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Loe [No 1], Regina v [1969-70] PNGLR 12 (11 February 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 12 - Regina v John Loe [No. 1]

[1969-70] PNGLR 12

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

JOHN LOE [NO. 1]

Rabaul

Ollerenshaw J

7 February 1969

10-11 February 1969

CRIMINAL LAW - Evidence - Confessions - Voluntariness - Promise or threat - Evidence Ordinance 1934-1964, s. 15.[xvi]1

When interrogated by a police officer in connexion with the stealing of a number of watches the accused claimed that the watches had come into his possession innocently. The officer then left the room at the police station where the interrogation had taken place and the accused was taken to another room. There, with probably one short interval, he was questioned vigorously by four native police constables for something like two hours. During the questioning one constable told him, in effect, that if he did confess the police would do what they could to make things easier for him in court. For a time the accused continued to deny that he had stolen the watches but later he confessed.

Held:

(1)      That the confession had been induced by a promise such as to render it inadmissible by virtue of s. 15 of the Evidence Ordinance 1934-1964.

(2)      That the confession was also inadmissible at common law in that it had not been shown by the Crown on the balance of probabilities to have been voluntarily made.

Wan v. United States [1924] USSC 158; (1924), 266 U.S. 1, at p. 14, referred to.

Semble:

In the circumstances a threat to keep the accused in the police station until he confessed could be implied and on this ground also the confession was inadmissible by virtue of s. 15.

Voire Dire.

John Loe was charged, inter alia, with stealing certain watches. During the course of the trial the Crown sought to adduce in evidence a confessional statement alleged to have been made by the accused to a police constable. Counsel for the accused objected. The facts relevant to the issue of admissibility and the arguments of counsel appear from the judgment hereunder.

Counsel:

Garnsworthy, for the Crown.

Flood, for the accused.

11 February 1969

OLLERENSHAW J:  The accused man, John Loe, is charged with stealing certain articles, mainly the Seiko watches which have been referred to in the evidence as gold watches. The evidence and addresses have just concluded in a voire dire undertaken to inquire into an objection made by counsel for the accused man to the admission in evidence of a confession made by his client. Counsel took his objection upon three grounds. Firstly, that the confession had been induced by threats and promises within the meaning of s. 15 of the Evidence Ordinance 1934-1964. Secondly, that it should be rejected in the proper application of the discretionary rule, and thirdly, perhaps upon a suggestion from myself, he relied upon the broad principle of the common law that to be admissible a confession must be voluntary.

Briefly, the relevant facts are that two men having been seen each wearing a watch, which could be identified as stolen, were taken to the police station and each of them said that he had bought his watch from the accused man who was employed in the cargo or freight department of the airline company known as Ansett MAL.

Thereupon the police officer, who had the duty to investigate the situation, sent two constables to the office of the airline company to bring the accused man to the police station. He was there interrogated by the police officer and he claimed that he had bought the watches, which he admitted having sold to the two men. He claimed that he had bought the watches and two others of a similar kind from a Japanese off a boat at Rabaul. He resolutely denied that he had stolen them. This was towards twelve o’clock, midday. The police officer then left, and the accused man was taken from the police officer’s room to another room, apparently the room where the native constables usually interview persons, including suspected persons.

The police officer gives as an explanation of why he left that he hadn’t made any inquiries or got proper information about the theft because it had never been reported and it had just come up and so he went off to make some inquiries. The matter had come up I suppose because somebody had made some reference or complaint or given some information to the police that two men were seen wearing watches that had been stolen. It would seem that the police must have had some information. Be that as it may, the police officer went off and the accused was left for something like two hours, during which period, except probably while he was having a meal, he was questioned vigorously by altogether four native police constables. The first questioning was mainly conducted by Senior Constable Pirien with the assistance of Constable Gitgit and the result of it was that the accused man still maintained his story and denied that he had stolen the watches: so we have still a man who does not wish to incriminate himself. Subsequently he did, he confessed to stealing them. The question is: Desiring to remain silent and not confess, was he overborne to confess against his will. Whether one likes it or not this is the law, and it has its origin in the great common law maxim nemo tenetur se ipsum accusare and it is my duty to apply it. The obligation of the Crown is to satisfy me on the balance of probabilities that the confession, which the man ultimately made after resisting many attempts to get him to confess for such a long period and denying his complicity to the European officer and the senior man of the constables, was voluntary. Has the Crown satisfied me that he confessed voluntarily and not being overborne? I am far from satisfied. Indeed on the balance of probabilities I think he was overborne.

Mr. Flood has also relied upon s. 15 of the Evidence Ordinance. He says that there was direct evidence of a promise by Constable Gona, the most intelligent and brightest of the four constables who were involved. It is submitted that he made a statement to the accused from which it could only be implied that if the accused did confess, something would be done to make the consequences less painful, to make it easier for him in court. I think that there was such a promise, I think that he was told in effect that if he did confess then the police would do what they could to make things easier for him than otherwise they would be.

Mr. Flood also relies on the threat that is prohibited by s. 15. He says that there was an obvious implication in keeping this man at the police station and pressing him with questioning for this long time, not either charging him or releasing him after he had denied it and continued to deny it. Counsel argues that there was an obvious threat to keep the accused man in the police station until he did what was required of him, that is confess to stealing. On the whole I think that such a threat may be implied, certainly it is not excluded and doubt is not removed: and certainly there was compulsion. I do not refer to all the questioning and incidents that took place between the accused man and the constables in the absence of the officer. I think that three of them inferred and Gona expressly said to the accused man that his story about the watches was not believed. They exerted considerable pressure and so it was that eventually he did confess to one of the constables. That constable informed the officer and the officer sent for the accused man and told him: “The constable here has said you admitted to stealing the four gold watches. Is this correct?” The accused replied: “Yes.” Although the accused man had been warned earlier by the police officer and was warned again, I don’t think that those warnings would have any significant effect at this stage. The policemen had prevailed upon the accused to confess and there was no use in his denying it to the police officer and indeed it was pointed out to him that his confession had been relayed by the constable to the police officer. As to the suggestion that the police officer, when he first interviewed the accused man, promised help, to help the accused man if the accused man helped him by confessing, I don’t think that that occurred. The accused could have gone into the witness box without any danger and given evidence of it and allowed himself to be cross examined, but he did not do so. I don’t think it occurred. Indeed I suspect strongly that the police officer had another method of obtaining a confession, that he followed what I suspect has become something of a practice at the Rabaul police station: that is if a man won’t confess, a native man won’t confess then leave him to the mercy tender, or otherwise, of his own people, the native police constables, and see what they can get out of him. I can’t find conclusively that that was deliberately done in this case or that there is a deliberate practice to that extent, but this type of thing has occurred during the investigations for some other trials I have heard here and I do say that I strongly suspect it and I strongly suspect that that is what happened in this case, that it was a deliberate tactic. If there is such a practice it is improper and it must stop. The police, of course, have their duty; crime must be investigated. At the same time it must be investigated in the manner laid down by the law for which I am not responsible; I am merely applying the law. I think that there was a promise, and I am inclined to consider that there was a threat, within the meanings of the section. Moreover, I think that the confession is inadmissible under the broad common law ground, that is to say, quoting from Wan v. United States[xvii]², which I have cited on a number of occasions:

“But a confession obtained by compulsion must be excluded whatever may have been the compulsion and whether the compulsion was applied in a judicial proceeding or otherwise”[xviii]³ .

I consider that there was compulsion that induced the confession in the proceedings at the police station to which I have referred briefly and that in such wrongful proceedings the accused man was overborne.

I order that the confessional statements be not admitted in this trial.

Ruling accordingly.

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

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

[xvi]Section 15 of the Evidence Ordinance 1934-1964 provides as follows:

“No confession which is tendered in evidence on any criminal proceeding shall be received if it 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.”

[xvii](1924) 266 U.S. 1.

[xviii](1924) 266 U.S., at p. 14.