SC1632

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 6 0F 2016

BETWEEN:
JAMES PARU
Appellant

AND:
THE STATE
Respondent

Waigani; Injia CJ, Ipang & Lindsay JJ
2017:  30th October, 3rd November

CRIMINAL LAW - Practice – Voir Dire hearing- Notice of voir dire and grounds of objection- Duty of trial judge to ensure voir dire hearing conducted in accordance with established principles of practice on voir dire hearing.

Cases cited:

Constitutional Reference No. 1 of 1977 [1977] PNGLR 295
Charles Ombusu v The State [1996] PNGLR 335.
McDermott v The King (148) 76 CLR 501
R v Gitinu Ileandi [1967-68] PNGLR 496
R v Suk Ula [1975] PNGLR 123
State v Kusap Kei [1983] PNGLR 263
 State v Kereluto Bruce Seto (2209) N3744
 State v Lucas Youve (2013) N5122
State v Balama (2007) Unreported CR 552 of 200
  State v Ereman Kanaihom (2008) N3273
 State v Yakinawa Maka (2014) N5816
 State v Joanes Mesek (2005) N2853  
  State v Eposia Rupen (2012) N4818 
 State v Linus Rebo Dakoa (2009) N3586.

Counsel:

J W Tamate, for the Appellant
P Kaluwin with T Aihi, for the Respondent

3rd November, 2017
1.	BY THE COURT: This is an appeal against conviction for the offence of wilful murder. The only evidence supporting the conviction was the accused's (now appellant) written confessional statement made at the police station shortly after he was apprehended from his house and taken to the police station.  The appellant contested the voluntariness of his confession and a voir dire hearing was conducted. The trial judge admitted the confessional statement into evidence. This appeal concerns that decision. The accused also contested a crime scene report compiled by the police after the accused visited the crime scene with the police. The crime scene visit occurred after the accused gave the confessional statement. The trial judge rejected the report for the reason that the accused was denied his right to speak to a lawyer given by Section 42 (2) of the Constitution. No question arises from that ruling in this appeal. 

2.	 The only ground of objection to the confessional statement raised by counsel for the accused at the commencement of the trial was that he was denied his right to see a lawyer given by Section 42 (2) of the Constitution.  During the voir dire hearing, the accused introduced other grounds of objection and were determined by the trial judge. Those were that although he was cautioned he was not given the opportunity to respond to the question put to him by the police investigating officer if he understood the caution;  that he fell ill after he was apprehended at his house and was not thinking straight;  and, that he was not given the opportunity to read the confessional statement before he signed it. The trial judge found that although the accused was denied his right to see a lawyer, the confession was given freely. 

3.	In this appeal, the parties argued before us the four grounds of objection to the confessional statement that were argued at the trial. Both parties agree and we accept,  that in determining the voluntariness of the confession, it is open  for this court to consider all the grounds of objection raised and determined by the trial judge.

4.	The principles on a criminal conviction that is based on a confession and the voluntariness of a confession are settled. A criminal conviction may be supported by a confession alone if the confession contains clear admissions that satisfy each element of the offence and beyond reasonable doubt. The onus rests on the prosecution to negative any doubt on the confession that goes to any element of the offence that may be fairly raised by the accused. The duty of the trial judge is to satisfy himself or herself that the confessional statement is complete in that it satisfies the elements of the offence to the required criminal standard of proof.

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

6.	There is a duty on the Court and counsel assisting the Court have a duty to conduct the voir dire hearing in accordance with established principles of practice and procedure. The accused must give prior written notice of the voir dire that sets out the grounds of objection and sufficient time must be given to the prosecution to prepare itself. We are aware that unlike a notice of alibi that is required to be given under the Criminal Practice Rules 1987, there is no provision in those rules for a notice of voir dire. However, as a matter of good practice and in the interest of natural justice, the practice of giving written notice of voir dire is well established and support is found in judicial pronouncements made by the National Court in many cases. We refer to some of those cases.  It is a standard practice for a notice of voir dire to be given, even when it is not asked for by the prosecution: State v Kusap Kei [1983] PNGLR 263; State v Kereluto Bruce Seto (2209) N3744; State v Lucas Youve (2013) N5122. Ample notice must be given, otherwise the trial should be adjourned to give time to the prosecution to prepare itself and to call additional witnesses if necessary: State v Balama (2007) Unreported CR 552 of 2007 published on PNGINLAW database.  The Notice of voir dire should state the ground(s) of objection and evidence should not be led on grounds that are not pleaded in the notice:  State v Ereman Kanaihom (2008) N3273; State v Yakinawa Maka (2014) N5816; State v Joanes Mesek (2005) N2853. Notice of voir dire may be amended with leave of the Court to plead additional grounds of objection:  State v Eposia Rupen (2012) N4818. In the exercise of discretion the Court may allow the accused to depart from the grounds of objection and introduce new grounds: State v Linus Rebo Dakoa (2009) N3586.

7.	In summary, the accused or his counsel who proposes to object to a confessional statement must be made on grounds that are clearly spelt out in a notice of voir dire, that is given well in advance, to the prosecution. The voir dire hearing should be conducted strictly along those specified grounds. The Court is duty-bound to disallow an objection raised at the commencement of the trial without prior notice. If the accused is allowed to introduce objection without prior notice to the prosecution, and worst still, if other grounds of objection are introduced in the course of the voir dire hearing, there is a duty on the trial judge to manage the case in a way that the prosecution is not prejudiced. It is the duty of  the trial Judge to clearly isolate the distinct grounds of objection and the evidence in support or against the particular ground of objection and determine each of them by applying established principles of practice and procedure and the required standard of proof.  If the hearing and determination of issues in the voir dire is not conducted in this manner, there is  a real risk that the voir dire hearing will be distorted, errors will occur and a mistrial eventuates.

8.	In the case before us, there is no suggestion that a prior notice of the voir dire was given and that when objection was raised at the commencement of the trial, there was only one ground of objection raised under Section 42(2) of the Constitution. The judge failed to ascertain if a notice of voir dire had been given prior to trial. The judge then allowed other grounds of objection to be introduced and determined them in favour of the prosecution. 

9.	We have heard extensive arguments of counsel before us on the trial judge's findings and conclusions reached on the confessional statement. The trial judge gave detailed reasons for rejecting the grounds of objection. 

10.	Considering all these matters in their totality, we conclude that the trial judge erred in three respects: Firstly, the voir dire hearing which determined the admissibility of the confessional statement was not conducted in accordance with the practice and procedures on voir dire that we have referred to. The trial judge did not ascertain from the parties if notice of voir dire had been given and if so, the grounds of objection contained therein. The defence counsel made an incomplete reference to Section 42(2) of the Constitution and did not elaborate the complete ambit of that objection. The evidence led or adduced from State witnesses on the ground under Section 42 (2) of the Constitution led to seeking out evidence on the other three grounds. In the end, the evidence in relation to all four grounds of objection were distorted and no clear determinations in some logical sequence is shown in the judgement of the court.

11.	Secondly, there are also other circumstances under which the confessional statement was made that needed to be closely examined to see if the confessional statement was voluntary.   The trial judge overlooked or failed to make clear determinations of the following pertinent matters:-

(1)	  Breach of Section 42 (2) of the Constitution: the accused's right under Section 42(2) of the Constitution, which the trial judge found was denied, was connected with the accused's claim that if he had been given the opportunity to see a lawyer, with the benefit of legal advice, he would have understood the caution that was administered to him and chosen not to give the confessional statement.  

(2)	 The timing of the confessional statement:  The accused was picked up at his house at 9 am in the morning and taken to the Boroko Police Station by several policemen, which took some time.  He gave his statement at the police station and was reduced to writing, typed and signed at 9:30am. The practicality of the steps taken to obtain the statement, reduced to writing and signed by the accused all in a short space of time was not considered

(3)	Understanding the confessional statement:  The accused said the content of the statement was not read to him for him to understand before he signed it. This was not fully considered.

(4)	Signing of confessional statement: The statement was not counter signed by the policeman who took the statement and the other two policemen who accompanied him when the statement was signed. This was not considered.

(5)	Caution: The confessional statement contains the caution. There is no record in the statement of the accused's answer when he was asked if he understood the caution that was administered to him. 

(6)	 Self defence: He said in his statement he shot the deceased in self defence when the deceased took out his pistol to shoot him. Whether he acted in self defence was not fully considered.

(7)	Accused's physical condition: He said he fell ill after the police picked him up and was not in his right frame of mind. This was not fully considered.

(8)	Connection between rejection of crimes scene visit report and confessional statement: The trial judge rejected the crimes scene visit report because the accused was not accorded his right under Section 42 (2) of the Constitution. The failure to administer the accused's right under  42 (2) of the Constitution right was the main focus of the accused's objection to the confessional statement- that his ability to understand the caution was impaired by the lack of legal advice flowing from the denial of his right to see a lawyer before he gave his confessional statement. The trial judge failed to clearly consider fully if the denial of his right to see a lawyer before giving the confessional statement had any real impact in the exercise of his choice to give the confessional statement, as it was found to be the case with the accused's participation in the crime scene visit report. 

(9)	Established principles on voi dire hearing: None of the established principles of practice and procedure on voir dire established by case law including those we have referred to were considered and applied in the determination of issues in the voir dire hearing. 

12.	Thirdly, after the trial proper, the trial Judge did not examine the confessional statement to see if it was complete in that it satisfied all the elements of wilful murder. For instance, the confessional statement did not contain any clear admission of intention. A passing mention that the killing was cold blooded and intention to kill is made in the judgment. The judgement fell short of a clear determination on inferred intention.

13.	For the foregoing reasons, we are satisfied that there occurred errors  committed by the trial judge in the conduct of  the voir dire hearing on the confessional statement that was based on lack of prior notice of voir dire and in allowing other grounds of objection not mentioned by the accused at the commencement of the trial, to be introduced. The voir dire hearing that followed was distorted which vitiated the quality of the entire voir dire hearing. We are also satisfied that as a result, the final verdict was unsafe and unsatisfactory. We will allow the appeal against conviction and order that the matter be remitted to the National Court for a re-trial before another Judge, the reason being that there occurred a procedural error in the conduct of the voir dire hearing on the confessional statement that vitiated the voir dire hearing: Charles Ombusu v The State [1996] PNGLR 335.  The accused will remain in custody pending the re-trial.

14.	The formal orders of the Court are :

(1)	The appeal against conviction is allowed.
(2)	The conviction and sentence are quashed
(3)	The matter is remitted to the National Court for a re-trial before another Judge.
(4)	The appellant shall be remanded in custody pending the re-trial.
________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent