excluded any possibility that the accused was affected by illness to such an extent, if at all, as to render his admissions involuntary or unreliable.

Held:

1. As a fundamental principle, an out of court admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, 'made in the exercise of a free choice to speak or be silent'. An admission is not made voluntarily if the will of the accused has been overborne. If the statement is the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person it cannot be voluntary. This ground of exclusion is non-discretionary. If the admission was not made voluntarily then it is not admissible and that is the end of the matter: McDermott v R [1948] 76 CLR 501; R v Lee [1950] HCA 25; (1950) 82 CLR 133; Wendo v R [1963] PNGLR 242; Paru v The State (2017) SC1632. If there is evidence that the accused's statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed: The State v August Toiamia (1978) N145.
   
2. The absence of the full and proper caution is a matter to be taken into account when determining whether a statement is voluntary in the sense of it being made in the exercise of a free choice to speak or be silent. A confession may be voluntary, however, even though the confessor has not been told either expressly or impliedly that he or she has the right to remain silent. It is compulsion or pressure that offends against the common law, not necessarily the absence of a caution: R v Ginitu Ileandi [1967 – 1968] PNGLR 496. Regard may be had to the surrounding circumstances to ascertain whether the accused spoke because of some importuning or threat or whether it was because he or she chose to do so: The State v Kwambol Embogol (1977) N91. Despite improprieties or illegalities, despite the lack of caution, confessional evidence may be admitted if it is established to have given voluntarily: R v Suk Ula [1975] PNGLR 123; Paru.
   
3. Despite finding a confession to be voluntary, a confession that is held to be made voluntarily may nevertheless be excluded in the exercise of a trial judge’s discretion where: a) it would be unfair to the particular accused to admit evidence of the admission; b) it should be excluded on public policy grounds; or c) the prejudicial effect of the evidence outweighs its probative value; Gasika v The State [1983] PNGLR 58; R v Swaffield [1998] HCA 1.
   
4. The evidence established beyond reasonable doubt that the confessional statement was given by the accused voluntarily, that is was made in the exercise of the accused’s free choice to speak or be silent. He did not speak because he was overborne. His statement was not the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure. No inducement was made prior to the making of the statement. To the extent that any inducement might be inferred from the circumstances of his apprehension, the evidence established beyond reasonable doubt that it had been removed by the time that he gave his statement. The confessional statement is admissible.
   
5. The accused has not established on the balance of probabilities that it would be unfair to admit the statement against him despite the failure to administer the caution under s 42(2)(b)(c), nor that it should be excluded on public policy grounds. The prejudicial value of the statement does not outweigh its probative value. It is in the interests of justice that the statement be admitted to be considered together with the other relevant evidence.
   
6. The confessional statement of the accused is admitted.
   

Cases Cited:
Papua New Guinea Cases

Gasika v The State [1983] PNGLR 58
Wendo v R [1963] PNGLR 242
The State v Kwambol Embogol (1977) N91
The State v Balana [2007] PGNC 12, 21 March 2007
Paru v The State (2017) SC1632
State v Rambio (1983) N410
The State v August Toiamia (1978) N145
R v Ginitu Ileandi [1967-68] PNGLR 496
The State v Kuya [1983] PNGLR 263
The State v Kwambol Embogol (1977) N91
R v Gitinu Ileandi [1967-68] PNGLR 496
R v Suk Ula [1975] PNGLR 123
Constitutional Reference No. 1 of 1977 [1977] PNGLR 295
The State v Toiamia [1978] N145
The State v John Michael Awa and Others CR No 905 of 1998, 15 May 2000
The State v Mana Turi [1986] PNGLR 221
R v Skelly [1965 – 1966] PNGLR 105
R v Amo and Aumuna [1963] PNGLR 22
The State v Kwambol Embogol (1977) N91
R v Minai [1963] PNGLR 195
The State v Joseph Maino [1977] PNGLR 216
The State v John Yambra Pai (1986) N535
The State v Leo Aiyak (1990) N799
R v Tovarula [1973] PNGLR 140
Pritchard v The State (2016) SC1541
Bakeri Pen v The State (1997) SC514
John Jaminan v The State No 2 [1983] PNGLR 318
Kitawal v The State (2007) SC927
The State v Goli Golu [1979] PNGLR 11
R v Ginitu Ileandi [1967–68] PNGLR 496

Overseas Cases

R v Lee [1950] HCA 25; (1950) 82 CLR 133
McDermott v R [1948] 76 CLR 501
R v Dixon (1992) 28 NSWLR 215
Collins v R [1950] HCA 25; (1980) 82 CLR 133
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
R v Swaffield [1998] HCA 1
R v Williams (1992) 8 WAR 265
Bunning v. Cross (1978) 141 CLR 69
Pollard v the Queen [1992] HCA 69
R v Christie [1914] UKLawRpAC 20; [1914] AC 545
Basto v. The Queen [1954] HCA 78; (1954) 91 CLR 628
McPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512
Browne v Dunn (1893) 6R67 (HL)
MWJ v R [2005] HCA 74; 2005 222 ALR 436
Jackson v R [1962] HCA 61; (1962) 108 CLR 1

Legislation and Other Materials Cited:

Section 28 of the Evidence Act
Section 42 of the Constitution

Counsel

Mr. F. Galama and F. Gubon, for the State
Mr L. Mamu, for the Accused

DECISION ON VOIR DIRE

15^th July, 2021

1. BERRIGAN J: The accused is charged with one count of wilful murder, contrary to s 299 of the Criminal Code (Ch. 262) (the Criminal Code), such that on the 23^rd day of July 2011 at Napanapa Road, Central Province he wilfully killed one John Hulse.
   
2. The matter was remitted to the National Court for retrial on 3 November 2017 by the Supreme Court following a successful appeal against the admission of the confessional statement of the accused on the basis of procedural error.
   
3. The matter subsequently came before me. At the commencement of the trial the State sought to tender certain documents.
   
4. A notice of voir dire objecting to the admission of the accused’s confessional statement of 26 August 2011 was filed on 11 April 2019. It also objected to the crime scene indication conducted on 31 August 2011 and a record of interview given by the accused on an unspecified date. The notice is in the following terms:
   

“PARTICULARS OF OBJECTION

1. The Accused objects to the admissibility of the Confessional Statement on the following grounds:
   

(i) The confessional statement was improperly or unfairly obtained;

1. The accused fell ill after he was picked up and was not in his right frame of mind.
   
2. The accused persons rights under section 42 (2) of the Constitution was breached in that the accused was never given the benefit or opportunity to see a lawyer.
   

100. The content of the statement was never read to the accused for him to understand before he signed it.
     

(ii) The confessional statement was involuntarily obtained;

4. The accused was picked up by Detective Aaron D/S Silas who pointed a gun at the accused and pressed it against the chest of the accused before the accused was questioned and the statement obtained.
   
5. A person by the name of Chris Loau was with Detective Aaron D/S Silas at the time the accused was picked up and Chris Loau was holding his rib and limping at the time causing the accused to be frightened.
   

2. The Accused objects to the admissibility Crime Scene Indication on the following grounds:
   

(a) It was the investigating officer’s idea to visit the crime scene and not the accused person’s idea.

(b) The accused was not given an opportunity to see a lawyer before the crime scene visit in breach of section 42 (2) of the Constitution.

(c) The accused was taken to the crime scene involuntarily whilst he was under medication.

3. The accused objects to the admissibility of the Record of Interview on the following grounds:
   

(a) The record of interview was influenced by the inadmissible confessional statement and the crime scene indication.

(b) The accused was not given an opportunity to see his lawyer

(c) The accused was ill and under medication when the record of interview was conducted.”

5. The State abandoned the tender of the crime scene indication and the record of interview. I will return to this later.
   

GENERAL PRINCIPLES

6. The Supreme Court in Gasika v The State [1983] PNGLR 58 held that on a voir dire to determine the admissibility of a confession the matters for determination are: (a) the question of its voluntariness; and (b) whether in all the circumstances of the case it would be unfair to admit the material against the accused. Apart from the particular discretion to exclude evidence of a confessional statement, a trial judge has a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value.
   

Voluntariness

7. As a fundamental principle, an out of court statement or confession is not admissible unless it is voluntary, that is “made in the exercise of a free choice to speak or be silent”. This ground of exclusion is non-discretionary. If the admission was not made voluntarily then it is not admissible and that is the end of the matter.
   
8. At common 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 remain silent, it must be shown to have been so made before it can be admitted in evidence against him.”: R v Lee [1950] HCA 25; (1950) 82 CLR 133; Wendo v R [1963] PNGLR 242 to 245 per Dixon CJ, Owen and Tailor JJ; The State v Kwambol Embogol, N91, 7 April 1977. See also The State v Balana [2007] PGNC, 12, 21 March 2007; Paru v The State (2017) SC1632.
   
9. The leading definition of voluntary at common law is found in Dixon J’s judgment in McDermott v R [1948] 76 CLR 501 @ 511:

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ... The expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority ...”

10. Section 28 of the Evidence Act, (Confessions Induced by Threats) codifies the position at common law regarding persons in authority. It 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. A person in authority includes anyone involved in the arresting, detaining or interviewing of the accused, or someone whom the accused believes is in a position to influence the prosecution’s case or the manner in which the accused is treated: R v Dixon (1992) 28 NSWLR 215, Wood J; State v Rambio (1983) N410.
    
12. An inducement may take many forms, including fear of prejudice or hope of advantage exercised by or held out by the person in authority. Pursuant to s. 28 of the Evidence Act, once there is a threat by a person in authority, the statement is inadmissible until the contrary is shown. The defence does not have to show that the threat actually induced the confession in a causative sense; all that is necessary for the defence to show is that the threat preceded the confession and that the inducement had not been removed: The State v August Toiamia (1978) N145.
    
13. In summary, an admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, 'made in the exercise of a free choice to speak or be silent'. An admission is not made voluntarily if the will of the accused has been overborne. If the statement is the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person it cannot be voluntary. If there is evidence that the accused's statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed.
    
14. It is well established, however, that a confession may be voluntary although the confessor has not been told either expressly or impliedly that he has a right to remain silent be he so minded. Similarly, the failure to administer a person in detention their rights under s 42(2) does not of that fact alone render their statement involuntary. It is the compulsion or pressure that offends against the common law not the absence of caution: R v Ginitu Ileandi [1967-68] PNGLR 496; The State v Kuya [1983] PNGLR 263. Regard may be had to be surrounding circumstances to ascertain whether the accused spoke because of some importuning or threat or whether it was because he or she chose to do so: The State v Kwambol Embogol (1977) N91.
    
15. In Paru the Supreme Court said:
    

“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.”

16. The issue with respect to voluntariness is not the propriety of the police, but the effect of police conduct in all the circumstances on the will of the accused. In determining the issue the Court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made. As Brennan J in Collins v R [1950] HCA 25; (1980) 82 CLR 133 at 149 explained:
    

“The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. A finding that there has been an attempt to overbear by persons in authority is neither determinative of, nor an essential prerequisite to, a finding that the will of the person making the confession was overborne...

A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J. in McDermott's case, upon the will which determines admissibility. "Voluntary" does not mean "volunteered", but "made in the exercise of a free choice to speak or be silent" (Lee, supra, at p.149).

So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”

17. Similarly, Wilson J said in The State v Toiamia [1978] N145:
    

“What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.”

18. When the defence objects to the admission into evidence of a record of interview, the burden of proof is on the accused on the balance of probabilities to adduce evidence as to the facts relied on in support of a claim that a confession has been obtained involuntarily. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt: The State v John Michael Awa and Others CR No 905 of 1998, 15 May 2000. (Cf position in Australia following Wendo where the burden is on the prosecution on the balance of probabilities.)
    

Discretionary Exclusion of a voluntary admission

19. Despite finding a confession to be voluntary, the court has a discretion to exclude it in the exercise of its discretion if the accused establishes that it is unfair for the confession to be used in evidence against the particular accused because of the circumstances in which it was made: R v Lee [1950] HCA 25; 82 CLR 133; R v Wendo [1963] PNGLR 217 at 232; Gasika.
    
20. Furthermore, a voluntary confession might also be excluded on public policy grounds, that is by the trial judge in the exercise of his or her discretion if the accused establishes that it was illegally or improperly obtained: R v Wendo [1963] PNGLR 217 at 232; R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Gasika.
    
21. In addition there is the question of prejudice: Gasika.
    
22. In summary, there are three categories of cases in which a confession that is held to be made voluntarily may nevertheless be excluded in the exercise of a trial judge’s discretion:
    
    1. where it would be unfair to the particular accused to admit evidence of the admission;
    2. where it should be excluded on public policy grounds;
    100. where the prejudicial effect of the evidence outweighs its probative value.
         

R v Swaffield [1998] HCA 1.

23. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the particular accused person. The purpose of the discretion to exclude on public policy grounds, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused, is to protect the public interest. The power to exclude evidence the prejudicial impact of which is greater than its probative value, is to guard against a miscarriage of justice: Swaffield (Toohey, Gaudron and Gummow JJ) at [52].
    
24. Where an admission has been made voluntarily, it is for the accused to establish on the balance of probabilities that it should be excluded in the exercise of discretion.
    
25. It is a question of degree in each case and requires a determination “in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.”: R v Lee [1950] HCA 25; 82 CLR 133; McDermott v The King (1948) 76 CLR 501 at 514 (Dixon J)1111; The State v Mana Turi [1986] PNGLR 221.
    
26. The Court should consider the nature, seriousness and extent of improprieties and breaches of the Constitutional rights and then decide whether in all of the circumstances it would be unfair to allow the confession to be adduced into evidence: R v Skelly [1965 – 1966] PNGLR 105 at 107.
    
27. Whilst reliability will always be a relevant consideration but may not be the only consideration. There may be cases where a reliable account will be excluded due to other factors, whether it be the impropriety of police, or the particular vulnerabilities of an accused: R v Williams (1992) 8 WAR 265.
    
28. In any case, regard should also be had to such factors as the age, education, sophistication, intelligence and background of the accused: R v Amo and Aumuna [1963] PNGLR 22; The State v Kwambol Embogol (1977) N91.
    
29. In considering whether to exercise the discretion, the court is required to weigh the factors that are said to give rise to unfairness against the public interest in placing otherwise relevant and admissible evidence before the jury, so that those who commit serious offences may be brought to justice: R v Ireland. The nature and seriousness of any unlawful conduct on the part of authorities will be an important consideration. “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price”: Per Barwick J in Ireland at pp 334-335; see also Bunning v. Cross (1978) 141 CLR, at p 69).
    
30. As Deane J explained in Pollard v the Queen [1992] HCA 69, per Deane 203.” (emphasis mine):
    

“In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" ((33) Bunning v. Cross (1978) 141 CLR, at p 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" ((34) ibid). In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."

31. I will return to these discretions further below.

Prejudice

32. Finally, a trial judge may refuse to admit an admissible confessional statement if its probative value is outweighed by the danger of unfair prejudice to the accused. At common law the discretion should be exercised where the evidence “would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value’: R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 559 (Lord Moulton).
    

Purpose of Voir Dire

33. It is important to bear in mind that the purpose of a voir dire is to determine as a legal question whether a confession should be excluded. The grounds of exclusion are to be distinguished from the issue of whether or not the confession was in fact made by the accused, which is a question of fact for the judge sitting as the jury to determine. An assumption that the confession was made underlies the voir dire hearing on each of the three grounds. If admitted, it is then a question for the judge as the decider of fact to determine what weight to be given to the confession. Allegations that a confession was fabricated are matters for the trial proper: Pai.
    
34. The State is not permitted to lead evidence or cross-examine as to the truthfulness of the confession: Gasika; R v Minai [1963] PNGLR 195.
    
35. Where the accused’s sole claim is that the confessional evidence was not made or was not accurately recorded there is no need for a voir dire. Those are matters for the trial proper: The State v Joseph Maino [1977] PNGLR 216; The State v John Yambra Pai (1986) N535.
    
36. Where an accused raises questions of voluntariness and fabrication, for example the forced signing of a statement he did not make, then a voir dire is required to determine the issue of voluntariness.
    
37. For that reason, in other jurisdictions where the judge and jury is separate, it is sometimes necessary to go over before the jury the same testimony and material as the judge heard or considered on a voir dire: Basto v. The Queen [1954] HCA 78; (1954) 91 CLR 628; McPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512.
    
38. The accused should not, however, be permitted to attack the content of the confession on the voir dire: Pai. In my view, however, the circumstances of the giving of the statement, including whether it was a forced confession, or the forced signing of a fabricated confession, whether a confession was read back, or whether corrections were made, may be led on the voir dire. Those matters may be relevant to properly understanding the evidence on voluntariness.
    
39. If an accused wishes to rely on that evidence in the trial proper for the purpose of challenging the content of the statement itself he may do so. Evidence on a voir dire becomes evidence on the trial for all purposes in this jurisdiction: R v Amo and Amuna [1963] PNGLR 22 at 26 – 27; Pai. If the accused wishes to further challenge the content of the statement then it may be necessary for him to give evidence on the trial proper.
    
40. The question on the voir dire, however, is whether, on the assumption that the alleged admission was made, it is inadmissible for being involuntary. If it is admitted in evidence, then the question on the trial is whether it was made, and if made, what weight should be given to it, in light of all the evidence: Thongjai v the Queen; Lee Chun-Kong v the Queen: PC 5 Aug 1997.
    
41. Whilst the accused is not obliged to give evidence on the voir dire, it will often be difficult for an accused to make an effective challenge to the admissibility of confessional evidence without giving or calling evidence: The State v Leo Aiyak (1990) N799.
    

Reading of Confession or Admission

42. Upon hearing the voir dire, the judge may read the statement of confession in assessing the credibility of the accused and the interviewer: R v Tovarula [1973] PNGLR 140; and in the exercise of his or her general or residual discretion: Gasika v The State [1983] PNGLR 58. The better practice, in most cases, is for the trial judge to hear the evidence of both sides on the voir dire, and then to consider, with the help of any submissions from counsel, whether some assistance might be obtained from looking at the document: Gasika v The State; The State v Balana.
    

STATE’S EVIDENCE

43. The State called one witness, the investigating officer.
    
44. Detective Sergeant Aaron D/S Silas is a police officer of 30 years standing. He is currently the Officer in Charge (OIC) of the Fraud Unit, attached to the Criminal Investigation Division, Boroko. He has been in CID for the last 17 years. He was one of the detectives assigned to this case and arrested and charged the accused with Sgt Wellen. He gave evidence that the accused was apprehended at his home at Sabama on 26 August 2011. On that day they conducted investigations into the murder of John Hulse and were led by a co-accused to another person in Hisiu in Central Province. There they apprehended one suspect who became a witness and that witness led them to the accused at Sabama. At the time of the apprehension the accused was outside his house. He looked normal at the time. He can’t recall if the accused was sleeping but he saw him standing in front of his house when they went in. They told him that that they had information that he was involved in the murder of John Hulse. He told them that he would cooperate with them and he came into custody and they escorted him to Boroko Police Station. At the station he told D/S Silas and some other officers he was going to cooperate with them. D/S Silas asked him if he was prepared to give a confessional statement and he agreed. He cautioned the accused first. The accused told him that he understood the caution so after the caution D/S Silas got on the computer and typed out the confessional statement. The statement was taken in English. The accused signed the confessional statement. D/S Silas did not counter sign the statement. As an investigator he relied on the investigator’s manual and follow the Judge’s Rules contained in the manual. According to Judge’s Rule No 9, in the Manual, only the person making the confessional statement can sign. According to Rule 4 of the Investigator’s Manual, if a person in custody wants to confess, they should caution him, whether in custody, arrested or charged or not, you must give him the usual caution. As to the allegation that he pointed a gun at the accused at the time of his apprehension, he said that they had a reasonable belief that there was a weapon at the premises, and could be used against them, and so according to standard operating procedure when going in to an area where there is a threat, they had guns with them, and aimed them at the suspect and only lowered them after the threat was taken care of. As to the allegation that Chris Loau was with them and was limping and holding his chest he said that he had just come out from an appendix operation at PIH, so yes he did come out of the car holding his side. He agreed that he did not advise the accused of his right to see a lawyer pursuant to s 42(2) of the Constitution. Based on his understanding of the manual he can only administer the short caution, which he did. He told the accused: “You do not have to say anything but anything you do say may be taken down and given in evidence.” The accused told him he understood the caution. He went on to type the statement and after completion of the statement he allowed the accused to read through the statement, which he did before signing the statement. He was unable to recall how many pages the statement was given that it had been ten years. But he recalled that it was a Form 42 statement commonly used by the RPNGC. He identified MFI 1 as the confessional statement of the accused, and the signature of the accused on the bottom of each page of the statement as the accused’s.
    
45. In cross-examination he said that there were a good number of officers that went to Sabama to arrest the accused, about 5, less than 10. He could remember that the operation started off in the night with two cars. When they came back to Moresby, one car stayed back, so they used only one car. Chris Loau, a suspect, apprehended in Hisiu, was in the vehicle. Chris Loau told D/S Silas that the accused is an uncle. Chris Loau told him he had an appendix operation. The accused’s house was a low carbonite government house, with short posts. He could not recall if the house was fenced. According to standard operational procedure, they come down and surround the house, and block off any routes they think a suspect might use to escape. In this case they did not actually have time to surround the house because when they went there Chris identified the guy they were after so they walked straight across to him. Chris said to him “that is James Paru”. He can’t recall what the accused was doing in front of his house but he saw him standing in front of his house. He denied that the accused was sleeping in front of his house and that he pushed his rifle or pistol into his chest and forced him to stand up. He did not see that the accused was distressed or sick but the accused told him that he was going to cooperate. It was not true that Chris Loau was holding his ribs as a result of being assaulted by police. As to the proposition that whilst Chris was holding his ribs he was directly in front of accused and the accused could observe his condition, he said that he could remember that when Chris got off the car he pointed straight at the accused and said “that is James Paru” and there was nothing obstructing because the house was close to the road. He did not agree that because the accused saw Chris holding his ribs he knew that Chris had been assaulted and that he would be assaulted as well. It was not true that fear was amplified when he pointed the gun at him and forced him to get into the vehicle. After Chris pointed out the accused he did confirm “is it you bearing the name James Paru?”. It was not true that he did so with force by using the gun. That is not what happened. Through James Paru’s willingness, he told them where he hid the pump action, and so with his cooperation they dug up the pump action, on the side of the house, removed it, and took him to Boroko Police Station. He denied that whilst travelling from the house to Boroko Police Station he continued to force him to admit what he did. He agreed that apart from the firearm he held, the other officers held guns as well. It was a police operation so yes they did. Obviously they had to hold them whilst travelling to Boroko Police Station, they could not leave them lying around in the car.
    
46. He agreed that apart from the Judge’s Rules, s 42(2) of the Constitution also says that an officer must administer a caution. That is usually administered when they actually lay charges on a suspect or an accused, when they hold his hands to say he is under arrest. Those rights included speaking in private to a lawyer of their choice, a member of the family. He agreed that a suspect has a right to speak in a language of his choice. He asked the accused which language he preferred. He agreed he did not administer the right to see a lawyer. He applied the short caution. He understood that the rights are administered to give them the right to speak or not to speak. It was not true that at the time he proceeded to obtain the confessional statement the accused was overburdened from his house to the police station and so the statement was not voluntary. At the time they apprehended him he said he was going to cooperate and that is how they obtained that confession. It was not true that because the accused was sick, he was not in his right frame of mind to proceed. “He cooperated with us all the way”. It was not true that the confessional statement was never read before signing. He gave him the opportunity to read it on the computer and to make any changes he wished to before he printed it out to sign. After he read through he said that is right that is my statement. D/S Silas printed it out and gave it to him to sign, which he did.
    
47. In re-examination Silas confirmed that he followed the investigative manual which specifically states they can use short caution so they don’t apply s 42(2). The accused was not assaulted. The statement was voluntary. “Straight when the accused was apprehended he told us he would cooperate all the way with police, by showing us where the gun was, by going back to the station, and by giving the confessional statement.” In answer to the Court’s question as to what the accused actually said, he said “I will cooperate with you guys all the way.”
    

DEFENCE EVIDENCE

48. The accused, James Paru, gave evidence on the voir dire and called one additional witness, his wife, Ruth Paru.
    
49. James Paru is 60 years old. He is married to Ruth Paru. He has four children, the last is about 25 years old and the first, 38 years old. He lived at Sabama prior to his arrest in his father’s house. At the time of his arrest he was living there with his wife and two grandchildren. He recognised Aaron D/S Silas as the person who arrested him at about 9 am on 26 August 2011.
    
50. The whole of July he had severe malaria. He did not want to sleep in the house. He told his wife to lay carpets outside. He slept outside under a mosquito net for about four weeks, all of July and August he was sick until the day of the arrest. When the police arrived he was lying down. There were about 8 men. There were two to three vehicles but he did not see the other vehicles but was forced into another vehicle. He saw a vehicle up at the roundabout and the one he got on was up near the gate. D/S Silas came out of the vehicle and forced his uncle, Chris Loau, to show the house. Chris had stayed at the house and had an operation for his appendix in May and was treated. He lived with him for about a month but he was okay. When the police came in he was lying down under the house, with short metre posts. They just pushed the doors open. The house is fenced. It has a gate. He was sleeping under the house and looking under the posts towards the front gate. A policemen came in and Chris followed, and behind Chris there were about 6 who separated and went around the house with arms. The policeman who came in first was Aaron D/S Silas. He was sort of forcing Chris, show me, and said, “is that the person”?. He held an M16 rifle. Chris was moved and forced with the barrel, he was limping. He was pushing him with the gun barrel and brought him to the corner of his house. Chris was in severe pain. D/S Silas asked Chris Loau where is the person and Chris pointed at him. After that Aaron D/S Silas and the other policemen and another policemen Lawrence Wellen, an investigator assisting D/S Silas, saw him and asked him “Are you James Paru?”. D/S Silas came straight to him and he was sleeping. He put his elbows on the ground and lifted his body up and D/S Silas put the barrel on his chest and told him to get up whilst he was pushing the barrel on his chest. He struggled to get up whilst he was pushing with the gun. He was trying to get up but D/S Silas was pushing him down but eventually he stood back and let him up. After that they took him down. D/S Silas and Wellen helped him down. D/S Silas denied that he was sick but Wellen helped him. Even at the station he assisted him to the hospital. Wellen knew that he was sick and he continued to assist him until he was taken to the hospital two days later. When he was lying down he called to his wife to get a cup of water. He knew the policemen were all around and he called the two children to stand with him as a shield. He was supported to get up on to the back of a Land Cruiser. He remembered an unmarked green vehicle. He can’t remember if D/S Silas was with him in the ten seater, or who was driving but there were some policemen in the vehicle. Wellen was driving the Nissan Navara. From the house to the station he was supporting himself by laying on the window with his elbow. Chris Loau was in another vehicle. When they arrived at the station, so many policemen surrounded him and started asking questions, not a question, but saying “yu tasol yu kilim whiteman, nau yu tok out you no ken hidim em”. In English: You must admit you must not hide it. You must admit that you killed a white man. D/S Silas was telling him and so many around there were supporting saying the same words. This was inside the armed robbery office. They kept on questioning him, telling him to tell them what happened so he felt that they were so aggressive. They told him he must cooperate and nothing would happen to him. As to D/S Silas’ evidence that he expressly said he would cooperate, he said that they told him to cooperate. He saw Chris and he saw the barrel. He was looking at the safety catch and thinking what if it goes off, so he just said he will cooperate but not with favour but with fear.
    
51. He did not give a statement to police in their office. They asked him to cooperate and tell the story so they wrote it themselves. He did not write a statement. Wellen wrote the statement. He told him just to tell the story and he started writing. He didn’t know how he wrote it. After an hour or two they dispatched and he was left with his wife outside. Wellen was the one with him at the time. He was the one that wrote the statement. The accused did not answer the question “what was he writing”. As to the story he was getting from him, he said that he asked him questions, “how did I get up there and all those, you just tell me everything and nothing will happen to you, your sister will be charged and you will be like our witness”. As to the evidence by D/S Silas that he was given an opportunity to read the statement he said that he was sick, he had migraine pain, he got so many breaks. He didn’t mind what he wrote, he just pushed it towards him and said sign it and he signed it. He could not hold on sitting on the chair, so he had to go and sit with his wife. Sit for 20, and then go out again, and then come in and sit for 20. There were 6 to 7 breaks that day until 406 pm. From 9 am until he arrested and charged at 4pm. He need the breaks to lie down, his back and all of the side of his ribs was paining. He doesn’t know the time he was formally arrested. It was almost evening; he guesses it was about 430 to 5pm. His wife got the bus and followed him to the station herself. There were so many pages. He could not remember signing the confessional statement. There were so many papers. He signed some. He didn’t know. They did not tell him what kind of documents he was signing. He identified his signature on each page of the statement. He did not read the statement. He was so dizzy but whatever they wanted he just glanced it through. He did not want them to keep him that long. They turned the paper around. See it and sign it. He just signed it. As to the suggestion that D/S Silas said he cautioned him that he had the right to remain silent and whatever he said could be written down and given in court, he said that was after Wellen put his hand on top of his hand and formally arrested. It happened five minutes before the formal arrest. After being arrested he was locked up in Boroko CID cells. His wife went home. He was taken before the District Court the following day, 27 August, for the first mention. He stayed in Boroko cells for 9 months.
    
52. Under cross-examination he said that he served time in the infantry division of the Defence Force. At the time he was honourably discharged he held the rank of corporal. Although he could see the safety catch of the gun at the time he was forced to the ground by the barrel, he was afraid that if it was knocked the gun could go off. No shots were fired that day. He cooperated with police but not his own way. They forced him to show them where the gun was. He stood up, with the gun at his back, and showed them where gun was.
    
53. As to the statement, he can’t recall what he told the police. He did not write anything. He can’t recall if it was typed on a computer. He can’t recall what he was doing. He didn’t write anything himself. He was given the paper to sign. There were so many typewriters. He can’t recall if he used a typewriter. His back was aching. He was not in the mood of answering the questions. He just said whatever they wanted. He just let them do whatever they wanted. He was not sitting in front of a computer. He was one metre away from him. There was a computer on the table. After they printed it, they showed him a paper. He did not tell him it was a confessional statement or record of interview, they were doing at the same time. There were so many officers around him sitting on chairs and tables in the office. Starting from the vehicle in tok Pisin, or as translated in English “We will go, you admit everything and nothing will happen to you”. They asked him to say. He did not say anything. The pressure was big at the police station, so many police, throwing words. He didn’t say anything until Wellen sat with him during the record of interview. How the confessional statement came up he can’t recall. He signed it. They should have given him time to feel well. He was sick. He signed some papers when he was picked up. There were clocks. It was 930 at the office, some things they wrote down, or typed down. He did not understand. He can’t recall if he said anything before he signed the confessional statement. He was only told of his right to remain silent, and that anything you say will be written down, five minutes before his arrest. It was not done before he signed the document. He was in a lot of pain so whatever they wanted he just signed. After he signed the document he transferred back to the cells. Between 4 and 5 he was called into the same office to be formally charged. He spent the whole day in the office.
    
54. Ruth Paru, 53 years old, is married to the accused. She currently lives in Sabama with her children and grandchildren. On the day police came and arrested her husband it was early hours. She was with her husband and children. He was sick. She did not know what type of sickness. It was fever. He told her to put a mat outside on the ground and he slept. When police came she stayed closed to him. About five or six came with guns. She was scared and her grandchildren were scared and ran away to another house and she was looking for them. She was scared because they did not come in a good way. They pointed the gun at him; all the children they ran away. She did not see him taken away as she was looking for her grandchildren. When she found her grandchildren and brought them back they were crying. She is not clear of the time. About 9 am. She and her two children went to Boroko police station. They went to the station and stayed outside. CID came and told them he was there and took them into the CID office. Nothing happened. They told them he killed a person. It was afternoon so they went back to the house.
    
55. Under cross-examination she maintained that she saw the police surround the house. She did not see him get into the vehicle. At CID a person who took them into the office told her what happened. In response to my question she said that after seeing her husband in the morning, the next time she saw him was the next day.
    

SUBMISSIONS

56. Defence counsel submitted that it was utterly unusual in a police investigation for the police not to use force and intimidation on suspects and during the process of obtaining admissions. Chris Loau was holding his ribs in pain. Although he had undergone an operation to his appendix, the pain was around his ribs and not his abdomen. He was assaulted by police as he emerged from the vehicle to deliver the main suspect. The accused reasonably feared his safety and life. He was with his wife and grandchildren. He was sick. He was resting outside his house. There were policemen with guns pointing at him. The gun pointed at him had its safety trigger dislodged and ready to fire. He feared for his life and that of his family. This explains why he verbally and physically cooperated with police. Ruth Paru’s evidence of her grandchildren running away from the house out of fear affirms the evidence of Paru that the policemen were verbally forceful and demanding, not only his cooperation, but his confession, to avoid assault and the promise that all would go well. The evidence of James Paru that whilst at the police station carpark, he was continuously told or demanded to cooperate to avoid any bad treatment or assault amounts to a promise which he readily acceded to and gave his confession. Police were careful in ensuring that James Paru was not assaulted, but the verbal demands for his cooperation and admission are illegal and renders the confession inadmissible. He told this Court he confessed out of fear. Although the caution was administered, it was only done so as a matter of practice without any real and genuine efforts to ensure James Paru properly exercised his right to remain silent. The fact that no answer is recorded to the question supports the evidence of the accused that the caution was casually administered after his confession and before his arrest. This was not a case where the accused freely exercised his free choice to confess. He was overborne by the unlawful conduct of police from his house to the station to finally give the statement.
    
57. The State submitted that the accused spontaneously offered to confess. He demonstrated his willingness to cooperate by surrendering the gun at his house. The police applied standard operating procedures. The key aspects of the accused’s case were not put to D/S Silas in accordance with the rule in Browne v Dunn (1893) 6 R 67 (HL). The accused was made aware of his right to remain silent and chose to give a statement. There was no threat at the time the statement was obtained.
    
58. I note here that defence counsel have made reference to the Supreme Court decisions of Pritchard v The State (2016) SC1541 and Paru v The State in its submissions. Those decisions arise out of the original trial at which both the accused, and his co-accused, Taita Pritchard, were convicted.
    
59. Those Supreme Court decisions are highly relevant in terms of general principle but unlike the Supreme Court in both those appeals the evidence upon which I must decide is that called on the voir dire before me. I do not have the evidence from the initial trial before me. Both sides in this case were at liberty to cross-examine on the evidence given at the previous trial. Despite the fact that transcripts must have been available for the purposes of the appeal, neither did so. In the upshot, I must determine the matters on the evidence presented before me.
    

ASSESSMENT OF WITNESSES

60. The State witness, Aaron D/S Silas, impressed me as a witness of truth. Having heard and observed the State witness I accept him as credible and reliable. I make this assessment having regard to both his demeanour when giving evidence and the content of that evidence, and bearing in mind that I may choose to accept or reject any part of it.
    
61. He gave his evidence in a clear and direct manner without hesitation. He readily conceded certain matters, including that several armed officers were involved in the arrest of the accused, that Chris Loau was holding his ribs when they went to the accused’s house, that he and other officers pointed their weapons at the accused prior to his apprehension, and that he failed to inform the accused of his rights under s 42(2), but consistently maintained that the accused voluntarily cooperated with police at the time of his arrest and in providing the confessional statement, that the accused was cautioned prior to giving the statement, that the accused told him that he understood the caution, before giving a statement, which he read before signing. His evidence was not shaken under cross-examination.
    
62. In reaching my assessment of D/S Silas I have taken into account the fact that his statement failed to refer to the presence of two other officers at the time that he took the accused’s statement and considered the weight to be given to his evidence in those circumstances.
    
63. Defence counsel properly informed the Court and the State that Ruth Paru had been seated in the court room whilst the accused gave evidence. I made it clear that there was nothing to prevent or hinder the witness from testifying for that reason. The evidence the witness gives in such circumstances is a matter of weight to be assessed at the end of all of the evidence: Bakeri Pen v The State (1997) SC514. It was a matter for the defence, which ultimately decided to call her.
    
64. Mrs Paru’s evidence was somewhat limited. At times her evidence was hesitant and unclear. For instance, she initially did not know what was wrong with her husband but then said it was fever. Her evidence as to when she saw the accused at the police station took some time in chief to come out, hence my question to clarify. Nevertheless, I accept her as a witness of truth subject to those qualifications in terms of reliability.
    
65. The accused was an unimpressive witness. Having heard and observed the accused in the witness box, I am unable to accept his evidence on several key matters that are in dispute. Again, I make this assessment having regard to both the content of the evidence and his demeanour whilst giving that evidence.
    
66. The accused’s evidence was unconvincing and contradictory. I will deal with some of the contradictions further below as they become particularly relevant. In general terms, it is unclear whether his position is that he gave a statement involuntarily, or signed a statement involuntarily, which he did not give himself. The effect of the offender’s initial evidence is that he narrated his story, involuntarily. As his evidence progressed he increasingly distanced himself from the statement. Under cross-examination he said that he said whatever the police wanted, whilst also saying both that he did not say anything, and that he could not recall if he said anything.
    
67. Whilst the questions of whether or not the statement was actually made by the accused are for determination on the trial proper, the accused’s evidence on these matters is relevant to my assessment of his credibility on the voir dire.
    

SUMMARY OF OBJECTIONS

68. The notice of voir dire separates those matters which are relied upon by the accused to have the confessional statement excluded on the basis that it was not voluntary from those relied upon on the basis that it was improperly or unfairly obtained.
    
69. On the basis that it was involuntary (para (ii)), the notice states that at the time the accused was apprehended:
    
    1. The accused was picked up by D/S Silas who pointed a gun at the accused and pressed it against the chest of the accused before he was questioned and the statement obtained; and
    2. At the time the accused was picked up Chris Loau was holding his ribs and limping, causing the accused to be frightened.
70. It is contended that the statement should be excluded on the basis that it was improperly or unfairly obtained (para (i))because :
    
    1. the accused fell ill after he was picked up and was not in his right mind;
    2. the accused’s rights under s 42(2) of the Constitution were breached because he was never given the benefit or opportunity to see a lawyer;
    100. the content of the statement was never read to the accused for him to understand before he signed.
71. In addition to those matters outlined in notice, the accused gave evidence on the voir dire that:
    
    1. he was told at the police station by D/S Silas and other officers, aggressively, that he had to cooperate, and admit that he killed a white man;
    2. and that he must cooperate and nothing would happen to him, that his sister would be charged and he would be a witness;
    100. he was never told of his right to silence.
72. Despite the fact that notice of voir dire separated those matters relied upon with respect to voluntariness and those relied on with respect to improperly or unfairly obtained, the submissions of both parties did not clearly distinguish between the “imperative rule” that a confession must be rejected unless it is voluntary, and the discretion to reject a confession unfairly or improperly obtained. Although it is not always possible to treat these issues as discrete issues (R v Swaffield at 196), the distinction remains and it is important to address them accordingly.
    
73. Furthermore, it appears from submissions that the matters identified as being improper and unfair in paragraph 1 of the notice are also being relied upon with respect to voluntariness, and not only on the basis that the statement should be excluded as a matter of discretion.
    
74. Accordingly, I will deal with each of the matters raised in consideration of voluntariness first.
    
75. At the close of the voir dire, I indicated to counsel that it would assist me to view the statement in forming a view as to whether or not the statement is admissible. Neither objected. I make it clear that I have had regard to the statement for the purpose of determining the issues on the voir dire only.
    

CONSIDERATION – VOLUNTARINESS OF CONFESSIONAL STATEMENT

76. There was some evidence and the statement itself refers to it being taken in the presence of two other offices, Detective Senior Constable Lawrence Wellen and Emmanuel Fofosair. Neither gave evidence on the voir dire. No explanation was given by the State for this through D/S Silas. At the same time, however, it has been ten years since the statement was taken, defence counsel did not call for them to be made available for cross-examination, and no submission was made asking the court to find that the State unfairly failed in its duty to call all material prosecution witnesses (on the voir dire): see the discussion in The State v Joan Kissip (2020)N8184. In the circumstances I do not warn myself that the witnesses would not have assisted the State. Whether or not the State’s evidence is sufficient to establish the voluntariness of the confessional statement is discussed below.
    
77. The evidence establishes that a police operation was conducted the morning of the accused’s arrest. Police were armed and necessarily so. They were going to apprehend a suspect in an alleged wilful murder and had a reasonable belief at the time that a weapon may be at the premises. They were obliged to follow standard procedure to ensure both their own protection and that of the general public.
    
78. Contrary to defence submissions, there is no evidence that Loau was assaulted as he exited the police vehicle at the accused’s house. The accused gave no such evidence. I do not accept the accused’s evidence that Loau was limping and holding his ribs in severe pain. The accused says that D/S Silas came into the property first, followed by Chris, who was followed by several other police officers. At the same time, however, he says that D/S Silas was pushing Chris ahead of him with a gun barrel and brought him to the corner of his house. The accused did not explain how D/S Silas could be both ahead of Loau and behind him at the same time. Mrs Paru says nothing of seeing Loau at all.
    
79. I accept the evidence of D/S Silas that after Loau got out of the vehicle he pointed straight at the accused. I do not accept that Loau was limping. I do not find that he had been assaulted. I do find that he was holding the area of his ribs when he got out of the vehicle and identified the accused. Loau is a co-accused and did not give evidence for either party. D/S Silas gave evidence that when they apprehend Loau he had just come out of hospital following an appendix operation. The accused himself says that Loau had an operation. He says the operation was in May but the position is unclear.
    
80. I do not accept the accused’s evidence that D/S Silas pressed the gun against his chest and pushed him down. D/S Silas was adamant about that and his testimony was persuasive.
    
81. The notice of voir dire contends that the accused fell ill after his apprehension. Illness may affect an accused’s ability to make a choice whether to remain silent or not; it may also be relevant to the question of discretion.
    
82. As above, I found the accused to be an unconvincing witness. I do not accept the accused’s evidence that he was very unwell at the time he was arrested and/or at the time he was subsequently interviewed.
    
83. The offender’s own evidence on this matter is inconsistent in several respects. He initially said he had severe malaria for the whole of July, and that he slept outside under a mosquito net for about four weeks, but perhaps realising that he was arrested on 26 August, then said it was all of July and August until the day he was arrested. That is a period of almost two months. He initially said he was forced into a vehicle at the time of his arrest. Later he says that Silas and Wellen helped him and supported him into the vehicle.
    
84. The accused’s evidence is also inconsistent with that of his wife. His wife gave evidence that he had asked her to put down a mat and that he was sleeping outside that day. She made no mention of him being very unwell, or being unwell for days or weeks. She said he was sick but she did not even know what kind of sickness he had, and then said it was fever. Her evidence on the fever was not very convincing it must be said, and she gave no other evidence about any illness. Certainly, her evidence is not consistent with the accused’s evidence that he was very unwell that day. If the accused had been severely unwell for several weeks, with malaria, or any unspecified illness for that matter, she of all people would have been aware.
    
85. I reject the accused’s evidence that he was so unwell at the time of his arrest that he had to be helped to the vehicle by D/S Silas and Wellen. I also reject his evidence that he was extremely unwell at the station, and that he was allowed multiple breaks, every 20 minutes, whilst he was giving his statement, as he was unable to support himself, and was allowed to lie outside with his wife, that he was dizzy, that he was in severe pain, that he had a severe migraine. Notably, the accused does not mention fever at any time.
    
86. Again, the accused’s evidence as to his condition at the police station is inconsistent with his wife’s evidence. This casts further doubt on his account.
    
87. Both counsel confirmed in oral submission that her evidence was that she did see the accused later the same day of his arrest at the station. That is not my understanding of her evidence. In response to my question as to when she next saw the accused after his arrest in the morning, my note of her evidence is that she did not see him until the following day, which is consistent with the State’s written submissions. In any event, however, I find on her evidence that she did not see the accused multiple times during the day of his arrest for any reason, let alone to see him because he was allowed to have breaks due to illness. She makes no mention of him coming outside to see her and no mention of him being ill at the time she did see him, whether on that day or the next.
    
88. Mrs Paru’s evidence is consistent with D/S Silas’ evidence that the accused appeared well.
    
89. I accept on the evidence of the accused’s wife that he had a fever on the day of his arrest. On the evidence of D/S Silas and Mrs Paru it was mild. Certainly, there is no evidence to support the accused’s evidence that he was very unwell that day, or that he had been severely ill with malaria for some time.
    
90. It is also relevant in assessing the accused’s credibility that none of this was put to D/S Silas in cross-examination by the accused. The State was on notice that the issue of illness would be raised on the voir dire. It was put to D/S Silas that the accused was ill and sleeping at the house, and that he was not in his right mind at the time the statement was taken. But those matters specifically concerning the accused’s purported illness during the taking of the statement were not put to D/S Silas in cross-examination, in particular the extent of his illness, the assistance required at the house, the provision of multiple breaks at the police station, the access to his wife outside, or the fact that he was taken to hospital two days later. I discuss Browne v Dunn in further detail below.
    
91. Furthermore, it is unclear what the accused’s evidence is as to the effect of any illness on his state of mind. It is the case that the accused gave some evidence that suggests that the statement was fabricated by police. He seems unable to decide whether he gave the statement because he was so ill that he was unable to exercise a choice such that the statement was involuntary, or whether he was so affected by his illness that he signed a statement that was put in front of him, or whether he is unable to recall whether he gave and/or even signed the statement because he was ill.
    
92. The question of fabrication can be revisited in the trial proper but, as above, the inconsistencies in the accused’s evidence as to the circumstances in which the statement was taken are relevant to my assessment of his credibility.
    
93. Here I make it clear that the evidence has excluded any possibility that the confusing and inconsistent nature of his evidence is a result of any illness at the time of giving the statement such that he is genuinely unable to recall what happened at the police station.
    
94. It is obvious that there is a great deal of dispute as to what happened at the police station.
    
95. The State’s evidence as to what happened at the station would have benefited from greater detail. Evidence from D/S Silas as to the time they arrived at the station, where or how long the offender was held, the time the recording of the statement started, when it ended, when toilet or other breaks were taken, the details of others present are all relevant and important matters. As there is no audio or visual recording of statements or interviews in this jurisdiction, it is all the more important that such matters should be recorded, if not on the document itself then in a policeman’s notebook. A copy of the occurrence book stating the time at which the accused was charged should have been produced. Ultimately, however, the Court must determine the issues on the evidence before it on the voir dire.
    
96. Contrary to State submissions, there was no evidence from D/S Silas that the accused asked officers to take him to see D/S Silas, and then asked to speak in private with them before he was brought into the Armed Robbery Section Office. The evidence as to whether the accused was placed in a holding cell at the station before giving his statement is unclear from both parties. D/S Silas did not address it. The accused’s evidence is unclear. On one hand it suggests that he was taken into the Armed Robbery office immediately. Later he said he was taken back to the cells.
    
97. I do not accept the evidence of the accused that D/S Silas and other officers at the police station car park and inside the CID office told him, aggressively, that he must admit to killing the white man. Nor do I accept that he was told by police that if he cooperated nothing would happen to him, and that he would be their witness.
    
98. Apart from my general findings as to credibility, I found the accused’s evidence on these matters unconvincing and reject it. I accept the evidence of the State witness that no such threats or inducements were made at the station.
    
99. Whilst not necessary to my finding, it is a relevant consideration that neither of these matters are contained in the notice of voir dire filed in 2019. In addition, the allegations were not put to D/S Silas in cross-examination in violation of the rule in Browne v Dunn. Essentially that is a rule that requires, that an accused put his case to the witnesses called against him, or any matters that he intends to rely on to contradict them, in cross-examination so that in fairness the witness can comment and choose to either maintain or retract their evidence: see John Jaminan v The State No 2 [1983] PNGLR 318. The principles regarding the rule are set out in the SC case of Kitawal v The State (2007) SC927 when dealing with a trial proper. It is clear that the requirements of the rule vary according to the circumstances of the case, and the principal aim is to ensure fairness. It does not necessarily follow that failure to comply with the rule results in the conclusion that the evidence is recent invention, unreliable and should be rejected: Kitawal. The Supreme Court also said in that case that the requirements of the rule will be lessened if in fact prior notice of the defences of or the accused’s version of events has been given to the State in some other form, eg a ROI. Nevertheless, the failure is a matter to be considered in assessing the weight of the evidence. As the High Court in Australia emphasised in MWJ v R [2005] HCA 74; 2005 222 ALR 436 the rule must be applied in criminal proceedings with regard to the unavoidable burden of proof carried by the prosecution in a criminal trial. It is relevant here however that we are currently dealing with the accused’s application to have the confessional statement rejected. It is incumbent on him to establish certain matters to the balance of probabilities. There is nothing before me to suggest that the State would have been aware of the claims that he was told at the station by D/S Silas and others that he had to confess, or that nothing would happen to him, that he would their witness. That is not to say that if his evidence had been credible I would not have accepted it even if it had not been put to the State witness. In my assessment, however, these claims were recent inventions and unreliable. The accused has failed to establish on the balance of probabilities that such statements were made, and the evidence of the State excludes such a possibility beyond reasonable doubt.
    
100. For similar reasons I am unable to accept the accused’s evidence that he was not informed of his right to silence prior to giving the confessional statement.
     
101. D/S Silas’ evidence on this issue was again very clear. I find that it was in response to the accused’s statement to him at the station that he would cooperate, that D/S Silas asked him if he would provide a statement, to which the accused said that he would. It was at that point that D/S Silas cautioned him as to his right to remain silent.
     
102. Defence counsel’s submission that the Supreme Court in Pritchard found the warning to be nonsensical is, with respect, misconceived. The Supreme Court at [14] and [15] was dealing with the warning given prior to the crime scene reconstruction, which is not before this Court. The warning given in this case was in the following terms and accords with long held convention: “you do not have to say anything unless you wish to do so but anything you do say will be taken down and given in evidence”.
     
103. In reaching this conclusion I have taken into account that D/S Silas was not asked to explain in chief why no answer to the caution is recorded. I have also taken into the accused’s evidence that he was not cautioned until he was formally charged by Wellen and that no evidence was given by D/S Silas as to when and by whom the accused was charged. D/S Silas gave clear evidence, however, that I accept that he did caution the accused in the conventional manner prior to taking the statement, and that the accused said that he understood before proceeding to take his statement. This is also consistent with D/S Silas’ evidence that he cautioned the accused before “getting on the computer” to take the statement.
     
104. I also accept D/S Silas’s evidence that he asked the accused in which language he wished to speak and that the accused told him he wished to speak in English. Again, whilst the question and answer in this regard are not reflected in the statement itself, the evidence is consistent with the statement itself, which is written in English, which is the preferred language of the accused, who also chose to give evidence on the voir dire in English.
     
105. I also reject the submission that the accused did not read his statement before signing it. This is not borne out by his evidence, which again is contradictory and unconvincing. In evidence in chief the accused initially said that the statement was just pushed towards him and he was told to sign it so he signed it. Then he said he could not even recall signing the statement, that he signed many papers and he did not know what he was signing, he was not told. At another point in his evidence he said he “did glance through” the statement but he was dizzy and he did not want them to keep him that long. I don’t accept his evidence.
     
106. On reviewing the statement it appears to contain a handwritten correction, bearing the initials “JP”. The fact that a person is asked to and does make an alteration may be relevant to the question of whether an accused has voluntarily read, understood and adopted the statement. Neither the State witness nor the accused were examined or cross-examined about this and I will exclude it from my consideration. It is also relevant to whether the matters said in the statement were ever said by the accused and that is a matter for the trial proper.
     
107. The statement was not read to the accused but I accept D/S Silas’ evidence that the accused was given the opportunity to read the statement on the computer and to make changes before the statement was printed out, and that after reading it through the accused said that it was correct. The statement was printed and the accused signed the statement on every page, as admitted by him in evidence.
     
108. In reaching this conclusion I have taken into account that the statement has not been countersigned by D/S Silas or the other officers present. D/S Silas gave evidence that according to Judge’s Rule No 9, contained in the Police Manual, only the person making the confessional statement can sign the statement. I upheld an objection by the defence to the admission of an extract of the manual on the basis that it had not been served on the defence prior to the tender. It is well established that evidence that the State wishes to rely on must be served a reasonable time in advance on the accused. In some cases it may be appropriate to allow an adjournment for the accused to consider its position but it was wholly inappropriate for the State to tender the material towards the end of the witness’s evidence, without prior notice. For obvious reasons the State has had ample time to serve such material before now.
     
109. Whether or not D/S Silas was following what he believed to be the police manual is more relevant to the question of discretion. On the matter of voluntariness the question is not whether D/S Silas believed he was, or indeed was, following police protocol, the question is whether, deliberately or otherwise, the effect of police conduct overbore the will of the accused.
     
110. Whether the Judges Rules (Eng.) are part of the underlying law of Papua New Guinea by virtue of Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea has not been conclusively resolved: State v Mana Turi [1986] PNGLR 121; State v Kiki Hapea [1985] PNGLR 6. In any event a breach does not render a confessional statement inadmissible if it is voluntary, though the court may in its discretion refuse to admit such a statement where there has been a breach of the Rules.
     
111. Neither counsel asked me to have regard to the Rules or made submissions about their effect. Furthermore, it is the Manual D/S Silas said he was relying on not the Rules themselves. Without the Manual I am unable to say whether there was a breach of it but I note from the confessional statement itself that it is a standard witness statement, which only provides for the witness to sign it. If the statement had been endorsed it would have gone to further support D/S Silas’ evidence. The fact that it has not been countersigned does not of itself render his evidence unreliable, nor does it do so in view of my other findings above.
     
112. In summary, I find that on the morning of 26 August 2011 at about 9 am a group of between 5 and 10 armed police officers led by D/S Silas went to the home of the accused, accompanied by co-accused, Chris Loau. Loau exited the vehicle and pointed out the accused from the road. He was holding his ribs at the time. The accused was aware that he had recently had an operation on his appendix. I think the court can take judicial notice of the fact that the ribs and the appendix are not so far apart. D/S Silas followed by other officers entered the property and apprehended the accused at gun point. D/S Silas pointed his weapon at the accused’s chest. The accused’s grandchildren ran away in fear, followed by his wife. The accused was told that they had information he was involved in the murder of John Hulse. The accused confirmed his identity and told D/S Silas “I will cooperate with you guys all the way”. He pointed them to where a gun was buried on the property, which police retrieved. The accused was taken in a police vehicle with armed officers to Boroko Police Station.
     
113. Neither party addressed the issue but it was at the point that police apprehended the accused that they were required to inform the accused of his rights under s 42(2) of the 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,
and shall be informed immediately on his arrest or detention of his rights under this subsection.

114. The accused was no longer free to go and was under police arrest and detention, regardless of whether or not he had been formally charged. A person is arrested when police make it plain to him or her that he or she is not free to leave: State v Wampa [1987] PNGLR 120.
     
115. The apprehension of the accused at his house that morning was by its nature intimidating. No actual force was used. In some cases reasonable force may be required. Those matters in themselves are not determinative of whether any subsequent admission made by an accused is inadmissible for being involuntarily. It will depend on all the circumstances.
     
116. The critical question is whether the will of the accused was overborne at the time he gave the statement to police or whether he has confessed in the exercise of his free choice to speak or be silent.
     
117. In my view, whilst the circumstances of his arrest and detention were intimidating they cannot be said to be overbearing such as to have induced the confessional statement. To the extent that any such inference might be drawn, I am satisfied beyond reasonable doubt that any such inducement or threat was removed by the time the statement was taken.
     
118. In reaching this decision I have taken into account that the accused was not informed of his rights in accordance with s 42(2)(b) and (c) of the Constitution. The accused was not informed that he was permitted to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice. He was not informed of his right to be given adequate opportunity to give instructions to a lawyer of his choice.
     
119. The absence of the full and proper caution is a matter to be taken into account when determining whether a statement is voluntary in the sense of it being made in the exercise of a free choice to speak or be silent. A confession may be voluntary, however, even though the confessor has not been told either expressly or impliedly that he or she has the right to remain silent. It is compulsion or pressure that offends against the common law, not necessarily the absence of a caution: R v Ginitu Ileandi [1967 – 1968] PNGLR 496. Regard may be had to the surrounding circumstances to ascertain whether the accused spoke because of some importuning or threat or whether it was because he or she chose to do so: The State v Kwambol Embogol (1977) N91. Despite improprieties or illegalities, despite the lack of caution, confessional evidence may be admitted if it is established to have given voluntarily: R v Suk Ula [1975] PNGLR 123; Paru.
     
120. In this case the circumstances establish that the accused was promptly informed in a language he understood of the reason for his detention when police arrived at his home in accordance with s 42(2)(a).
     
121. On D/S Silas’ evidence the accused immediately said to them at the house “I will cooperate with you guys all the way”. Whilst neither that, nor the fact he produced a gun buried on the property to police, are determinative on their own, they are relevant factors to be considered in the totality of the circumstances.
     
122. The accused was taken to the station. He was not bound or cuffed, although that would not have been unusual given the nature of the alleged offence.
     
123. At the station it was the accused who told D/S Silas for a second time that he was going to cooperate with them. It was then that D/S Silas asked him if he was prepared to give a confessional statement and the accused said that he would. It was at that point that D/S Silas cautioned the accused as to his right to remain silent. D/S Silas asked the accused if he understood and the accused said that he did. The accused was asked which language he wished to speak in and the accused indicated that he preferred to speak in English before proceeding to give his statement which D/S Silas typed down on the computer. When he was finished the accused read through the statement on the computer before saying “yes that is my statement”. The statement was printed and the accused signed the statement on every page. The accused was taken back to the cell before being brought back sometime later to be formally arrested and charged.
     
124. Whilst the length of time a person is detained prior to given any statement may be a relevant factor to determining voluntariness, there is no suggestion in this case that the accused had been in custody for an extended period before he gave his statement.
     
125. It is unclear how long the statement took. The State failed to address this in evidence. At one point the accused seems to suggest a couple of hours, elsewhere it seems to take longer. I do find that he gave the statement and was taken to the cells at some stage that day before later being brought out and being charged between 4 and 5 pm. The fact that the statement may have taken some time to record is consistent with the evidence given by D/S Silas and the face of the statement itself.
     
126. There is no evidence of persistent questioning. The accused’s evidence is again unclear and contradictory. He says there were questions but then later says he did not say anything, or cannot remember doing so. On D/S Silas’ evidence, he typed down what the accused told him.
     
127. Furthermore, the accused did not give any evidence that had he been informed of his right to see a lawyer or family member he would not have given the statement. Any submission to the contrary is speculative. On the contrary, he was cautioned of his right to remain silent and chose not to.
     
128. I have also had regard to the age, background and psychological condition of the accused himself. Limited evidence was led by the defence as to the background or personal circumstances of the accused. I have however had the advantage of observing him for some time in the witness box in both examination in chief and cross-examination.
     
129. On the evidence the accused is 60 years old, and was about 49 in 2011. At the time of his arrest he was living with his wife and grandchildren at the house inherited from his father in Sabama. He is a former member of the infantry division of the PNG Defence Force and held the rank of corporal at the time he was honourably discharged. Whilst I appreciate that the rank is not a senior one, the fact that he was a former member of the military forces and not a very young man, or an unsophisticated villager, is a relevant consideration. It does suggest some strength of character. Certainly, there was nothing to suggest he was naïve or unsophisticated. My overall assessment of him is that of a mature, intelligent and confident man, and not someone who would be easily influenced. His articulate English speaks to someone who has had the benefit of a good education and some experience of the world. I have said above that his evidence was contradictory but let me make it clear that is not to suggest that he presented as confused or lacking in confidence.
     
130. Whilst I have rejected his evidence about the extent of his illness, I have taken into account that there is some evidence that the accused may have had a fever on the day of his arrest. Whilst illness might have an impact on a person’s judgement, I am satisfied beyond reasonable doubt that the accused’s illness did not affect the accused to such an extent, if at all, as to render his admissions involuntary. Certainly, there is no evidence that his mind was so unbalanced as to render them involuntary: see Jackson v R [1962] HCA 61; (1962) 108 CLR 1.
     
131. Finally, I note the defence submission that the decision by the State to abandon the tender of a crime scene inspection and record of interview demonstrates the wholesale blunder of the investigation team. It is the case that the tender was abandoned and the matters alleged never tested. It is unclear whether a record of interview has ever been produced and it is unclear whether one ever took place. It appears that the crime scene recreation took place sometime after the confessional statement was taken. Whilst evidence of the circumstances surrounding these two matters may have been relevant to the question of admissibility on the statement, it is clear that the confessional statement occurred first in time. Moreover, Silas was not cross-examined on, and for the most part no evidence was led from the accused on the matters. I have referred to any such evidence in my deliberations and otherwise cannot speculate about what other evidence might have been led.
     
132. Whilst not raised in submission, I have taken into account that whilst the police took the accused before the District Court the day following his charging, the accused said that he remained at Boroko Cells for 9 months before being transferred to Bomana. That is completely unacceptable if true. Assuming it is true it does not alter my findings above regarding the evidence of D/S Silas and the circumstances in which the statement was made.
     
133. In the result, I am satisfied beyond reasonable doubt that the confessional statement was given by the accused voluntarily, that is was made in the exercise of the accused’s free choice to speak or be silent. He did not speak because he was overborne. His statement was not the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure. I am also satisfied beyond reasonable doubt that no inducement was made prior to the making of the statement. To the extent that any inducement might be inferred from the circumstances of his apprehension, I am satisfied beyond reasonable doubt that it had been removed by the time that he gave his statement.
     
134. The confessional statement is admissible.
     

CONSIDERATION – EXCLUSION OF VOLUNTARY STATEMENT IN EXERCISE OF DISCRETION

135. The question remains whether I should reject the confession, albeit made voluntarily, on the basis that it was unfairly or improperly obtained.
     
136. For the reasons stated above I consider the defence has failed to establish on the probabilities that any state of illness existed in the accused such as would render it unfair for the confessional statement to be used against him and would call for the exercise of the court’s discretion against its admission in evidence. I don’t accept the accused’s evidence about the extent of his illness. There is nothing before me to suggest that illness affected the reliability of his statement. Any illness on that day was, on the evidence, mild. D/S Silas was not aware that the accused was ill. There was nothing improper in his interviewing him in those circumstances.
     
137. I do not regard the circumstances in which the accused was apprehended at his home at gunpoint as unfair or improper.
     
138. The key issue in this case is the failure of the police to administer the s full and proper caution under s 42(2) of the Constitution. Despite the clear terms of the Constitutional requirements of s 42(2), and numerous statements over the years by the courts, D/S Silas failed to administer the caution at the time he detained the accused, or prior to taking his confessional statement.
     
139. 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 provision 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: Constitutional Reference No1 of 1977 [1977] PNGLR 295.
     
140. In this case the accused was informed at the time, in a language he understood, of the reason for his detention. Whilst he was not informed of his right to communicate with a lawyer, a relative or friend, it was he who volunteered to give a statement, and he did so in the language of his choice. There was no persistent questioning by the investigator, instead it was the accused who told his story, which was freely given after he was informed of his right to remain silent, which he understood. The accused read the statement, acknowledged it as his, before signing each page of it.
     
141. In the circumstances the accused has not established on the balance of probabilities that it would be unfair to admit the statement against him despite the failure to administer the caution under s 42(2)(b)(c). There is nothing to suggest that the circumstances in which the statement was taken affect its reliability.
     
142. Furthermore, I am satisfied on the evidence that D/S Silas’ failure to caution the accused as to his s 42(2) rights was not done in deliberate disregard of the Constitution. It will only be in a very exceptional case that a voluntary confession which it would not be unfair to the accused to admit could be rejected on the ground of the public policy: Cleland v R (supra) the majority of Gibbs, CJ, Wilson and Dawson JJ approving Brennan J in Collins v R (supra) @ 317; Pollard.
     
143. This is not such a case and the serious nature of the allegation warrants the admission of the confessional statement. In all the circumstances I find that it is not unfair to admit the accused’s confessional statement.
     
144. Finally, as above, a trial judge may refuse to admit an admissible confessional statement if its probative value is outweighed by the danger of unfair prejudice to the accused.
     
145. No submission was made by either party on this ground of exclusion. In this case the statement is highly probative to the central fact in issue in this case, namely the participation of the accused in the death of John Hulse. The fact that it contains admissions by the accused in relation to this very issue does not render the statement unfairly prejudicial against him, but does demonstrate the high evidential value of the statement. It is in the interests of justice that the statement be admitted to be considered together with the other relevant evidence.
     

Conclusion

146. In conclusion, I am satisfied beyond reasonable doubt that the statement was made voluntarily, in the exercise of free choice. After careful consideration I have come to the conclusion that I should not exercise my discretion in favour of the accused and that I should admit his statement of 26 August 2011 and I rule accordingly.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused