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Komi, Regina v [1967-68] PNGLR 265 (27 February 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 265 - Regina v Josep Komi

[1967-68] PNGLR 265

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

JOSEP KOM

Port Moresby

Frost J

12 February 1968

23 February 1968

26-27 February 1968

CRIMINAL LAW - Evidence - Confessions - Voluntariness - Discretion of trial judge to exclude a confession unfairly or improperly obtained - Evidence and Discovery Ordinance 1913-1964, s. 68^*[cccxx]1 .

At about 5 p.m. one day a police inspector spoke to the accused, a young man of limited education who had apparently had no previous dealings with the police, concerning an attack upon a woman near Port Moresby on the preceding evening. The accused denied all knowledge of the attack but agreed to accompany the inspector to the police station. There he was cautioned and he made a statement reaffirming his innocence. The inspector then questioned him as to his whereabouts at the time of the attack and as to certain injuries to his face after which the inspector took him to a house where the accused had said he had slept throughout the previous evening. At the house the inspector questioned two men who, in the presence and hearing of the accused, gave answers which contradicted his alibi. The accused was then taken to police premises where the inspector continued the interview putting to him information obtained from the victim of the attack and from the two men interviewed—which information implicated the accused. However, the accused persisted in his denial. The inspector expressed the opinion that he was lying and then left the room for a short period.

It was after 10 p.m. when he returned and the accused then told him he was hungry so the inspector arranged for some food and coffee to be brought into the room. While preparing the meal the inspector turned round to the accused and said: “Are you prepared to tell the truth now?” The accused replied: “I will tell you the truth now, I am ashamed I did not want to talk about it.” The inspector cautioned him and asked, “Do you wish to make a statement?” to which the accused replied that he did. He then made a confession and signed it after it had been read over to him. At the trial of the accused on charges arising out of the attack the Crown sought to adduce the confession in evidence and the defence objected.

Held:

(1) That the confession had been preceded by a threat or promise within the meaning of s. 68 of the Ordinance.

R. v. Lee [1950] HCA 25; (1950), 82 C.L.R. 133; Wendo v. The Queen, [1963] P. & N.G.L.R. 242; Commissioners of Customs and Excise v. Harz, [1967] 1 A.C. 760; and R. v. Smith, [1959] 2 Q.B. 35. referred to.

(2) That the caution administered immediately before the confession was made was insufficient to show that the inducement of food had ceased to operate and accordingly the statement had not been shown to be a voluntary confession and was therefore inadmissible.

Sparks v. The Queen, [1964] A.C. 964, referred to.

(3) That further, apart from the question of the voluntariness of the confession, the circumstances in which it was obtained were such as to warrant its exclusion from evidence as a matter of judicial discretion.

Smith v. The Queen [1957] HCA 3; (1957), 97 C.L.R. 100; McDermott v. The King (1948), 76 C.L.R. 501; and R. v. Amad[1962] VicRp 75; , [1962] V.R. 545, referred to.

Criminal Trial.

Josep Kom was charged with attempted rape and unlawful and indecent assault. During the course of the trial the Crown sought to adduce in evidence a statement made by the accused to a police officer. Counsel for the accused objected. The facts relevant to the issue of admissibility of the statement appear sufficiently from the judgment hereunder.

Counsel:

Gajewicz and Aoae, for the Crown.

Broadley and Luke, for the accused.

Cur. adv. vult.

27 February 1968

FROST J: At this stage of the trial of the accused man who is before the Court on an indictment charging him with attempted rape of the prosecutrix and a second count of unlawfully and indecently assaulting her, it is for me to rule upon the admissibility of confessional evidence tendered by the Crown and which I heard on the voire dire.

The Crown called Inspector Kneebone to give evidence of a written statement made by the accused man to him on 29th September, 1967, the effect of which was that the accused man admitted that he was the one who had attacked the prosecutrix on the night of 28th September, 1967. Sergeant Weaho and two other constables were also called by the Crown. Inspector Knee-bone said that at about 5 p.m. on 29th September, 1967, in the university grounds at Waigani he spoke to the accused and told him that he wanted to ask the accused some questions as to where he was last night, which was the night of the alleged attack, and would he come with him to the Boroko police station. The accused then said: “I didn’t do anything wrong, but I’ll come with you.” In fact they appeared not to have gone direct to the Boroko police station, but to have proceeded first to the Taurama General Hospital where the accused man was examined by a doctor. At the Boroko police station, Inspector Kneebone interviewed the prisoner through Sergeant Weaho who interpreted in Pidgin. The inspector said: “I want to ask you some questions regarding an attack on an European woman in the bushes at the Waigani University last night. You don’t have to answer any questions unless you wish to do so. Is that understood?” The accused man said: “I don’t understand this trouble, I didn’t do anything wrong.” Inspector Kneebone then asked: “Where were you last night?” The prisoner answered he was asleep in his bed. Inspector Kneebone said: “What time did you go to bed?” The prisoner replied: “I had a bath and some food. At about six o’clock I went to bed and laid down and went to sleep.” He was asked how long he was asleep, and the prisoner said till about seven o’clock in the morning. The inspector asked him: “Did you lay in bed the whole time?” He said: “Yes, I slept the whole night and I got out of bed this morning.” The inspector asked him: “Is there anybody who can say you were in bed?”

It was at this stage Mr. Broadley objected to the admissibility of the statements made in the remainder of the interview.

Accordingly I heard the evidence on the voire dire.

The interview at Boroko continued. Inspector Kneebone asked: “Is there anybody who can say you were in bed?” The prisoner said: “Yes, my friends, they saw me.” Inspector Kneebone: “How did you get your sore lip?” The prisoner said: “From eating chillis.” Inspector Kneebone then referred to the fact that when he saw the accused at Waigani his lower lip was swollen, and at the side of his mouth there appeared to be a small abrasion. This had apparently led to the visit to the hospital for the accused to be examined. Inspector Kneebone then took the prisoner out to Waigani, and at about seven o’clock they arrived at the house where the accused said he had slept together with his friends. Sergeant Weaho spoke in Pidgin to two of the men who were there. Sergeant Weaho then told Inspector Kneebone that two of the men had said that the accused had not been in bed when they came home from the pictures, which was some time after 10 p.m. the previous night. These conversations took place in the presence and hearing of the accused man. The prisoner was then brought back by police car to the Port Moresby Criminal Investigation Branch Office where the interview was continued. Inspector Kneebone said to the prisoner: “Now the position is this, you have told me you went to bed at six o’clock last night and got up at seven this morning, and you say the sore lip and the swelling at the side of your mouth is from eating chilli a week ago, is that true?” The prisoner said: “Yes that’s right, I made no trouble.” Inspector Kneebone said: “The girl who was attacked stated that she bit the mouth of the offender quite hard, quite hard enough to make him cry out and run away. Also there are other boys who sleep in the same room as you and they told me that you were not in bed, that you didn’t come home until after they came home at ten o’clock or soon after. Also, the girl stated that the person who attacked her was wearing dark shorts and a coloured tee shirt and these clothes (indicating a shirt and shorts he had earlier taken possession of) were found in your bed. Do you still say you did not do this?” The prisoner said: “I made no trouble.” The shirt and shorts were then shown to the accused man. By this time it was getting on to ten o’clock at night. Inspector Kneebone then said: “It appears that you are the person who did attack this woman, and you are not being truthful.” He then left the accused for a short period. He came back and the accused said he was hungry, so Inspector Kneebone then left and made arrangements for police constables to bring food into the room where the prisoner was. Coffee powder was brought, some bread and jam, and some rice, and the food having been placed on the table in the presence of the prisoner, Inspector Kneebone was waiting for the water to boil so that he could make the coffee, and at that point he turned round to the prisoner, and said: “Are you prepared to tell the truth now?” The prisoner said: “I will tell you the truth now, I am ashamed I did not want to talk about it.” Inspector Kneebone then cautioned the prisoner and said to him: “Do you wish to make a statement?” The prisoner said: “Yes, I will tell you all the truth”, and a statement was then dictated by the prisoner through the interpreter and taken down on the typewriter in English by Inspector Kneebone. The effect of the statement was that on the preceding night, the accused man had attacked the woman and had then proceeded to deal with her indecently, but before he could effect his purpose she had bitten him on the mouth so hard that he had got up and rushed away. The statement was read to him, and he signed it. The only other evidence that I wish to refer to is that Constable Tokavar stated that at the time the statement was being made by the accused man the latter was eating his food.

Now Mr. Broadley submitted that the accused’s statement should be rejected on two grounds, first that the statement was not a voluntary statement made by the accused man in the exercise of a free choice to speak or remain silent, and in particular it was hit by the provisions of the Evidence and Discovery (Papua) Ordinance, s. 68 which provides:

“No confession which is tendered in evidence on any criminal proceeding 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 is shown.”

His second submission was that if the Crown did satisfy me on the balance of probabilities that the confession was a voluntary one, and was not induced by any threat or promise, then I should exercise the discretion which the law gives me and exclude this statement, on the ground that having regard to the fact that it was made after the accused man was cross-examined and the nature of that cross examination continued over a period of about five hours, it would be unfair to use his statement against him.

Now let me now turn to the first submission. Mr. Broadley says that the use made by Inspector Kneebone (who was plainly a person in authority), of the food which was requested by the prisoner gives room for the implication of a threat or a promise. He submitted that whilst it was the prisoner who said he was hungry, and consequently it was quite reasonable that food should have been provided, yet when the inspector with food before him on the table turned round and said to the accused, are you prepared to tell the truth now, these words carried an implication, that if he did make a statement then he would be fed, or alternatively, that if he did not choose at that stage to make a statement, then the food would be withheld.

Now the first part of s. 68 merely states the common law. It is confined to “confessions” that is to say, admissions of guilt of the crime charged (R. v. Lee[cccxxi]²; Wendo v. The Queen[cccxxii]³). Mr. Broadley did not dispute that the accused’s statement was a confession for the purposes of the section. The second part of s. 68 does go further than the common law, in providing that every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary is shown. But it is still useful to refer to decisions on the common-law principle which the section embodies. I have found particularly helpful a passage from the speech of Lord Reid in the recent case of Commissioners of Customs and Excise v. Harz[cccxxiii]⁴ in which the House of Lords considered the admissibility of certain answers made by the defendant to questions put to him by customs officers. He said:

“I do not think that it is possible to reconcile all the very numerous judicial statements on rejection of confessions but two lines of thought appear to underlie them: first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy: and secondly, that nemo tenetur seipsum prodere (which is the Latin maxim which means that no man is bound to betray himself or no man is bound to incriminate himself). It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men or women: they may be very ignorant and terrified by the predicament in which they find themselves. So it may have been right to err on the safe side.”

He then went on to refer to the case of R. v. Smith[cccxxiv]⁵, citing with approval the following passage by Lord Parker C.J.:

“It has always been a fundamental principle of the courts, and something quite apart from the Judges’ Rules of Practice, that a prisoner’s confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court has been at pains to hold that even the most gentle, if I may put it in that way, threats or slight inducements will taint a confession.”

When Mr. Broadley made his submissions yesterday that Inspector Kneebone should not have used the food in any way, as he put it, “to edge the confession out of the prisoner”, and that a promise or threat was capable of being supported by what occurred, it seemed to me that, to use Lord Reid’s words, this was one of those vague threats or inducements which had been carried too far. But on reading the evidence and on giving the matter some reflection since yesterday, I was struck by the fact that when the inspector was presiding at the table with the food before him and waiting for the water to boil, that it was at that moment that he chose to turn around and say: “Will you tell the truth now.” I have to bear in mind that the accused man is a man of twenty-three from the Highlands having had two or three years Mission schooling only. He has lived in Port Moresby for the last two years. Certainly during that time it was not suggested that he has had any dealings with the police. He had been in police custody since about five o’clock in the afternoon. It was at about ten o’clock at night, after he had been taken from hospital to Boroko police station, from Boroko police station out to Waigani and back again to the Port Moresby police station, in the company of a number of police constables. I consider that it may well have seemed to the accused that a promise was being held out to him, that if he did choose to speak at this time, then he would be fed, and if he did not speak then the food might be withheld. Thus on the whole of the evidence I am not satisfied that the confession was not preceded by a promise or threat within the meaning of the Ordinance.

It is now necessary for me to proceed to the next part of the section which provides that every confession made after any such threat or promise shall be deemed to be induced thereby unless the contrary is shown. Now what the Crown relies upon here is that the prisoner, having said that he was ashamed and he now proposed to tell the truth, was again cautioned by the inspector. He was told that he did not have to speak unless he wished to and if he did, what he said would be taken down in writing and may be used in evidence against him. A similar position arose in a case before the Privy Council in Sparks v. The Queen[cccxxv]⁶ on appeal from the Supreme Court of Bermuda. In that case certain inducements had been held out to the prisoner, but the trial judge considered that such inducements did not continue to operate at the time of the making of the statement subsequently made by the prisoner on the ground that the prisoner had admitted that in the meantime he had been properly cautioned. In allowing the appeal on this point, their Lordships said:

“Their Lordships cannot, however, agree that in the circumstances of the present case an acknowledgement (in the recognized wording of a caution) by the appellant that he was not obliged to say anything unless he wished to do so was any indication that inducements no longer continued to operate. In fact, the caution marked the moment when the persuasions, the promises and the inducements became effective. Though the appellant understood that he could, if he wished, remain silent he was (on his evidence) made to believe that for the price of his confession he could purchase advantage. When he was cautioned the inducements were not withdrawn. Rather had the time for decision arrived as to whether he would avail himself of the benefits promised”[cccxxvi]⁷.

I consider that these words sum up exactly the accused’s position, that the caution was insufficient to show that the inducement of food to this hungry man had ceased to operate. For these reasons I therefore uphold Mr. Broadley’s submission that the statement has not been shown to be a voluntary confession, and I therefore exclude it from evidence.

Although it is not necessary for my decision, in view of the fact that the matter was debated at such length before me, I propose to refer to Mr. Broadley’s second submission that even if the statement had been voluntary I should exclude it in my discretion. It was laid down in Wendo v. The Queen[cccxxvii]⁸ that the trial judge has a discretion to

“refuse to admit in evidence statements which are made voluntarily and are therefore not inadmissible as a matter of law, but which have been obtained by unfair or improper methods used by police officers in their interrogation of suspected persons or persons held in custody. In these cases, however, it is for the accused to establish the facts justifying the exercise of the discretion in his favour: R. v. Lee[cccxxviii]⁹” (Wendo v. The Queen[cccxxix]¹⁰).

In this case plainly the accused man was in custody. The Judges’ Rules (I refer to the 1906 Rules) are to be accepted in the Territory as a standard of the propriety of the conduct of the police (Smith v. The Queen[cccxxx]¹¹). The relevant rule is that persons in custody should not be questioned without the usual caution being first administered (r. 3). But this rule does not mean of course that after persons in custody have been cautioned they can be cross-examined on the subject of the crime for which they are in custody. But it is not for every breach of the Judges’ Rules that a statement should be rejected. I propose to set out a passage from the judgment of the High Court in R. v. Lee[cccxxxi]¹² in which the test for the exercise of his discretion by the trial judge is laid down.

“With regard to the Chief Commissioner’s Standing Orders, which correspond in Victoria to the Judges’ Rules in England, they are not rules of law, and the mere fact that one or more of them have been broken does not of itself mean that the accused has been so treated that it would be unfair to admit his statement. Nor does proof of a breach throw any burden on the Crown of showing some affirmative reason why the statement in question should be admitted. As has already been pointed out, the protection afforded by the rule that a statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission. The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded. But it cannot be denied that they do not in every respect afford a very satisfactory standard. Their language is in some cases imperative and in others merely advisory: sometimes the word ‘must’ is used: sometimes the word ‘should’, and the tendency to take them as a standard can easily develop into a tendency to apply rejection of evidence as in some sort a sanction for a failure by a police officer to obey the rules of his own organization, a matter which is of course entirely for the executive. It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused’s statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J. (as he then was in R. v. Jeffries[cccxxxii]¹³ which are quoted by O’Bryan J. in the present case. His Honour said[cccxxxiii]¹⁴: ‘It is a question of degree in each case, and it is for the presiding judge to determine, 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.’ His Honour then proceeded to refer to the account of the trial of Jones v. Hulton published in the Old Bailey Trial Series. ‘It was conceded’, he said, that in that case ‘the examination demonstrably transgressed the limits permitted under the Judges’ Rules.’ It appeared, however, that the accused was in a condition properly to answer to the ‘gruelling questioning’ which had been administered to him, and the learned trial judge admitted the evidence. An appeal was dismissed by the Court of Criminal Appeal. His Honour then concludes: ‘The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.”

Now in the application of this test, on one side of the line, there is the case of McDermott v. The King[cccxxxiv]¹⁵, where the High Court held that a statement had been properly admitted in evidence although the prisoner had been asked questions which amounted to cross examination whilst in custody. The prisoner had been cautioned, a series of questions had been put to him which he had freely answered, and incriminatory statements were made by him as a result of cross examination. Dixon J. said:

“The fact that the police intended to arrest the prisoner, that they virtually held him in custody and delayed for an hour making the charge, and that they asked him questions are not in themselves enough to require that the statements the prisoner made to them should be excluded. The character of the questions, the absence of any insistence or pressure in putting them, the fact that no questions were put directed to breaking down or destroying the prisoner’s answers or statements and the fact that there was no attempt to entrap, mislead or persuade him into answering the questions, still less into answering them in any particular way, these are all matters which negative such a degree of impropriety as to require the exclusion of the testimony as to the prisoner’s admissions”[cccxxxv]¹⁶.

On the other side of the line is the case, on which Mr. Broadley strongly relied, of R. v. Amad[cccxxxvi]¹⁷. In that case the accused man was cross-examined by the police whilst in custody in circumstances which seem to me to be similar to the present facts. I desire to read a passage from the judgment of Smith J., which I would adopt:

“Amad, as already stated, was a person in custody and consequently, even if he had been cautioned at the outset, it would have been improper and contrary to the standing orders to cross-examine him. To cross-examine him without a caution and in the style in which he was in fact cross-examined was, in my opinion, an impropriety of a grave character. It was argued on behalf of the Crown that what took place was not cross examination in any relevant sense. But this contention, at least at one stage of the argument, was based upon what, in my opinion, is the erroneous view that for this purpose questioning is not cross examination unless either it puts words in the accused’s mouth or else it proceeds from a desire in the questioner to break down the accused’s denials or extract damaging admissions from him. Even if the questioner is concerned only to find out the truth and has no preconceptions and no desires as to where it will be found to lie, and even if he refrains from putting any words at all into the accused’s mouth, he is nevertheless cross-examining, in the sense relevant to the matters here in question when he proceeds, as in this present case, to submit the person in custody to a searching questioning in which disbelief is repeatedly expressed in his denials of complicity, his account of his movements is challenged and checked, he is confronted with evidence of its falsity, he is accused explicitly of lying, and his refusal of further information is met with a statement that there are questions which the interrogator must ask him. A person in custody is, by that fact, ordinarily under great stress, and for that reason the law for his protection holds it to be improper to subject him, even after caution, to any form of cross examination the tendency of which is in fact to extort admissions or to overcome his mental resistance to making admissions. There is no exception from this principle in favour of an interrogator whose desire is solely to find out the truth and not to obtain evidence for use against the accused. It is what the interrogator does and not his state of mind that is decisive”[cccxxxvii]¹⁸.

Now turning to the present case, at Boroko the accused man had denied any guilt. He was taken out to Waigani and brought back to the Port Moresby police station and again he denied the charge. The police officer refused to accept these denials. He was then confronted with the three facts, first that the men in the house had said that he had not been in the hut when they returned that night, contrary to his statement, second, that whilst he said that the mark on his face was due to eating chilli, that it was just the sort of mark that could have been caused by the prosecutrix when she had done all she could to beat off her assailant by biting him, and third that he was wearing the same sort of clothes that the prosecutrix described. In short there was a refusal to accept his denials, and a confrontation of him with evidence which appeared to be contrary to his story. Finally there was the incident to which I have referred in which when food was placed before him, and he was asked, are you prepared to tell the truth now.

It seems to me that what happened in this case was that the inspector felt that in the course of his duty he should pursue this cross examination which was designed to get to the truth of the matter, but upon all facts of the case if it had been necessary for me to decide whether I should exercise my discretion in favour of the accused, I would have come to the conclusion that this case fell on the side of the line illustrated by R. v. Amad[cccxxxviii]¹⁹.

I accordingly refuse to admit the statement in evidence.

Ruled accordingly.

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

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

[cccxx]* Section 68 of the Evidence and Discovery (Papua) Ordinance 1913-1964 provides:

[cccxxi](1950) 82 C.L.R. 133.

[cccxxii][1963] P. & N.G.L.R. 242, per Taylor and Owen JJ., at p. 245.

[cccxxiii] [1967] 1 A.C. 760, at p. 820.

[cccxxiv] [1959] 2 Q.B. 35, at p. 39.

[cccxxv][1964] A.C. 964.

[cccxxvi][1964] A.C., at p. 989.

[cccxxvii][1963] P. & N.G.L.R. 242.