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Amo and Amuna, Regina v [1963] PNGLR 22 (29 June 1961)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 22 - Regina v Amo and Amuna

[1963] PNGLR 22

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

AMO AND AMUNA

Port Moresby

Mann CJ

22-23 June 1961

27-29 June 1961

CONFESSIONS - Questioning of persons in custody - Threats or promises - Onus of proof “voire dire” - Observations on.

After a small boy had been found dead at a remote plantation, the Accused were forced by the boy’s father (who threatened them with a rifle) to walk ahead of him to his house. He thought that they were in some way responsible for the death. Next day, a Village Constable handcuffed them together: no handcuff key was available and, on the third day, Parry, an Inspector of Police, who had been flown in, separated the two by cutting the links with a bolt-cutter; later when the handcuff key arrived, the bracelets were removed. On the fourth day the Accused were charged before a Stipendiary Magistrate by the Village Constable and flown to Port Moresby. On the fifth day one of them was questioned by the Inspector through an interpreter and, after the usual caution he gave answers which constituted the alleged confession. A synopsis of that confession (in so far as it named the second Accused) was then spoken by Inspector Parry to the second Accused without any overt invitation to him to reply, and the second Accused said “it” was true. He was then cautioned and he said that all of the synopsis was true. The admissibility of both alleged confessions was argued. There was no allegation that any threat or promise had in fact been made.

Held:

(i)       When the admissibility of a confession or admissibility is in issue the onus of proof is on the Crown to exclude any reasonable doubt.

(ii)      The question of exercising discretion to refuse to admit a confession is something separate from the test of strict admissibility.

(iii)     In the absence of evidence to suggest that the alleged confession was induced by any threat or promise, or that there was any other impropriety, the mere fact that the evidence called does not deal with every moment of time during which the Accused had been in police custody does not prevent a finding that the confession was voluntary.

(iv)     As regards the second Accused there was a breach of Rule 8 of the Judges Rules (adapted to the practical situation in the Territory when dealing with illiterate Accused persons) in that he was given the substance of the statement made by Amo, the first Accused, in circumstances which . . . would undoubtedly be understood by him as calling upon him either to reply, or perhaps to supply information to the Police.

(v)      It is not a ground for rejection of a confession that there is uncertainty or disagreement about the terms thereof. This is rather a matter for consideration at the end of the trial.

Semble:

That in a trial before a Judge sitting alone any evidence necessarily and properly called and admitted during the trial is in fact before the trial Judge for all purposes of the trial and it is the Judge’s duty so long as that evidence remains on the record to give such weight to it on questions to which it may be relevant as is proper. Consequently proceedings upon a voire dire cannot be regarded as constituting a separate collateral proceeding.

Cases Referred to:

Attorney-General of New South Wales v. Martin [1909] HCA 74; (1910) 9 C.L.R. 713.

Baldock v. Douglas [1953] WALawRp 13; (1953) 56 W.A.L.R. 82.

Regina v. Bass (1953) 1 Q.B. 680.

The Queen v. Bernard Tinpis of Imaul (unreported, Mann C. J. Madang 27.5.60).

The King v. Bernasconi [1915] HCA 13; (1915) 19 C.L.R. 629 - para. 6.

Bulari, son of Gaio v. The Queen [1960] HCA 70; (1960) 34 A.L.J.R. 266. (sub nom. Gaio).

The King v. Arthur Gardner and Frank Hancox (1915) 11 Cr. App. R. 265.

The Queen v. Gavin and other (1885) 15 Cox C.C. 656.

The Queen v. Hirst (1896) 18 Cox C.C. 374.

Ibrahim v. The King (1914) A.C. 599.

The King v. Jeffries (1947) S.R. (N.S.W.) 284.

Kuruma, son of Kaniu v. The Queen (1955) A.C. 197.

The King v. Lee and others [1950] HCA 25; (1950) 82 C.L.R. 133.

The King v. Lewis and Wilson (1933) 27 Q.J.P.R. 55.

The King v. Livingston (1933) St. R. Qd. 42.

The Queen v. Male and Cooper (1893) 17 Cox C.C. 689.

Martin, A.G. for N.S.W. [1909] HCA 74; (1910) 9 C.L.R. 713.

McDermott v. The King (1948) 76 C.L.R. 501 - para. 31.

Rex v. Mills and Lemon (1947) 1 K.B. 297.

The Queen v. Nichols, Johnson and Aitcheson (1958) Qd. R. 200.

The King v. O’Neill and Ackers (1950) 34 Cr. App. R. 108.

The King v. Pilley (1922) 16 Cr. App. R. 138.

The King v. Reynolds (1950) 1 K.B. 606 - para. 10.

The Queen v. Rose (1898) 18 Cox C.C. 717.

The King v. Silva (1912) St. R. Qd. 198.

Smith v. The Queen [1957] HCA 3; (1957) 97 C.L.R. 100 - paras 3,34.

The Queen v. Thompson [1893] UKLawRpKQB 74; (1893) 2 Q.B. 12.

The Queen v. Tinpis, Bernard, of Imaul (unreported, Mann. C. J. Madang. 27.5.60).

The King v. Treacy (1944) 30 Cr. App. R. 93.

Counsel:

R. Cruickshank for Amo. The Crown must establish affirmatively beyond reasonable doubt that the confession was free and voluntary. He referred to The Queen v. Thompson[xxxiii]¹, Ibrahim v. The King[xxxiv]², Kuruma, son of Kaniu v. The Queen[xxxv]³, Attorney-General of New South Wales v. Martin[xxxvi]⁴. If the Court is satisfied as to voluntariness, then the circumstances of this case are such that it should, in the exercise of its discretion disallow the statements. He referred to McDermott v. The King[xxxvii]⁵, Smith v. The Queen[xxxviii]⁶, and The King v. Lee and Others[xxxix]⁷. There was no interpretation of evidence and the inspector and interpreter having given conflicting accounts of the confessions the evidence should not be admitted.

R. S. O’Regan for Amuna. The admissions were obtained in contravention of Rule 8 of the Judges’ Rules and should be excluded in the Court’s discretion, although that rule could probably never be strictly observed in the Territory. Substantial compliance with it could be achieved by:

(a)      cautioning the prisoner;

(b)      reading out in full the statement of the co-prisoner; and

(c)      not doing or saying anything which might reasonably be described as an invitation to reply.

He referred to Regina v. Gavin and others[xl]⁸, Regina v. Male and Cooper[xli]⁹, Regina v. Hirst[xlii]¹⁰, decided before the introduction of the Judges’ Rules and Arthur Gardner and Frank Hancox v. The King[xliii]¹¹, Rex v. Mills and Lemon[xliv]¹², Regina v. Alfred Pilley[xlv]¹³, Rex v. Livingston[xlvi]¹⁴, and The Queen v. Bernard Tinpis of Imaul (decision of Chief Justice unreported). If Amo’s admission was inadmissible, then Amuna’s admissions were also inadmissible.

Precis.

P. J. Quinlivan, for the Crown. The fact that a prisoner’s statement is made by him in reply to a question put by a police question if he is in custody does not of itself render the statement inadmissible. The King v. Silva[xlvii]¹⁵, Regina v. Nichols, Johnson and Aitcheson[xlviii]¹⁶. It is only in cases where doubt exists that the Crown is called upon to prove affirmatively that a statement was voluntary. He referred to Rex v. Jeffries[xlix]¹⁷, The King v. Silva[l]¹⁸, Thompson v. The Queen[li]¹⁹. The conflict between the interpreter’s recollection and the inspector’s record of the confession goes to weight and not to admissibility. The voire dire is a valid procedure. In the majority of cases on a voire dire the Crown halts its case temporarily and the defence conducts a collateral case. If the Accused is called he does not jeopardise his right to stand mute or to make an unsworn statement in the trial itself.

The Judges’ Rules must be made workable in this Territory. The essential requirement is that the co-prisoner be made aware of what has been said and that it be left to him to decide whether he should make any reply or not.

Cruickshank: Evidence on the voire dire should be considered only on the question of admissibility. Evidence so given should be disregarded on the main issue of guilt or innocence.

R. S. O’Regan and R. Cruickshank instructed by the Public Solicitor.

Cur. Ad. Vult.

MANN CJ:  On 29th June, 1961, the Chief Justice delivered the following written rulings:

The present trial has proceeded to a stage at which I must decide a preliminary question as to the admissibility of certain evidence which has been tendered on behalf of the Crown. The evidence in question consists of a number of statements made by the two Accused individually and statements made by one of them, purporting to incorporate, by reference, statements made by the other or by a police officer.

In substance there are two questions:

(i)       As a matter of law are these statements wholly or in in part admissible as voluntary statements made by the Accused?

(ii)      So far as the statements may appear to be admissible in law, ought they to be rejected wholly or in part, as a matter of discretion?

It has been the practice in the Territory for some time past, to deal with questions of this kind by a procedure loosely referred to as a voire dire. So far as I am aware, it has not been necessary to determine precisely the nature and effect of this kind of procedure in relation to criminal trials in the Territory. It has not appeared to matter very much for, according to the form of proceedings in the Territory (which in almost every case calls for trial without a jury) and by reason of the absence of cases involving imputations of misconduct against police officers, there has not been any occasion for evidence to be given upon the voire dire, which would in any way embarrass the trial Judge subsequently determining the facts in issue.

My predecessor, the late Sir Beaumont Phillips, adhered strictly in many respects, to the procedure appropriate to jury cases when conducting criminal trials, and included in his observance of this practice the normal ritual associated with the voire dire proceedings as employed in the case of a trial by jury. This practice drew from the High Court of Australia, some adverse comment during the hearing of the 1956-1957 case of Smith[lii]²⁰. In his judgment, Webb, J. at page 132, suggested that this degree of separation of functions was, in the circumstances, unnecessary. On the other hand, Williams, J., delivering a fully considered judgment which received the concurrence, in many respects, of the other Justices comprising the majority of the Court, indicates on page 118, approval of the practice of first deciding a question of admissibility on a voire dire and subsequently deciding, as a jury, the question of the weight of evidence.

Williams, J., does not, however, appear to have dealt expressly with the question whether the evidence taken on the voire dire is, without repetition, before the Judge for all purposes.

I do not know that the late Sir Beaumont Phillips regarded himself as strictly bound, as a matter of law, to adopt the voire dire as a special and separate proceeding. His explanation to me, so far as I recall it, was that it served a dual purpose, first as a constant reminder to a Judge that he was not sitting in some kind of summary jurisdiction, and had to exercise functions different in character, stage by stage, to reach a correct and just conclusion; and second, that following this strict procedure was of great assistance to officers of the field staff who were concerned with the proceedings, and had themselves to exercise a variety of judicial and other legal functions, and gained a good deal of useful experience by observing trials conducted in this manner.

The Jury Ordinance of 1907 of Papua, which was considered in Bernasconi[liii]²¹, requires the continuance of the form of practice of trial without a jury in all cases other than the trial of a person of European descent charged with a crime punishable with death. It does not seem to me necessarily to follow that, in form, the presiding Judge is required to exercise separately the functions of Judge and Jury. Nevertheless, a practice which does not interfere with the proper conduct of a trial, or affect the rights of the parties, and which is designed to remind the Judge of the different legal characters of the steps which he is taking is entirely to be commended. The limiting factor is that it does appear to me that in the case of a trial by a Judge sitting alone, any evidence necessarily and properly called, and admitted during the trial, is in fact before the trial Judge for all the purposes of the trial, and that it is a Judge’s duty, so long as that evidence remains on the record, to give such weight to it on questions to which it may be relevant, as is proper.

The present case raises, perhaps for the first time, this precise question; for if all the evidence called, and necessarily called, in relation to the issue of admissibility, is to be regarded as being “in evidence” for all the purposes of this trial, some of this evidence might have a very substantial effect at a later stage; but if this portion of the evidence were considered not to be before me upon the trial of the Accused, on the ground that it was not given otherwise than on a voire dire my ultimate decision might have to be based on a somewhat synthetic selection of the relevant facts of the case.

On the text material available to me, it is difficult to trace the origin of the voire dire or to determine whether it constitutes a separate collateral proceeding. In some respects it bears the character of an inquisition, but this is probably because the same procedure appears to have been applied as a matter of ancient practice, to quite a wide variety of situations. The typical case was the determination of the competence of a witness to give evidence, for any of a variety of reasons. It frequently occurred that the competence depended on questions of fact which, in some cases the Accused would want to contest. But the issue generally had no bearing on the issues raised in this case being tried, and it appears not to have been the usual practice to require the Jury to retire during the hearing of the voire dire. It appears only to have become the practice for the Jury to retire in cases where the very issue raised on the voire dire tended to involve disclosure to the Jury of evidence, the admissibility of which evidence was in issue.

The typical case, of course, is as to the admissibility of evidence of a confession allegedly obtained by improper means. In all other cases, it appears to have been a positive requirement that the Jury should hear the whole of the evidence given upon the voire dire, for this evidence might be of particular value to the Jury when it came to consider the weight of evidence.

These considerations are clearly explained by Lord Goddard, C.J. in Reynolds[liv]²². Trials have been set aside on appeal, on the ground that evidence of this character, properly before the Court, was excluded from the consideration of the Jury. It is to be noted that in these cases the evidence was not called for the purpose of assisting the Jury at all, but it was recognized that if it was properly called upon the trial for another purpose, and would have a material effect upon the questions being considered by the Jury, the Jury should hear that evidence

It appears to me that the proceedings upon a voire dire cannot be regarded as constituting a separate collateral proceeding, but that the true position is that where part of the Court consists of a jury with a special function in relation to determination of the facts, and where the Judge has the special function of determining the question of admissibility, it is possible as a matter of practice to separate these functions. That possibility has led to the exceptional position of the Accused as a witness in cases involving involuntary confessions and the like, being recognized, and the Accused being given the special privilege of having this part of the evidence heard in the absence of the Jury, to avoid a special risk of prejudice. It appears to me to be a departure from principle, but one which is justified in practice by the considerations mentioned by Lord Goddard, C.J. in Reynolds[lv]²³ at page 611.

Translating these principles to the situation in the Territory where there is no jury, I think that it is not possible to say that certain evidence is before a Judge for one purpose and not another. I think that therefore evidence called on a voire dire is before the Court for all purposes. I had previously thought that the situation could be met in such a case, to this extent, that if a Judge came to the conclusion that a confession was not admissible, he could strike out from the record any evidence relating to the confession, including any evidence given as on a voire dire, but it now seems to me that this is not possible, and that it must appear on the record that certain evidence was tendered and rejected, and that the evidence upon which that decision is based must be on the Court record and before the Court.

It appears to me, therefore, that the expression voire dire has no effect such as has been suggested. The words voire dire appear to have been adopted in practice from the early form of oath administered on these occasions in a wide variety of cases, and the only reason for giving the procedure a name appears to be to signify that the Court is embarking on an inquiry, which is not necessarily based on any issue between the parties, and may be of the Court’s own motion.

It seems to me that I am not at liberty to depart from the proper course of a trial simply on the ground that the Accused may be in a less favourable position if I do not do so. The same applies if the supposed prejudice would fall upon the Crown. The situations which arise upon a voire dire, may arise in all courts, and a special privilege extended to the Accused in cases of trial by jury, to avoid possible prejudice in that tribunal, cannot become a general right so as to govern the conduct of every trial before another kind of tribunal.

I come to the first of the two major questions now before me - Whether as a matter of law certain statements are admissible? This question arises in two parts. At Common Law the question would be - Was this a voluntary confession or admission made by the Accused? To this must be added the negative corollary now expressed in Section 68 of the Evidence and Discovery Ordinance 1913-1957 of Papua, which provides that:

“No confession . . . . shall be received which has been induced by any threat or promise by some person in authority and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

On this question, the onus of proof is on the Crown and the Crown must exclude any reasonable doubt. The circumstances so far as material to this question were that the deceased boy, Kevin Kassman, aged about eight years, went for a swim near his home, with the two Accused who were employed on Mr. Kassman’s plantation as plantation labourers. They are members of a very primitive group of Natives, broadly classified as “Goilalas”, and it would be surprising if they had any degree of education or industrial skill. They were apparently employed as unskilled labourers.

Some time later Kevin’s absence was noticed by his father, who went down to the beach and found the two Accused, who had recently emerged from the water after their swim. After some conversation which is not material, strenuous efforts were made to recover the boy’s body from the water, and it was subsequently recovered in circumstances suggesting that he had been drowned. The Accused, Amuna, had said that Kevin had got lost in the sea, and apart from this Mr. Kassman had had no account of what had been going on.

All the native labourers, including the Accused set to, willingly, to help find the boy’s body, and when it was recovered with the aid of a fishing net, and brought to the beach by Mr. Kassman, all the Goilalas ran away and headed for the bush. In European society, this would no doubt be regarded as extraordinary behaviour in the circumstances, but to Natives from any part of the Goilala Subdistrict, grim experience has shown that parents and close relatives overcome by grief at the sight of the body of their dead child or relative, are extremely likely to relieve their feelings by making an immediate attack, usually with fatal consequences, upon anybody within reach who is not a close relative. This behaviour on the part of all the Goilalas prompted Mr. Kassman to go quickly to his jeep and take out a rifle, which was not in fact loaded, and point this at the Goilalas, commanding them to return. The two Accused who were thought to be most directly responsible, were taken back to the homestead and kept on the verandah overnight in a position in which they could not easily escape, and were no doubt afraid to do so. Next day they were taken into custody by a Village Constable who had travelled some distance for the purpose, and they were handcuffed together with a pair of old-fashioned handcuffs which could be locked in position by pressing against a spring, but could not be unlocked (except by experienced criminals and others with an aptitude for these things) without the aid of a key which unscrewed the spring-loaded plunger mechanism.

As a means of preventing corruption on a local scale, it is apparently the practice not to issue local Village Constables, who have power to arrest, with the necessary key, so that before an arrested person can be released from his handcuffs, it is necessary to take him to the nearest Government Station.

Inspector Parry was sent by air with a Government Pathologist, to a plantation near the Kassman’s plantation, and the two Accused were kept waiting whilst the pathologist conducted an autopsy.

Counsel for the Defence, perhaps taking a long-range view, objected to evidence as to the cause of death, and on the ground that it was not relevant to the present charge, I upheld the objection; nevertheless it appears that when the actual cause of death was ascertained, the situation of the Accused as persons being held in custody, underwent an obvious change. Inspector Parry asked the Coronor to come by air and, being unable to remove the handcuffs without a key, also asked that a key be sent so that he could release the Accused from their handcuffs. At this stage, Inspector Parry found that he was able to obtain a pair of bolt-cutters and, pending the arrival of the key, used this to enable the two Accused to be separated, either for the purpose of allowing them to be separately questioned, or to afford them a little comfort after their long period bound together.

It does not appear that the Accused were at any stage told that they were free to go, and I think that their view would be that they were still being held in custody, charged in some way with responsibility for the death of the boy, Kevin.

Whilst still at the hospital, a conversation took place between Inspector Parry and the Accused, Amuna, and Mr. Parry gave evidence of this. The conversation appears to me to indicate that Amuna, who had in all probability heard some views as to the cause of death from the group of people standing about the hospital, was trying to convey to Inspector Parry, by a mixture of Pidgin (in which there was no reason to suppose he had any proficiency) and gestures, that the boy had died, not because of an injury, (which Mr. Kassman had been emphasizing in his questions) but because of something to do with his lungs. Mr. Parry, who had taken considerable trouble to protect the Accused, explained to Amuna the difficulty about the handcuffs. Amuna tried to say something in a language which Mr. Parry took to be Motu, but which Mr. Parry, having recently arrived from New Guinea, could not understand. Accordingly, arrangements were made for Mr. Evan Cleland, the manager of a nearby plantation, to act as interpreter. Much later that day, at about 7.30 p.m., Mr. Parry interviewed the two Accused separately, using Mr. Cleland as an interpreter. Mr. Cleland speaks fluent Motu, but has no recollection of the details of the conversation. He recalls that, at one stage, he gained the impression that Amo could not understand Motu, which is not his language, and the device was employed of getting Amuna to speak to Amo to get his answers. Amuna was not called to verify his interpretation to Amo.

At the outset, Inspector Parry took the precaution of seeking to negative any possible persuasion which might have been given to the Accused by the native Village Constable, and warned both the Accused after the usual manner. In the conversation that followed, so far as material up to the present time, Amuna said that the boy Kevin had proposed going for a swim and taking Amo to overcome some objection which the boy’s father might have had to his going with Amuna alone. While they were swimming, the two Accused were some distance away from Kevin and when they looked they could not find him. Amuna said that another Native was swimming some distance away. This part of the evidence was not completed at this stage of the hearing.

After the arrival of the Coroner, who is also Resident Magistrate at Port Moresby, the two Accused were charged with assault, on an information laid by the Village Constable, and were remanded in custody for fourteen days to appear at Port Moresby. The two Accused were separately brought back to Port Moresby, in a light aircraft which was not capable of carrying the whole party in one journey, and taken to the Police lock-up. Next morning, on the 26th April (that is some four days after the death of the boy Kevin) the two Accused were brought in separately to the Police Station and interviewed by Inspector Parry. An experienced Police Sergeant, Raufun, acted as interpreter, but one curious circumstance is that although he could give his evidence quite well in English, Inspector Parry spoke to him in Pidgin and Sergeant Raufun then interpreted from Pidgin into Police Motu.

Inspector Parry initiated the conversation which took place, and at the outset made it clear that it was his intention to ask some questions. Amo, who was brought in first, according to Inspector Parry’s account, played the opening gambit, immediately after the preliminary warning, by making a gesture with his hand. Inspector Parry then merely asked Amo what he meant by his gesture, and by his subsequent explanations, and in the result Amo made statements which would amount in substance to an admission of the offence charged against him. One curious feature of this whole conversation, is that if two or three words were changed Amo’s statement could be taken as a clumsy description of an attempt by Amo and Amuna to save the boy’s life by preventing him from choking after he had vomited. The Crown Prosecutor disclosed in his opening that the actual cause of death was asphyxiation as a result of vomiting after a very heavy meal, but Counsel for the Defence successfully objected to evidence as to this being given by the pathologist.

After the conversation with Amo, Amuna was brought into the room, and Inspector Parry gave him a very fair precis of what Amo had told the Inspector. There is, however, one important departure in the order of events described by Amo, which may not have attracted Amuna’s attention. That is, that according to Amo the statement that Kevin had vomited into the sea, appears likely to have occurred at a much earlier stage than it would appear to have occurred in the precis given by Inspector Parry. Amuna said that Inspector Parry’s version of what Amo had said, was true and, after the usual warning, Amuna repeated his assertion to the effect that all of what Amo had told the Inspector was true.

After this conversation the two Accused were charged with the murder of the boy Kevin and there the conversation ended.

Sergeant Raufun was called on the voire dire proceedings, to verify his interpretation, and he also gave a very graphic account of the conversations with Amo and Amuna. His version of these conversations differs to a marked degree from Inspector Parry’s version. It may be that the gestures conveyed by Amo conveyed far more meaning to Sergeant Raufun than they did to Inspector Parry, for Natives are often much less demonstrative in making gestures, and attach much more meaning to them, than is common amongst Europeans. Taken altogether, however, it may be said that without much distortion of the language, Inspector Parry’s version could be taken as describing an attempt to save the boy’s life when he was suddenly overcome by a vomiting attack in the water, whereas Sergeant Raufun’s version of the same conversation conveys the impression that the two Accused manhandled the boy Kevin so violently, for the purpose of committing acts of gross indecency upon him, that it would be difficult to avoid the conclusion that their behaviour brought on the vomiting attack and that in all probability the boy was drowned while they were carrying out their indecent purpose.

Turning now to the main aspect of the first question as to whether the statements made by the Accused were voluntary or were induced by any threat or promise, it appears to me that the statements were of a voluntary character. Mr. Parry went to a lot of trouble to negative any threat or inducement which may have been offered by the Village Constable and the Village Constable himself has expressly denied anything of the kind. There is a small gap of time during the return journey by air from Aroa to Port Moresby, during which the Crown has not as yet expressly negatived any possibility of a threat or inducement, and the Crown had intimated, earlier in the case, that it proposed to call for this purpose the Police Sergeant who, at this stage, was in charge of Amuna. It was argued that because of this gap, the Crown had not discharged its onus of proof, but I think that since there is no evidence to suggest, so far, that at any stage threats or promises were made, and since practically the whole period has been expressly covered without any suggestion, in cross examination, of this degree of impropriety, there are no circumstances which would raise to my mind any doubt as to the voluntariness of the statements made by the Accused, in this sense. There is no reason to suppose, so far, that the statements were made otherwise than on the volition of the Accused.

Another point which arises on this question, however, seems to me to be fraught with much difficulty. That is whether it has been proved what the statement was that was made by the Accused, and whether this is a question for me to determine upon a voire dire or whether it is a matter of weight of evidence, which I should decide at a later stage. The question arises from different versions given by Inspector Parry and by Sergeant Raufun of the conversations. Considered in the light of common experience in the Courts and the very great margin of error which is commonly present in cases involving somewhat unskilled interpretation through native languages, and perhaps especially when any stage in the interpretation involves the use of Police Motu or Pidgin, the question seems to come down to this - Assuming that what was said was voluntary and is admissible, am I satisfied beyond reasonable doubt that these are the actual words that were said? It seems to me that this is a question to be determined at a later stage, for once it is determined that a statement was voluntary, it may well be that by the end of the trial several versions of what was said will be in evidence. Accordingly, I leave this question to be determined later, on a view of the evidence as a whole.

I now come to the second question - Whether as a matter of discretion the alleged statements should be rejected? I do not think that it is a ground for rejection that there is uncertainty or disagreement about what was said. On the first question, the inquiry involved consideration of the volition of the Accused, and the actions of the Police, and the question arises whether both these matters also fall for consideration when the question becomes one of discretion. I think that they do, for although when one refers to the Judges’ Rules the emphasis is on the conduct of the Police, it seems to be clear that the discretion to reject a statement may arise from circumstances not attributable to any conscious action of the Police, but to factors such as tiredness and lack of capacity in the Accused to do justice to himself. I think that it is clear from some of the dicta, that all the circumstances are to be looked at, and from the explanation of Dixon J. (as he then was) in McDermott[lvi]²⁴ that the present practice is not to be regarded as depending for its origin on any legal operation of the Judges’ Rules. It may well be that this question overlaps the first considerably, and may merely be, or soon becomes recognized as, an extension of the Common Law test of voluntariness.

In the Territory the practice is well-established of regarding the question of discretion as something separate from the test of strict admissibility, and in cases involving Natives it does seem convenient in practice to reserve this question for separate consideration, for whereas in a normal case involving Europeans, there may be a clearer inference that a statement was voluntary, often under similar circumstances the primitive Natives with no real understanding of their legal rights and a very common notion that they must, or at least a traditional desire that they should, try to comply with the apparent wishes or expectations of anybody in authority, the same inference may not be drawn so readily.

On this question of discretion, I think that the argument submitted by Mr. O’Regan on behalf of the Accused Amuna is right, and that it was a breach of Rule 8 of the Judges’ Rules (adapted to the practical situation in the Territory when dealing with illiterate accused persons) for Inspector Parry to give to Amuna the substance of the statement made by Amo, in circumstances which I think would undoubtedly be understood by Amuna as calling upon him either to reply, or perhaps to supply information for the Police.

Further, I think that it is a valid objection that Amuna only adopted by reference a statement which he had not heard, but was conveyed to him in the form of a precis. So far as he adopted Mr. Parry’s precis as a true statement, I think that the answer should be considered as having been given to a long and difficult question interpreted through Pidgin and Police Motu with, in this case, an unusually high risk of error. Apart altogether from the question of what was said, I think the circumstances in which this statement was made, give rise to some of the same considerations of doubt which were expressed with considerable emphasis by Taylor, J., in Smith[lvii]²⁵ (supra). Whether in strictness I should say that I am not satisfied beyond reasonable doubt that this statement is attributable to the volition of Amuna, or whether I should say that since it was obtained in breach of the Judges’ Rules and in circumstances giving rise to considerable doubt whether it would be fair to admit this statement against the Accused Amuna, I think the result is the same, and in the Territory I think it preferable that I should express it in the latter form.

In the case of Amo, the position is not so clear. There is, so far as I can see, no substantial breach of the Judges’ Rules, for although some questions were asked, they were at least in form designed to clear up something said or indicated by Amo which was uncertain in meaning. It is extraordinary that Amo, who does not appear to speak or understand Motu readily, should suddenly decide to volunteer information to the Police on the fifth day of his custody under accusation of murder. On all previous occasions Amuna had taken the lead and acted as spokesman. It seems to me, however, that there is no sufficient reason for me in the exercise of my discretion, to reject the evidence against Amo. To express it the other way; having examined the question from the point of view of the exercise of discretion, I see no reason to place any qualification upon my finding that the statement was made voluntarily. I think that the question of interpretation, and in general the value of such a statement given in those circumstances, are matters for consideration at the end of the trial.

In the result, I think that I should now allow the objection in respect of the evidence against Amuna. I think that the evidence against Amo should be admitted, and with it the evidence taken upon the voire dire, so far as it relates to the circumstances under which Amo’s statement was made. This latter evidence, I think, is material in considering the weight to be given to Amo’s statement and I think that it would be wrong to strike it from the record.

Since Counsel were under the impression, in the light of the more elaborate practice followed by the late Sir Beaumont Phillips in relation to voire dire proceedings, that evidence given upon a voire dire is not before the Court on the determination of the facts of the case, except to the extent to which the evidence may be actually repeated or otherwise admitted into evidence at the conclusion of the voire dire proceedings, it is possible that they may have been misled into eliciting evidence by questions which would not otherwise have been asked. If either side has been prejudiced by this circumstance, I think it might be proper for me to give the opportunity to Counsel to ask that the case be adjourned, so that it may be heard by another Judge. Although as I have said during argument, there should not be the slightest difficulty for a Judge to exclude entirely from his conscious mind, evidence not properly before him I appreciate that there is some justification for the view that it is not certain that Judges will always be as successful in removing such considerations from their subconscious minds or emotional reactions. If, therefore, Counsel has been misled into placing any material before me which could operate to the prejudice of either side, I will consider such an application, but, at the moment, I have no impression that any such prejudice is possible.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Defence: W. A. Lalor, Public Solicitor.

[xxxiii]1893 2 Q.B. 12.

[xxxiv]1914 A.C. 599.

[xxxv]1955 A.C. 197.

[xxxvi]1910 9 C.L.R. 713.

[xxxvii] 1948 76 C.L.R. 501 para. 31.

[xxxviii][1957] HCA 3; 1957 97 C.L.R. 100 paras. 3, 34.

[xxxix]1950 82 C.L.R. 133.

[xl]1885 15 Cox C.C. 656.

[xli]1893 17 Cox C.C. 689.

[xlii]1896 18 Cox C.C. 374.

[xliii]1915 11 Cr. App. R. 265.

[xliv]1947 1 K.B. 297.

[xlv]1922 16 Cr. App. R. 138.

[xlvi]1933 St.R.Qd. 42.

[xlvii]1912 St.R.Qd. 198.

[xlviii]1958 Qd.R. 200.

[xlix]1947 47 S.R. (N.S.W.) 284.

[l]1912 St.R.Qd. 198.

[li]1893 2 Q.B. 12.

[lii]97 C.L.R. 100.

[liii]19 C.L.R. 629.

[liv]1950 I.K.B. 606.

[lv]1950 I. K.B. 606.

[lvi] 76 C.L.R. 501 at pages 512 et seq.

[lvii][1957] HCA 3; 97 C.L.R. 100.