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Loe [No 2], Regina v [1969-70] PNGLR 17 (12 February 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 17 - Regina v John Loe [No. 2]

[1969-70] PNGLR 17

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

JOHN LOE [NO. 2]

Rabaul

Ollerenshaw J

7 February 1969

10-12 February 1969

CRIMINAL LAW - Evidence - Confession - Admissibility of evidence of discovery made in consequence of inadmissible confession.

After making several confessional statements the accused, at the invitation of the police, had taken them to his house and there unlocked a suitcase in which had been discovered a number of watches. Upon his trial for, inter alia, stealing watches of the same brand his confessions were ruled inadmissible on the ground that they had been induced by improper methods. The Crown, however, sought to adduce evidence of, and incidental to the discovery of the watches in the accused’s suitcase.

Held:

That the assistance and co-operation given to the police by the accused which led to the discovery of the watches was a direct consequence of the improper inducement to confess and accordingly evidence of, and incidental to, the discovery was also inadmissible.

R. v. Beere, [1965] Qd. R. 370, followed; R. v. Jones (1809), R. & R. C.C. 152 [168 E.R. 73]; R. v. Jenkins (1822), R. & R. C.C. 492 [1822] EngR 83; [168 E.R. 914]; and R. v. Barker, [1941] 2 K.B. 381; [1941] 3 All E.R. 33, referred to.

Criminal Trial.

John Loe was charged upon indictment with, inter alia, two counts: firstly, that he stole nine Seiko watches the property of Chin Hoi Meen & Sons Pty. Ltd., and secondly, that he stole twenty Seiko watches the property of Chin Hoi Meen & Sons Pty. Ltd. At a voire dire evidence of the accused’s several confessional statements was held to be inadmissible: R. v. John Loe [No. 1], [1969-70] P. & N.G.L.R. 12. The Crown sought to adduce evidence that immediately after his making those confessional statements, the accused, at the invitation of the police, accompanied them to his house where he unlocked a suitcase containing a number of Seiko watches. All further facts appear in the reasons for judgment.

Counsel:

Garnsworthy, for the Crown.

Flood, for the accused.

Cur. adv. vult.

12 February 1969

OLLERENSHAW J:  The accused man, John Loe, is charged with stealing in an indictment containing three counts, firstly that he stole nine Seiko watches the property of Chin Hoi Meen & Sons Pty. Ltd., secondly that he stole one beach coat and thirdly that he stole twenty Seiko watches the property of Chin Hoi Meen & Sons Pty. Ltd.

There is no evidence to connect him with the beach coat and there will be a verdict of not guilty under the second count.

In my judgment in the voire dire I referred to the confessional statements of the accused man in relation to four of the Seiko watches and I ruled that these confessions were inadmissible. Immediately after confession, the accused man, at the invitation of the police, took them to his house which he unlocked for them to enter and, again at the invitation of the police, in the house he unlocked his suitcase in which the police found twenty-eight Seiko watches. These watches have been identified as part of a consignment to Chin Hoi Meen & Sons Pty. Ltd. missing from the freight section of the office of the airline company, where the accused man was employed.

Counsel took objection to the admission of the evidence of the discovery of the watches, submitting that their disclosure by the accused followed upon, and therefore was induced by the same improper methods as induced him to confess. I agreed to his reserving his submissions in support of this objection until the conclusion of the evidence. The evidence in the trial has been completed and I have heard the submissions of both counsel.

As to the evidence of, and incidental to the discovery of the watches in the accused’s suitcase counsel relies for his objection upon R. v. Barker[xix]¹, a reference to which case he has cited from Cross on Evidence, 3rd ed. (1969), at pp. 264 et seq. I notice that the case is cited in Phipson on Evidence, 9th ed. (1959), at pp. 272-273 in this context:

“Facts discovered through Inadmissible Confessions. Facts and documents disclosed in consequence of inadmissible confessions are receivable if relevant (R. v. Leatham[xx]² ). But documents disclosed by the accused on an inducement conditional upon such disclosure cannot be put in evidence (R. v. Barker[xxi]³ ).”

I have read the report of the case in the All England Reports, the only relevant Reports available here, and I think that Phipson’s brief summary of the effect of the decision is correct. I do not think that this case of R. v. Barker, in which the inducement was conditional, is directly in point or really in point at all except that it does indicate the care that is necessary in separating the discovery from the inducement. That is what concerns me in this trial. It is true that there is no direct evidence of expression or implication on the part of the police to the effect, such as for instance: “You take me to your house and we will make things easier for you.” There is nothing directly of that nature although there was evidence in the voire dire concerning the confession itself that the police had said and implied words to the effect that if you help me or if you tell me these things your court will be easier for you. But although nothing expressly was said at the time of the going to visit the accused’s house and the discovery, I am inclined to think that the assistance and co-operation which was given by the accused man, who had not only recently been overborne but was naturally still overborne, was a direct consequence of the inducement and led to the discovery of facts or things not independently of any assistance or co-operation by the accused but because he assisted and co-operated. At least I could not be satisfied that that was not the position. On the whole I am inclined to think that it was and for that reason I hold that the evidence of his taking the police to his house and unlocking the entrance door, his opening his suitcase and the discovery of the watches there, and indeed any admissions made by the accused after the confession, which I have already held to be inadmissible, are also inadmissible and should be entirely disregarded and I disregard them. I think that I am not departing from the law which I have cited from Phipson as to what I would call the independent discovery of facts in consequence of a confession, and I believe that I am following the law as illustrated in the Queensland case to which Mr. Garnsworthy properly has called my attention: R. v. Beere[xxii]⁴ . Unfortunately, like so many books that would assist us, the report of this case is not available here in Rabaul but he has read this note of the case from The Australian Digest Supplement, 1965:

“Held, that where an improper inducement by a police officer had resulted in the accused accompanying police officers to a place near the scene of the crime and pointing out to them a place where they found certain articles, evidence that the accused had so accompanied the police and pointed out the articles was inadmissible.”

I am also fortified by two cases mentioned by Phipson in the “Examples” which follow the text I have cited from the chapter upon “Confessions”, namely: R. v. Jones[xxiii]⁵ and R. v. Jenkins[xxiv]⁶ the reports of which are not available. However such notes as I see in Phipson encourage me in my belief that I have to ask myself was this assistance and co-operation which the accused man rendered to the police the result of the same matters which I have held in my judgment on the voire dire induced him to confess. I think it was. I have therefore held that the evidence of the accused’s conduct in accompanying the police and opening his house for them and so on is in admissible. My mind is unable to separate the discovery of the watches in the suitcase from this conduct and so I hold that evidence of such discovery is also inadmissible.

This, however, as Mr. Garnsworthy for the Crown has stressed, leaves quite untouched the evidence in relation to four watches which before any confession the accused man admitted having had in his possession and having sold, one to a man named Poli, another to a man named Sifi, a third to a man named Wilfred and a fourth to a man named Pien. These watches, he said, were purchased from a Japanese from a ship for $20 each and he also said to the police officer that he sold them to these men for $10 each. To the suggestion made to him that it was rather a strange thing to do to sell four watches at such a loss he said that these men were his friends and that is why he had sold these watches to them at $10 each. Well that to my mind is a very extraordinary story and I go now to the evidence that at a relevant time a number of watches were stolen from packages or were missing from packages at the Ansett MAL cargo or freight office in Rabaul where, as I have said, the accused man was working. I think the point has been taken that the identity of these four watches has not been sufficiently established; but I think that it would be quite unreasonable not to conclude that these four were four of the watches that were missing from the packages at the place where the accused man worked. There is evidence that they were similar and we know that they were Seiko watches and that there were a number of Seiko watches missing. I must be satisfied beyond reasonable doubt, but I think that at the same time I mustn’t be carried away by fanciful doubts, fanciful possibilities. I entirely believe that those four watches came from the packages while they were in the office of Ansett MAL and that they were stolen from those packages by somebody, that have somebody being the accused man. His counsel suggests he may received and not stolen them. In his story he said he received them from a Japanese. As I have said his story of the receipt and sale of the four watches is an extraordinary story, and the more so when one knows of the watches missing from his place of employment and I have no hesitation in saying that I entirely disbelieve it.

I come to the conclusion that the accused is guilty beyond any reasonable doubt, that he himself was the thief at his place of employment and that he stole these four watches which were the property of Chin Hoi Meen & Sons Pty. Ltd. although they had not been delivered to them.

I find upon the first count a verdict of guilty of stealing four Seiko watches the property of Chin Hoi Meen & Sons Pty. Ltd. Upon count two the verdict is not guilty and upon count three also my verdict is not guilty.

Verdict: Guilty of stealing on first count; Not Guilty on remaining counts.

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

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

[xix][1941] 2 K.B. 381; [1941] 3 All E.R. 33.

[xx](1861) 8 Cox 498; 3 El. & El. 658 [121 E.R. 589].

[xxi][1941] 2 K.B. 381; [1941] 3 All E.R. 33.

[xxii][1965] Qd. R. 370.

[xxiii](1809) R. & R. C.C. 152 [1809] EngR 13; [168 E.R. 733]; 2 East P.C. 658; referred to in Phipson on Evidence, 9th ed. (1959), p. 278.

[xxiv](1822) R. & R. C.C. 492 [1822] EngR 83; [168 E.R. 914]; referred to in Phipson on Evidence, 9th ed. (1959), p. 278.