Toronome, Regina v [1963] PNGLR 55 (9 April 1962)

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CRIMINAL LAW - Wilful murder - Admissibility of confession-voluntariness - Procedure for determining admissibility where trial before Judge without jury - Applicability of hearing on “voire dire”.

On a charge of wilful murder the Crown sought to adduce in evidence an oral confession the admissibility of which was challenged. The question of admissibility was heard as if upon the voire dire.

(1) The common law as to admissibility of confessions as interpreted by Australian authorities applies to the Territory of New Guinea and is not ousted, incorporated or otherwise affected by Section 15 of the Evidence Ordinance 1934-1957 except to the extent to which that Section deals with the effect of preceding threats and promises upon ensuing confessions. (Judgment on voire dire of His Honour Chief Justice Phillips in The Queen v. Smith delivered in Rabaul in July, 1956, followed.)

(2) Such common law so interpreted excludes a confession unless it has been made voluntarily in quite a broad sense and the test is in appropriate circumstances whether the Accused confessed in the exercise of a free choice, understanding that he had such a choice, and not overborne against his will in the circumstances of his interrogation by all or any of those persons who were present.

(3) In the circumstances the Crown had not discharged the onus of establishing that the confession of the Accused was voluntary and the confession was inadmissable.

(4) Where the trial is before a judge without a jury it is unnecessary for the Crown to follow the voire dire procedure strictly. If the confession is admitted, evidence received on the question of admissibility need not again be adduced but may become evidence in the trial unless objected to as such and rejected.

Where the Accused was taken to a patrol post by a Luluai who there told a Patrol Officer in the Accused’s presence that the Accused had committed the killing, and the Patrol Officer and also the Luluai then told the Accused not to leave the patrol post, and the only alternative to remaining as instructed was to become an outcast in the bush, those instructions were as effective as physical restraint and the Accused was in custody.

Toronome was charged with the wilful murder of Tolukas Tombartabul at Tokumbar near Rabaul on or about 17th December, 1961. Evidence of an oral confession by the Accused to a police officer in the presence of others was led and objection to its admissibility was taken by the Defence. The question of admissibility was argued as if upon the voire dire and the following written judgment was delivered. On receiving the judgment the Crown entered a nolle prosequi. McKillop appeared for the Crown and Germain for the Defence but submissions of counsel other than as appeared in the judgment are not available.

OLLERENSHAW J: The Accused is charged under Section 303 of the Code that he unlawfully killed Tolukas Tombartabul of Tokumbar.

Mr. McKillop, before opening for the Crown, announced that the only evidence available in support of the charge, apart from undisputed evidence of the death of Tolukas, was evidence of an oral confession made by the Accused to an officer of police in the presence of other witnesses. Mr. Germain, Counsel for the Accused, had informed him that it was his intention to object to the admission of this evidence and so at the appropriate stage in the evidence of the police officer, after objection had been taken and the officer’s evidence in relation thereto had been completed, he would call two other witnesses who were present at the time the confession was made, for the purpose of having the question of its admissibility determined. The other witnesses, he said, were Bulolo, a police constable, and Tingai, a native of Tokumbar, who interpreted the confession to the officer.

In due course Mr. Germain took his objection and so brought up the question of admissibility, which was then heard in the trial as if upon the voire dire, evidence of the confession being led subject to objection.

It is true that the question of admissibility is for the Judge and that when there is also a jury it should be determined, not only as a collateral question, but, also, usually, in the absence of the jury: Sinclair v. The King[lxvii]¹, per Latham C.J. at p. 321; Cornelius v. The King[lxviii]², per Dixon, Evatt & McTiernan JJ at p.p. 248-249.

However, it does seem to me that to follow the voire dire procedure strictly, when the Judge is, in truth, both Judge and jury would be, in many cases, a time-wasting affectation involving the reception and cross-examination of evidence twice over. Such a course was considered to be unnecessary by Webb J. in Smith v. the Queen[lxix]³.

It may be that in the event of the admission of the confession so that the evidence given of and concerning it upon, what I may call the quasi-voire dire, becomes evidence in the trial itself, there would be, possibly, some evidence given in the course of the voire dire, which, notwithstanding the admission of the confession itself, would not be admissible in the trial. This problem, if problem it be, to my mind is readily resolved by Counsel objecting, at the appropriate stage, to such evidence as evidence in the trial. Inasmuch as the value of the confession, nothwithstanding its admission, still is an open question and evidence of the circumstances in which it was made is admissible in the trial for the consideration of the Judge as a jury in determining what weight should be attached to it, the quantum of evidence admissible upon the voire dire but inadmissable in the trial usually would be small.

The general ground of Mr. Germain’s objection was, at this stage, that the confession had been induced by the native interpreter, Tingai, who, he submitted, in the circumstances of the confession was a person in authority. In answer to my question he preferred not to say whether the inducement was alleged to have been by threat, promise or pressure but he did indicate that the allegation was made against Tingai alone and that, in the light of his instructions, he was not embarking upon a mere fishing expedition.

I will endeavour briefly to summarize the evidence that was forthcoming in so far as I consider it to be material to the matter to be determined by me as a Judge, namely the admissibility of the confessional evidence.

On the morning of Sunday, 17th December, 1961, Tolukas, suffering seriously from the effects of violence to his person but still alive, was found in the open on the outskirts of the village of Tokumbar. Towalubia, the Luluai of Tokumbar, promptly arranged for his conveyance to Nonga Hospital in the village vehicle and under the care and supervision of Tingai.

The Luluai and Tingai figured prominently in the subsequent events which led up to the Accused’s confession. Tingai had spent some five years in the Pacific Islands Regiment and his contacts with Europeans, knowledge of pidgin-English and a natural inclination towards affairs of importance had made him a useful assistant to the Luluai. There was evidence that, although the Luluai had used him for the purpose of discoursing with officers of the Administration, who visited the village from time to time, previously he had not been employed in the investigation of crime.

At or about the time of the discovery of the moribund Tolukas suspicion turned to the Accused person, Toronome, probably from information supplied by his wife. The Luluai, who seems to have had command of the situation in the village, took Toronome, doubtless in the exercise of his powers of arrest and so forth, as Luluai, under Regulation 120 of the Native Administration Regulations, in the same vehicle which Tingai was taking Tolukas to Nonga Hospital. The road from Tokumbar to Nonga runs through Vunadadir Patrol Post and the Luluai quitted the vehicle with Toronome at this post. He also took there the two persons who had found Tolukas that morning.

The Luluai’s attitude to Toronome may be summed-up in his reply in evidence to the question why he had taken Toronome to Vunadadir: “So that the kiap would know about this because I did not think it was a good thing that Toronome had done.”. There could be no doubt, on the evidence, that he made his attitude clear to the Accused. He said in evidence that when delivering the Accused to the patrol officer at Vunadadir he spoke to him thus: “Toronome who is here with me, killed Tolukas and Tolukas is now on the way to hospital. I also told the kiap about the persons who found the body of Tolukas, they were present at Vunadadir.”. The patrol officer directed the Luluai to take Toronome to the house of a police constable at the post where he left him. This officer first told Toronome that he was not to run away and the Luluai, in his own word, “supported the officer” by telling Toronome “to stay there and not to run away.”. The Luluai returned to the village, being picked up on the way by the vehicle which had taken Tolukas to hospital and was returning with Tingai. Tolukas had died before they reached Nonga.

Although I do not find it necessary for the purpose of my judgment upon the question of the admissibility of the confessional evidence, I should say, since the matter was discussed at the bar, that, in my view, Toronome, at this stage, was in custody. It is true that he was not subject to any physical restraint, no cell, no hand-cuffs and, probably, could walk about the post. However, in the circumstances he had no real alternative to remaining at the post and recognizing the supervisory authority of the patrol officer, whose instructions to remain there, as well as those of the Luluai to the like effect, he had already received. In view of the latter’s attitude, actions and instructions the Accused’s home and village were closed to him. There would have been no refuge to him in any other village, where hospitality would have been denied to a fugitive and, in all probability, his re-arrest would have been contrived by persons embarrassed by the burden of a wanted man. Thus he was left the choice of remaining under the surveillance of the officer and his constable at Vunadadir or becoming an outcast in the bush. In the circumstances, to my mind, the instructions he had been given were, in reality, as effective as physical restraints and he was in custody: See generally Smith v. The Queen[lxx]⁴, and Regina v. Bass[lxxi]⁵.

When Tingai was returning from Nonga he met the police officer, to whom the Accused subsequently confessed, at Vunadadir, whither this officer had gone from the more recently established Toma Police Station, some few miles along the road from Vunadadir to Rabaul. Doubtless this visit was made in response to information passed to this officer concerning Tolukas, and Tingai said in evidence that when he met the police officer at the post at Vunadadir the officer told him to meet him at Toma Police Station next morning. The officer was impressed by Tingai and the information he had received about him and there could be no doubt that he expected and intended to avail himself of the assistance of Tingai in his investigations, although he may not then have foreseen that Tingai would also fill the role of interpreter.

Next morning the Luluai and Tingai did go to Toma Police Station and Tingai said in evidence that the police officer said to them: “We are going to Tokumbar.” They went first to Vunadadir, where the Accused saw them arrive, Tingai sitting on the front seat of the vehicle with the police officer and the Luluai in the rear of the vehicle with the native constable, Bulolo. Here, after a conversation with the patrol officer, the police officer informed the Accused that he was a police officer and was making enquiries about the death of Tolukas and he said to him: “I am now going to Tokumbar to make these enquiries do you want to come with me? You do not have to go unless you want to.” Toronome replied: “I will go.” They all went to Tokumbar and the Accused’s wife went with them. She had witnessed events which had taken place between Tolukas and Toronome in the latter’s house on the preceding Saturday night and had joined the party with the Luluai and Tingai at the Toma Police Station on this Monday morning. Her evidence was not available to the Crown because the Accused, through his Counsel, proposed to withhold his consent in the event of evidence of the confession being rejected.

At Tokumbar, Tingai appears to have led the police officer to Toronome’s house, and Toronome unlocked the door. In this house the officer, at some stage, took possession of some blood-stained mats and a piece of wood and he held there an interview with Toronome. Toronome was facing him, on his left was Tingai and on his right were Bulolo and then the Luluai, forming, as it were, an arc of interrogators. The Accused’s wife was present in or near the doorway, where other villagers also gathered. It appears from a piece of evidence given by the Luluai that before the Accused confessed his wife had described part, at least, of the situation in the house in which Toronome and Tolukas were involved on the Saturday night. However, as nothing was made of this by Counsel and it is not clear whether it was done with the sanction of the police officer I will say no more about it. It seems that the wife spoke in Tolai, a language which the officer did not understand.

The police officer gave evidence that he spoke to the Accused: “Toronome, I think you know something about Toluka’s death. I am now going to ask you some questions about it. You do not have to answer them because what you say I shall write down and I may give your talk to the Court, do you understand?” So far conversations between the officer and the Accused had taken place without difficulty in pidgin-English. At this stage, according to the evidence of the police officer, Toronome turned to Tingai and spoke to him for a short time in a language, which he did not understand but which he assumed was Tolai, after which Tingai said: “He wants to tell you all about it”.

However, it is not at all clear that Toronome did want to tell the officer about it in the sense of voluntarily exercising a free choice to confess. According to Tingai the first thing the officer said to the Accused was: “Do you think Tolukas was in this house on Friday night,” to which Toronome replied: “I did not know he was in the house.”. According to the Luluai the questioning started after they had inspected the blood on the mat.

It was only in the course of the evidence, which Mr. McKillop had indicated he would call, that it became apparent to him that the Luluai had not only played the not insignificant part, to which I have already referred, but, also had taken part in eliciting the Accused’s confession in the house. At the time of these events the police officer, who had then not quite completed his first two weeks of duty at Toma Police Station, did not know that Towalubia was the Luluai although he must have been aware that he was not an ordinary native of the village. The Luluai was not called before the committing magistrate, and, when his importance became apparent, Mr. McKillop obtained a statement from him and furnished a copy of it to Mr. Germain. He called the Luluai in addition to the witnesses, whom he had mentioned in opening the matter of the confession.

It is now necessary for me to refer to the evidence of Tingai and the Luluai as to what occurred after the officer spoke to the Accused as already mentioned. Indeed, according to the evidence of Tingai, the officer spoke twice to the Accused because he did not answer, repeating: “If you have anything to say you can tell me now.”. It is difficult to determine, with any degree of mental satisfaction, what was said after this or in what order the various statements referred to in the evidence occurred. It does appear that after hesistation and reluctance on the part of Toronome, suggested to have been due to nervousness, and exhortation on the part of the Luluai, supported by Tingai, Toronome eventually did make confession in the Tolai language to Tingai, which confession Tingai translated to the police officer in pidgin-English.

It is in evidence that after the police officer had spoken, and, before Toronome made his confession, both the Luluai and Tingai spoke to him to the effect that he had got to, that he must make confession to the officer. It also appears that while Toronome was not answering what had been said to him by the officer in pidgin-English, the language in which they had conversed up to this stage, Tingai repeated the officer’s invitatory question in the Tolai language. Tingai at first agreed in cross-examination that Toronome may have said: “I do not want my talk to go to the police officer” and added: “I did not hear him because he was nervous.”. However, when again cross-examined about this he said that Toronome had not at all indicated any lack of willingness to have his talk go to the police officer.

The Luluai said in cross-examination that it was true that he had heard Toronome say: “I do not want my talk to go to the police officer” to which he replied: “You have got to tell the police officer about all this trouble.”. The Luluai also said in evidence that Tingai had supported him. He also instructed Tingai to interpret for Toronome. In re-examination the Luluai said that the first thing that Toronome said and he said in Tolai to Tingai-this was probably after Tingai repeated the officer’s question in Tolai-was: “I do not want my talk to go to the police officer.”. Then this question was put to the Luluai in his re-examination: Did he say: “I do not want my talk to go to the police officer in pidgin-English” or did he say: “I don’t want my talk to go to the police officer” meaning: “at all”? The Luluai replied: “Why, he said: ‘I do not want my talk to go to the police officer in pidgin’ ”. This completes my review of the evidence for my present purpose. I would say here that in weighing evidence of this nature one cannot overlook the well-known tendency of many natives to say to a European what they think he wants them to say. I know from my own experience that this is a characteristic of natives of these parts. It should never be overlooked. Its importance is often greater in the interviews which take place out of Court and, sometimes, its greatest importance is in the first interviews that take place in the investigation of a crime.

In his intellectually stimulating address Mr. McKillop stressed that the underlying principle applicable to the facts was that voluntary confessions are admissible for the reason that a person will not wilfully make a statement against his own interests unless it is true. He submitted that this virtually raised a presumption that a statement against interest is true and should be admitted unless there are any circumstances which point to the possibility of it not being true. His main submission was that while inducement is such a circumstance the inducement, to render a confession inadmissible, must take the form of a threat or promise by a person in authority, and that this was the whole of the common law. Upon this submission he argued that because Section 15 of the Evidence Ordinance 1934-1957 deals with threats and promises it had entirely replaced the common law and provided the whole of the law presently applicable in this Territory to the question of the admission of confessions. In his analysis of the facts he submitted strongly that they did not reveal either a threat of prejudice or promise of advantage made by a person in authority to the Accused.

Mr. McKillop’s argument, particularly to the effect that at common law a statement ceased to be voluntary when induced by and only by a threat or promise of a person in authority was based largely upon the English textbooks: Archbold’s Criminal Law, etc. and, particularly, Phipson on Evidence. He did bring to my notice the article in Volume 33 of The Australian Law Journal, at page 369, by R. R. Kidston, Q.C., of the N.S.W. Bar and Metropolitan Crown Prosecutor, in which are cited the Australian authorities, to which I will refer.

Mr. Germain’s research into the cases of inducement by threat or promise led him to submit that they and the question for my determination turned upon niceties of phrase and, being somewhat dismayed by the Luluai’s last version of what it was that the Accused had said, he preferred to rely upon the discretionary power of a Judge to reject confessions in the circumstances mentioned in the discretionary rule: See McDermott v. The King[lxxii]⁶, per Dixon J.

I do not find it necessary to consider my discretionary power and merely say, out of respect for Mr. Germain’s argument, that, were I not of the opinion that I am bound by the common law to exclude the confession in this case as not legally admissible, it would be necessary for me, guided by the authority to which I have referred, to consider whether I should exercise the discretionary power against the admission of the confession obtained in the circumstances which I have described.

Mr. Germain did refer to the passage appearing in Carter’s Criminal Law of Queensland, at page 387, to the effect that a statement is inadmissible by statute if it is induced by a threat or promise by a person in authority and “ (ii) at common law if it is not voluntary, as, for example where it is wrongfully induced by coercion, either physical or mental, or by improper influence.”

I cannot help but think that the treatment of the subject in such English textbooks as Phipson is somewhat misleading in that it seems to suggest that the legal test of the voluntary character of confessional evidence is limited to the enquiry: was it induced by a threat or promise made by a person in authority. This may be due, in part, to the interpretation put upon the oft-quoted dictum of Lord Sumner (said to be the classical statement of the law) in Ibrahim’s Case[lxxiii]⁷ to the effect that no statement by an Accused is admissible against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it was not obtained from him either by fear of prejudice or hope of advantage, exercised or held out by a person in authority. It may also be due, in part, to the tendency of the great volume of authorities, dealing with the threats and promises of persons in authority, to overshadow other cases of inducement.

However that may be, it is clear to me that I am bound by the Australian authorities which have interpreted the common law to exclude a confession unless it has been made voluntarily in quite a broad sense. It is also clear that the common law, as so interpreted, applies in this Territory side by side with, and is not ousted, incorporated or otherwise affected by Section 15 of the Evidence Ordinance except to the extent to which that section deals with the effect of preceding threats and promises upon ensuing confessions. It was so held by His Honour Chief Justice Phillips in his judgment on the voire dire in The Queen v. Smith[lxxiv]⁸, delivered at Rabaul in July, 1956. His Honour there expressed the view that the common law, as interpreted in the relevant decisions of the High Court of Australia to cover a wider field of inducements than the statutory provision applicable merely to threats and promises, was introduced into this Territory by Section 16 of the Laws Repeal and Adopting Ordinance. His Honour also expressed the view that the common law applied here independently of the statutory provision in the Evidence Ordinance dealing with threats and promises except to the extent to which that provision had replaced part, but, part only of the common law. These views were approved by the High Court in Smith v. The Queen[lxxv]⁹.

The Australian authorities, to which I have referred as interpretative of the common law and which were held by His Honour Chief Justice Phillips to be applicable in this Territory are, particularly: Cornelius v. The King[lxxvi]¹⁰, per Dixon, Evatt and McTiernan J. J. and McDermott v. The King[lxxvii]¹¹, per Dixon J.

To these may be added the judgment of Latham, C. J., McTiernan, Webb, Fullager and Kitto J. J. in The King v. Lee[lxxviii]¹², in which the judgment of Dixon J. in McDermott v. The King[lxxix]¹³, is referred to. Their Honours also state in an abbreviated form what are referred to as the two imperative rules of the common law regarding confessional statements:

“(1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the Accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and

(2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.”

It is interesting to note that Their Honours proceeded to observe that really they seemed to be not two independent and co-ordinate rules but one rule, “. . . the rule that a statement must be voluntary in order to be admissible.” This would seem to have been intended when it was said in Cornelius v. The King[lxxx]¹⁴, by Dixon, Evatt and McTiernan JJ:

“But a promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character”

and by Dixon J. in McDermott v. The King[lxxxi]¹⁵, where His Honour refers to “the basal principle” in a passage, which I am minded to cite, particularly because of the arguments of Counsel before me:

“It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.”

That there is but one rule of the common law would seem to be implicit also in its interpretation by Brandeis J. in delivering the judgment of the Supreme Court of the United States in Wan v. U.S.[lxxxii]¹⁶, which is cited in the judgment of Dixon, Evatt and McTiernan JJ in Cornelius v. The King[lxxxiii]¹⁷.

“The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or threat. A confession is voluntary in law if, and only if it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.”

Nominations and illustrations of the kinds of compulsion that may render a confession inadmissible as not having been made voluntarily will be found in the authorities from which I have cited. In some cases it may well be a matter of degree. In the light of these authorities I ask myself am I satisfied that Toronome confessed in the exercise of a free choice, understanding that he had such a choice, and, not overborne against his will in the circumstances of his interrogation, by all or any of those persons who were there present.

I consider it to be impossible upon the evidence affirmatively to find beyond reasonable doubt that this Accused person made his confession voluntarily, in the sense that it was the outcome of a free choice to speak. In the circumstances in which he found himself - I have recited the evidence of events leading up to, and what transpired at the interview with the officer of police - it is quite possible, if not probable, that he was induced by the pressure or compulsion of the Luluai, who from the outset had been insistent that Toronome should be taken to, remain with and reveal all to the appropriate officials. In this he was supported by Tingai. I have, of course, given consideration to the effect of the police officer’s statements to the Accused, namely, at Vunadadir, that he, Toronome, did not have to come with him to Tokumbar unless he wanted to, and, at Tokumbar, that he did not have to answer the questions. Was this sufficient to remove the effect of the pressure of the Luluai and Tingai, which may have prevailed over Toronome’s will if he did not wish to incriminate himself? I do not think it was. If the police officer had known that Towalubia was the Luluai and had appreciated the part he was playing, with the support of Tingai, probably he would have dispensed with their assistance in his investigations and held his interview with Toronome not in their presence: I consider that he should have done this. I hasten to add that this officer, unaware of the real significance of their presence, was anxious that what took place between himself and the Accused should be witnessed by persons who appeared to have some standing in the village in which the crime had occurred.

I rule that the Crown has not discharged the onus of establishing that the confession of the Accused person was a voluntary confession and I uphold the objection to its reception in evidence.

[lxvii][1946] HCA 55; 73 C.L.R. 316 at page 321.

[lxviii]55 C.L.R. 235.

[lxix][1957] HCA 3; 97 C.L.R. 100 at page 132.

[lxx][1957] HCA 3; 97 C.L.R. 100 at page 129.

[lxxi]1953 1 Q.B. 680.

[lxxii] 76 C.L.R. 501 at pages 512, 515.

[lxxiii]1914 A.C. 599.

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

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

[lxxvi]55 C.L.R. at page 245.

[lxxvii] 76 C.L.R. 501 at p. 511.

[lxxviii][1950] HCA 25; 82 C.L.R. 133 at p. 144.