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Woila, The State v [1978] PNGLR 99 (14 April 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 99 - The State v Allan Woila

[1978] PNGLR 99

N151

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

ALLAN WOILA

Waigani

Kearney J

6-7 April 1978

10-12 April 1978

14 April 1978

CRIMINAL LAW - Evidence - Confessions - Standard of proof of admissibility - Proof beyond reasonable doubt required - Adoption of pre-Independence Common Law discussed.

In determining whether a confessional statement was made voluntarily, the standard of proof to be applied by the trial judge is that of proof beyond reasonable doubt.

Director of Public Prosecutions v. Ping Lin [1975] 3 All E.R. 175 followed.

Wendo v. The Queen (1963) 109 C.L.R. 559; [1963] P. & N.G.L.R. 242 not followed.

Interlocutory Ruling

This was the trial of an accused on a charge of murder during the course of which, the tender of an alleged confession by the accused in the form of a written contemporaneous record of interrogation by a police officer was objected to by counsel for the accused, on the ground, inter alia, that the State had not proved beyond reasonable doubt that the confession was voluntary.

Counsel

L. Gavara, for the State.

A. Jackson, and J Tatireta, for the accused.

Cur. adv. vult.

14 April 1978

KEARNEY J: The accused is standing his trial for a murder he allegedly committed on the night of 30th December, 1977.

The State tendered in evidence an alleged confession by the accused in the form of a written contemporaneous record of his interrogation by a police officer.

The defence objected to the confession being received into evidence, upon the basis that it was not voluntary and was therefore legally inadmissible; and, alternatively, that the circumstances surrounding the interrogation were such that, in fairness, and in the exercise of the court’s discretion the confession should not be received into evidence, though legally admissible.

A considerable amount of evidence relevant to these issues was received, upon the voir dire. I have had the benefit of counsel’s addresses thereon.

I turn to the first submission by Mr. Jackson, that the confession is inadmissible, because the State has not proved beyond reasonable doubt that the confession was voluntary. I deal first with the question of the correct standard of proof of voluntariness of confessions.

Mr. Jackson argues as follows. The various types of law which in totality comprise the laws of Papua New Guinea are set out in Constitution s. 9; one is “the underlying law”. Constitution s. 2(2)(a) provides that the underlying law at present is as prescribed in Constitution Sch. 2. The only rule of law dealing with the standard of proof of voluntariness of confessions is to be found in one element of the underlying law, namely, the common law adopted by Constitution Sch. 2.2. That is to say, it is to be found in the principles and rules of common law and equity in England as they stood immediately before Independence Day (16th September, 1975). The common law rule in England at that time was that the voluntariness of a confession must be proved beyond reasonable doubt; Director of Public Prosecutions v. Ping Lin[ciii]¹, a decision of the House of Lords of 29th July, 1975. None of the limitations and exceptions in Constitution Sch. 2.2.(1)(a) (b) and (c) apply. Consequently, in this country at this time, the law is that a confession is inadmissible in evidence unless the State proves beyond reasonable doubt that it is voluntary.

The question of what is the correct standard of proof of voluntariness, has not been much discussed in the case law in England. It may be that the reason for that is as expressed by Gibbs J in R. v. Hagan[civ]²:

“... I think that cases will be rare in which the circumstances would require such ‘an uncommon nicety of approach’ (to use the words of Denning L.J in Hornal v. Neuberger Products Limited [1957] 1 Q.B. 247 at p. 258) as would enable the judge to say that he was satisfied of the voluntariness of a confession according to the civil but not according to the criminal standard”. (supra.)[cv]³.

The course of decision on the point in England is as follows.

The earliest decision is perhaps R. v. Warringham[cvi]⁴ though Parke B. was there really concerned only with the question of where the onus of proof lay. Addressing counsel for the Crown he said:

“You are bound to satisfy me that the confession, which you seek to use in evidence against the prisoner, was not obtained from him by improper means.” (supra)[cvii]⁵

Some forty years later, in R. v. Thompson [cviii]⁶, Cave J addressed himself more directly to the standard of proof. In his judgment, with which the other four members of the Court for Crown Cases Reserved concurred, he quoted with approval from Taylor on Evidence[cix]⁷ that the judge:

“... will require the prosecution to show affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement, and ..., in the event of any doubt subsisting on this head, will reject the confession”. (supra)[cx]⁸ (underlining mine)

It appears to me from the words I have underlined that the Court was of opinion that voluntariness must be established beyond reasonable doubt, I note the differing interpretation of Wanstall J in R. v. Hagan[cxi]⁹, and other learned judges, with which I respectfully disagree; the meaning of the words seems plain enough.

In 1934, in Chadwick v. The King[cxii]¹⁰ the Court of Criminal Appeal spoke of voluntariness being “proved affirmatively”.

In 1961, in R. v. Sartori, Gavin and Phillips[cxiii]¹¹ Edmund Davies J applied the reasonable doubt standard; but the report is very brief, and there is no indication that the point was argued.

In R. v. McLintock[cxiv]¹² the Court of Criminal Appeal endorsed the reasonable doubt standard, holding that it was the proper standard for the trial judge to have applied when deciding whether an earlier inducement or threat was still operative. Again, however, the report is brief, and there is no indication that the point was argued.

In 1967, in R. v. Wilson; R. v. Marshall-Graham[cxv]¹³ the Court of Appeal (Criminal Division) applied the reasonable doubt standard, without argument; and again in R. v. Richards[cxvi]¹⁴.

Finally, in 1975 in the House of Lords in Director of Public Prosecutions v. Ping Lin[cxvii]¹⁵, Lord Hailsham L.C. (with whom Lord Wilberforce concurred) applied the reasonable doubt standard, again without argument (supra)[cxviii]¹⁶.

It would seem in the light of these authorities, and despite the lack of discussion therein of basic principles, that the standard of voluntariness required in England, as laid down by the courts of that country, is quite clearly the reasonable doubt standard.

I turn to Mr. Gavara’s careful and helpful submissions. He contends that the reasonable doubt standard applied in July 1975 in Director of Public Prosecutions v. Ping Lin[cxix]¹⁷ is not a well established rule of the common law in England, and that it is only such rules that Constitution Sch. 2.2.(1) requires to be applied or enforced in this country. Had the decision been given two months later, it could not be contended that it laid down the standard applicable in this country, because there is a cut-off date in Constitution Sch. 2.2.(1), and the courts here are judicially independent of the House of Lords. The reasonable doubt standard is in any event neither applicable nor appropriate to the circumstances of this country at this time, and therefore should not be applied or enforced: Constitution Sch. 2.2.(1)(b). The dicta expressed in strong terms by the High Court of Australia in 1963 in Wendo v. The Queen[cxx]¹⁸, that the reasonable doubt standard is not the correct standard, a view which was accepted and applied as law in this country between 1963 and 1975, is correct and should continue to be applied; and the standard of proof upon the balance of probabilities, applied in those years, should continue to apply. The test of time has shown the probabilities standard to be applicable and appropriate to the circumstances of the country. It is competent for this Court to decide that the (obiter) views expressed in Wendo v. The Queen[cxxi]¹⁹ accurately states the rule of common law in England, rather than the rule indicated by the English authorities cited above. The view in Wendo v. The Queen[cxxii]²⁰ accurately states the common law, for the reasons suggested by Professor O’Regan[cxxiii]²¹. Some judges of this Court have in fact continued to apply the probabilities standard since Independence, and have by so doing implicitly held that that was the standard laid down by the common law in England at Independence; and the principles of judicial comity, which apply under Constitution Sch. 2.8.(1)(b), point to that practice being followed, unless and until the Supreme Court lays down a different rule.

I now deal with these submissions.

I do not consider that the standard of proof of voluntariness applied in Director of Public Prosecutions v. Ping Lin[cxxiv]²² was in any way a new rule in the common law in England. That standard was instituted in my opinion more than eighty years before, in R. v. Thompson[cxxv]²³, and has been applied in England without exception ever since. But if Director of Public Prosecutions v. Ping Lin[cxxvi]²⁴ did institute a new rule of the common law in England, it did so prior to Independence, and that is all that matters.

It is unnecessary for me to speculate upon the position had Director of Public Prosecutions v. Ping Lin[cxxvii]²⁵ been decided after Independence; I consider however, that rules of the common law in England enunciated for the first time in decisions of English courts handed down after Independence are not adopted as part of the underlying law by Constitution Sch. 2.2.(1). It seems clear enough that that provision adopts, subject to the important exceptions and limitations therein, as a residuary law, the great body of judge-made law as it stood, and was applied, in the courts in England on 16th September, 1975. That date was fixed for purposes of certainty. Judicial creativity thereafter is a matter for the courts of this country, and no other: Constitution Sch. 2.4. In the light of the clear constitutional intention, no Blackstonian theory that “judges do not make law, but only declare what has always been the law,” can be relied upon to support the adoption under Constitution Sch. 2.2.(1) of rules of the common law in England first enunciated after Independence. In any event, in my opinion, the Blackstonian theory is now discredited, and does not accord with the realities of the judicial process.

No evidence was tendered upon which to found the submission that the reasonable doubt standard is inapplicable or inappropriate to the circumstances of Papua New Guinea at this time. It was however suggested that such a standard would vest in an accused person an unjustifiable procedural advantage which would hinder effective law enforcement at this time. Undoubtedly the selection of the appropriate standard of proof in any society does involve a consideration of the proper balance to be drawn between the conflicting interests of the community in maintaining the safety and security of all through effective law enforcement, on the one hand, and in maintaining the basic rights of the individual, as secured by the Constitution, on the other.

It is instructive in this connexion to examine the history of the standards of proof applied in Papua New Guinea, and, briefly, elsewhere.

The earliest reference to the standard occurs in R. v. Amo and Amuna[cxxviii]²⁶ decided in June 1961, when Mann C.J held, following argument, that when the admissibility of a confession is in issue, the onus of proof is on the Crown to exclude any reasonable doubt. In R. v. Toronome-Tombarbui[cxxix]²⁷, decided in April 1962, Ollerenshaw J applied the reasonable doubt standard[cxxx]²⁸, without argument. Next was R. v. Wendo and Ors.[cxxxi]²⁹ decided 4 months later, when the same learned judge again applied the reasonable doubt standard, and stated:

“In R. v. Thompson [1893] UKLawRpKQB 74; [1893] 2 Q.B. 12 where it was held authoritatively that it is for the Crown to prove that a confession sought to be tendered was voluntarily made, it does not appear to have been decided expressly what standard of proof should be required to discharge this onus. In Toronome’s case I said that I was not satisfied beyond reasonable doubt that he had made his confession voluntarily. I find that this approach is supported by Edmund Davies J in R. v. Sartori, Gavin and Phillips (1961) Crim. L.R. 397 and in R. v. Podola (1959) Crim. L.R. 847 at p. 849 and in this trial I consider that I must be satisfied to that degree.”[cxxxii]³⁰.

On 16th October, 1962, in R. v. Banji, Nuben and Kurump[cxxxiii]³¹ it appears that Mann C.J applied the reasonable doubt standard. His Honour considered that the correct “general rule” had been applied by Ollerenshaw J in R. v. Toroman (sic) and went on:

“I do not think that the expression ‘prove affirmatively’ either in statutory provisions or in judgments has any bearing on the degree of proof required. It shows merely the direction in which a fact must be established to whatever degree of proof may be appropriate. It must be proved affirmatively and positively as a fact that a statement is voluntary. An absence of evidence is not enough, nor is evidence to exclude influences which might suggest themselves. In a sense the negative must be affirmatively proved, that there were no influences of any kind, and that the statement was in truth and fact voluntary”. (supra)[cxxxiv]³².

A few days later, in R. v. Fari-Pako[cxxxv]³³, Smithers J applied the reasonable doubt standard. His Honour said:

“A voluntary confession is one taken in such circumstances that the Court is satisfied beyond reasonable doubt that the accused did not speak under the influence of any threat or promise and that, as a matter of reality, he was aware that he had a free choice either to speak or not to speak. The burden of proof is a high one. Emphasis may be given to the words ‘as a matter of reality’. According to law no confession is to be regarded as voluntary until the evidence before the judge is such as to carry conviction to his mind that it possesses the features referred to above.”[cxxxvi]³⁴.

His Honour expressed concern that confessions were not proved to have been made voluntarily, with the result that guilty persons sometimes escaped conviction and punishment.

The confessions in R. v. Wendo[cxxxvii]³⁵ were contained in depositions taken by a coroner. Ollerenshaw J applied the reasonable doubt standard, and ruled that they were voluntary and, thus, admissible. The accused were convicted, and applied to the High Court of Australia for leave to appeal against their convictions, on the ground that their confessional statements should not have been received in evidence. In July 1963, in Wendo and Ors. v. The Queen[cxxxviii]³⁶, the High Court held that the statements were voluntary and properly admitted. However, Taylor and Owen JJ, dealing with the standard applied in the Papua New Guinea cases and in R. v. Sartori[cxxxix]³⁷ and R. v. McLintock[cxl]³⁸, stated:

“With great respect we are unable to agree that this is the law. In criminal trials, as in civil cases, questions of fact frequently arise which must be determined by the trial judge before he decides whether to admit evidence for the consideration of the jury. Confessional statements are but one illustration of the type of evidence the tender of which may give rise to preliminary questions of fact which the judge must decide for himself.”[cxli]³⁹.

Their Honours cited other certain illustrations of evidence involving preliminary facts, given by Lord Denman C.J in Doe d. Jenkins v. Davies[cxlii]⁴⁰, and went on:

“But proof of the fulfilment of these or any other conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt.”[cxliii]⁴¹.

Their Honours then cited with approval certain comments by Starke J in Cornelius v. The King[cxliv]⁴², and Sinclair v. The King[cxlv]⁴³, and, applying them concluded:

“If the judge decides that there is a prima facie reason for admitting the evidence, it is for the jury or, in a case such as this, the judge sitting as a jury to determine what weight is to be given to it. It is then that the standard of proof beyond reasonable doubt has to be applied ... The standard of proof which the learned trial judge applied was a higher standard than the law requires.”[cxlvi]⁴⁴.

The other member of the Court, Dixon C.J approached the issue slightly differently:

“I am not prepared to say what are the limits of the application of general propositions laid down in Woolmington v. Director of Public Prosecutions [1935] A.C. 462 but I think that it is a mistake to transfer the principle from its application to the issues before the jury to incidental matters of fact which the judge must decide.”[cxlvii]⁴⁵.

Thus the Court as a whole treated the question of voluntariness as a preliminary question of fact (which it is), and two judges appear to consider that it is sufficient that voluntariness be established prima facie. I will deal later with this, but I note that Phipson[cxlviii]⁴⁶ appears to accept the prima facie standard as the correct general standard for the proof of preliminary facts.

In view of these opinions and of the hierarchy of courts pre-Independence it was to be expected that from 1963 to 1975, the courts in Papua New Guinea regularly applied a lower standard than that of reasonable doubt. For example, in R. v. Sirakuras[cxlix]⁴⁷ Smithers J held that voluntariness must be proved to the “reasonable satisfaction of the judge”, which, his Honour made clear, was not a matter to be considered independently of the consequences of the finding, and accordingly “the evidence must be such as to induce satisfaction, not beyond reasonable doubt, but perhaps not far from it”[cl]⁴⁸. In R. v. Josep Kom[cli]⁴⁹ the probabilities standard was applied; and similarly in R. v. Ginitu Ileandi and Ors.[clii]⁵⁰ and R. v. Kar Moro and 16 Ors.[cliii]⁵¹.

Post-Independence, I note the case of The State v. Hayden[cliv]⁵², where, however, Frost C.J found it unnecessary to decide which of the two standards was applicable. That appears to be the only published judgment since Independence where the subject has been touched upon.

I turn to the course of authority in Australia. In 1909, in Attorney-General for New South Wales v. Martin[clv]⁵³, Barton J said:

“If there is any doubt it is incumbent on the prosecutor to remove that doubt or the confession will be rejected, and I do not think we can get any further by referring to the whole of the cases than we do by taking the law contained in R. v. Thompson [1893] 2 Q.B. 12.”[clvi]⁵⁴.

It appears to me that his Honour was here touching upon the standard as well as the onus of proof; I differ in that respect from the view of Gibbs J in R. v. Hagan (supra)[clvii]⁵⁵

In 1931, in R. v. Cameron and Simons[clviii]⁵⁶, E. A. Douglas J said:

“The issue to be proved is: is it proved affirmatively that the confession was free and voluntary? Was it received because of an inducement held out by any person in authority? I cannot say that I am free from doubt in this matter. That being so, I have to give the benefit of the doubt to the prisoner”.[clix]⁵⁷.

In 1932, in R. v. Lewis and Wilson [clx]⁵⁸, it was argued before Henchman J that the reasonable doubt standard applied, and that that standard had been applied in R. v. Cameron and Simons [clxi]⁵⁹; however, his Honour considered that that was not so and that what E. A. Douglas J was there saying:

“was that the evidence left him in doubt, and he could not say he was affirmatively satisfied”.[clxii]⁶⁰.

As to R. v. Thompson[clxiii]⁶¹, Henchman J commented:

“I take that to mean that if the trial judge is not judicially satisfied, exercising the best of his ability to the decision of the point, he should decide that there was no improper inducement, but if the evidence leaves him in a state of doubt he will reject the confession. It comes very close to reasonable doubt, but I do not think it really means the same doctrine as we apply to juries.”[clxiv]⁶².

In 1962 in R. v. Donohoe[clxv]⁶³ the Court of Criminal Appeal of N.S.W. indicated how this passage should be properly read.[clxvi]⁶⁴

Henchman J appeared to apply the standard of “very close to reasonable doubt”, and held the confessions admissible; leave to appeal was refused by the Court of Criminal Appeal[clxvii]⁶⁵, on the basis that the confessions had been rightly admitted. The reasons are extremely terse and I find it difficult to treat that refusal, as does Wanstall J in R. v. Hagan[clxviii]⁶⁶, as an “authoritative rejection” of the reasonable doubt test.

In 1936, in Cornelius v. The King[clxix]⁶⁷ Starke J said:

“The Judge merely decides whether there is prima facie any reason for presenting the evidence at all to the jury ...”[clxx]⁶⁸

This was the passage cited with approval, and applied, by Taylor and Owen JJ in Wendo v. The Queen [clxxi]⁶⁹. I share, with respect, the reservations expressed by Dixon C.J as to exactly what this means as regards the admissibility of confessions[clxxii]⁷⁰. (Dixon C.J was there dealing with a view expressed in similar terms by Starke J in Sinclair v. The King [clxxiii]⁷¹). A ruling on a prima facie basis is made only when the question of fact to be decided for purposes of admissibility by the judge happens to be the same as that which the jury must ultimately decide, as in Hitchins v. Eardley [clxxiv]⁷²; but when the issue is the voluntariness of a confession the jury is not concerned and the decision is for the judge alone: Chan Wei Keung v. R. [clxxv]⁷³. Hitchins v. Eardley[clxxvi]⁷⁴ has been trenchantly criticized by Professor Morgan[clxxvii]⁷⁵. The other members of the Court in Cornelius v. The King [clxxviii]⁷⁶, Dixon, Evatt and McTiernan JJ after citing the extract from Lord Denman C.J in Doe d. Jenkins v. Davies[clxxix]⁷⁷ also cited in Wendo v. The Queen[clxxx]⁷⁸, stated:

“The question of fact for the Judge is collateral and irrelevant to the issues upon which the jury is to pass.”[clxxxi]⁷⁹

In 1943 in R. v. Dance and Hendry[clxxxii]⁸⁰, Webb C.J (as he then was), held:

“The Crown must show affirmatively that the statement was not made under the influence of the inducement. If there is any doubt about it the confession must be rejected.”[clxxxiii]⁸¹

In 1962, in R. v. Donohoe[clxxxiv]⁸² the Court of Criminal Appeal of New South Wales, in dealing with the question of the degree of proof required before a dying declaration could be admitted, referred to the “analogous question” of the standard of proof of voluntariness, discussed some of the cases mentioned above, and appeared to conclude:

“It may be that the courts intended only to emphasize the necessity for strict proof.”[clxxxv]⁸³.

In 1963, the High Court decided Wendo v. The Queen[clxxxvi]⁸⁴. It might be expected thereafter that the courts in Australia would apply the probabilities test. However, in three cases in Queensland the following year, in each of which Wendo v. The Queen[clxxxvii]⁸⁵ was cited, the reasonable doubt standard was applied. The first was R. v. Whiteford[clxxxviii]⁸⁶; Stanley J applied the reasonable doubt test, purporting to follow R. v. Dance and Hendry[clxxxix]⁸⁷.

Gibbs J in R. v. Hagan[cxc]⁸⁸ referred to in this as “a statement by a judge very experienced in the Criminal Court, and it is probable that the same view was held by other judges sitting in crime ...”. In October 1964, in The Queen v. Nasmyth[cxci]⁸⁹, Andrews D.C.J followed R. v. Whiteford[cxcii]⁹⁰, and noted that the reasonable doubt standard was said to have been applied by Mansfield C.J in R. v. Silley[cxciii]⁹¹, decided 3 days before; however, the brief report of that case does not touch upon the point.

In 1966, in R. v. Hagan[cxciv]⁹² the question of the correct standard arose in a very direct way before the Court of Criminal Appeal of Queensland, (Wanstall, Gibbs and Douglas JJ) which held that the probabilities standard was to be applied, following the dicta in Wendo v. The Queen[cxcv]⁹³, in the absence of any binding authority. This is the leading authority on the point in Australia. Most of the decisions mentioned above were cited. Of particular significance, however, for present purposes, is the following extract from the judgment of Wanstall J:

“The application of the higher standard of proof by judges of the Supreme Court of the Territory of Papua and New Guinea ... in trials in which they are the tribunal of fact as well as of law, is of no significance (i.e. to the standard to be applied in Queensland) since it would be idle for the judge of such a tribunal to admit a confession preliminarily upon the lower standard of proof only to reject it when called upon to apply the higher standard of proof as a jury.”[cxcvi]⁹⁴ (underlining mine).

Finally, in 1976, in South Australia the Supreme Court (in Banco), also following Wendo v. The Queen[cxcvii]⁹⁵ held that the probabilities; standard is to be applied: R. v. Stafford[cxcviii]⁹⁶.

From these authorities, I conclude that in the common law of Australia, the correct standard is the probabilities standard. In the United States the question of the correct standard had been much debated after Jackson v. Denno[cxcix]⁹⁷ until in 1972 in Lego v. Twomey[cc]⁹⁸ the Supreme Court held by a majority of 4 to 3 that the prosecution was constitutionally required to prove the voluntariness of a confession only by a preponderance of the evidence, and not beyond reasonable doubt. The various States were, however, free to adopt a higher standard; as many in fact do — a list appears in Wharton[cci]⁹⁹. The majority noted that it had been settled since 1961 that “the exclusion of unreliable confessions is not the purpose that a voluntariness hearing is designed to serve ... The sole issue in such a hearing is whether a confession was coerced”[ccii]¹⁰⁰. That rationale involves a rejection of the original “reliability” basis of the common law rule, as expressed in R. v. Warickshall[cciii]¹⁰¹ and a founding upon the constitutional privilege against self-incrimination in the Fifth Amendment. A parallel provision to the Fifth Amendment appears at s. 37(10) of our Constitution but may not apply to pre-trial interrogation as a separate exclusionary principle: Constitutional Reference No. 1 of 1977[cciv]¹⁰². However, it would seem that reliability, the privilege against self-incrimination, and control by the courts of improper police practices, all now possibly under-pin the voluntary confession rule in our jurisprudence: see R. v. Toomey and Frost[ccv]¹⁰³.

In Canada, it appears that the reasonable doubt standard is now applied: R. v. Pickett[ccvi]¹⁰⁴. It has been suggested by Mr. Justice Kaufman[ccvii]¹⁰⁵ that the requirements of the trial process — particularly the rule that all who were present when a statement was given must be called on the voir dire — may mean that in effect the burden on the State is heavier than that imposed by the reasonable doubt standard.

I am unable to find any discussion of the question of the correct standard, in New Zealand case law.

I return to Mr. Gavara’s submissions.

Upon this comparative review, it suffices to say that it is not self-evident to me that the application of a reasonable doubt standard will unduly hinder effective law enforcement; I am unable to say that such a standard is inapplicable or inappropriate to the circumstances of Papua New Guinea at this time.

Setting aside authority for the moment and looking at the question as a matter of principle, I am of opinion that the appropriate standard is one of reasonable doubt. The broad reason for imposing a heavy burden on the State is nowhere better put than by Brennan J in his dissenting judgment in Lego v. Twomey [ccviii]¹⁰⁶; adapting his words:

“... the absolute bar against the admission of a defendant’s compelled utterance at his criminal trial is fundamentally an expression of the (Papua New Guinean) commitment to the moral worth of the individual ... I believe that it is just as critical to our system of criminal justice (as the reasonable doubt standard on questions of guilt) that where a person’s words are used against him, no reasonable doubt remains that he spoke of his own free will.”[ccix]¹⁰⁷.

To apply the standard (assuming for the purposes of argument, it is the probabilities standard) applicable to preliminary questions of fact of the type referred to by Lord Denman C.J in Doe d. Jenkins v. Davies[ccx]¹⁰⁸ to the issue of voluntariness of confessions, while it adds to the symmetry of the law would not, in my opinion, give sufficient weight to the overwhelming importance of the confession in the attribution of criminal guilt, and to the role that interrogation presently plays, in the process of investigation of crime in Papua New Guinea today. On the first aspect, as Cross puts it:

“in many cases, to admit a confession is virtually to ensure the conviction of the accused.”[ccxi]¹⁰⁹

On the second aspect, confessions elicited by interrogation constitute the most common form of evidence led by the State in criminal trials in Papua New Guinea; not infrequently it is the only substantial evidence adduced.

I consider in any event that I am bound by authority.

I do not think it is proper for this Court to decide that, where there is a decision of the House of Lords directly in point, the common law in England is as laid down in a conflicting decision of a court of another country. To the contrary: the decision of the House of Lords upon the point must be taken to be the authoritative expression thereon of the common law in England. The common law in Australia, or in Papua New Guinea, or elsewhere, is a matter for the courts of those countries. I am satisfied that the standard determined by the common law in England as at Independence, was the reasonable doubt standard.

In so far as some judges of this Court may have applied the probabilities standard after Independence, I am bound to say, with diffidence and respect, that I am unable to agree with them. I consider that I am bound to apply the law as I find it, until I am better instructed by the Supreme Court, and principles of judicial comity are irrelevant to that duty.

I would add two comments.

First, in this country, where the judge is at once tribunal of law and tribunal of fact, the application of different standards of proof at different stages in the criminal trial, does not appear to serve as useful a purpose as it may, where the tribunals are differently constituted. There is much force, I think, in the comment of Wanstall J on the point, in R. v. Hagan[ccxii]¹¹⁰, cited earlier. Some of the problems which flow from the consolidated role have been discussed by Professor O’Regan[ccxiii]¹¹¹. On a large view, it is very arguable that the consolidation of functions removes entirely the basis for legal rules on admissibility; but that is a question involving law reform.

Second, while the distinction between the only two possible standards is real and important, I consider that in their practical application in most cases, precisely the same result would obtain. The burden will always be a heavy one when the admissibility of confessions is in question, because of their importance to the final result.

The standard I propose to apply to determine the voluntariness of this alleged confession, is that of proof beyond reasonable doubt.

(His Honour subsequently admitted the alleged confession; the accused was eventually acquitted.)

Ruled accordingly.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.

[ciii][1975] 3 All E.R. 175.

[civ][1966] Qd. R. 219.

[cv] [1966] Qd. R. 219 at p. 228.

[cvi] (1851) 2 Den. C.C. 447 n; 169 E.R. 575.

[cvii] (1851) 2 Den. C.C. 447 n; at p. 448; 169 E.R. 575 at p. 576.

[cviii][1893] 2 Q.B. 12.

[cix]Taylor: Law of Evidence, 8th ed., Pt. 2, Ch. 15, s. 872.

[cx][1893] UKLawRpKQB 74; [1893] 2 Q.B. 12 at p. 16.

[cxi] [1966] Qd. R., 219 at p. 220.

[cxii](1934) 24 Cr. App. R. 138.

[cxiii](1961) Crim. L.R. 397.

[cxiv](1962) Crim. L.R. 549.

[cxv][1967] 2 Q.B. 406.

[cxvi](1967) 51 Cr. App. R. 266.

[cxvii][1975] 3 All E.R. 175.

[cxviii] [1975] 3 All E.R. 175 at p. 182.

[cxix][1975] 3 All E.R. 175.

[cxx](1963) 109 C.L.R. 559; [1963] P. & N.G.L.R. 242.

[cxxi](1963) 109 C.L.R. 559; [1963] P. & N.G.L.R. 242.

[cxxii](1963) 109 C.L.R. 559; [1963] P. & N.G.L.R. 242.

[cxxiii]R. S. O’Regan: “Admissibility of confessions—the standard of proof” (1964) Crim. L.R. 287.

[cxxiv][1975] 3 All E.R. 175.

[cxxv][1893] UKLawRpKQB 74; [1893] 2 Q.B. 12 at p. 16; and see Phipson, 12th ed.; par. 797, n. 34.

[cxxvi][1975] 3 All E.R. 175.

[cxxvii][1975] 3 All E.R. 175.

[cxxviii][1963] P. & N.G.L.R. 22.

[cxxix][1963] P. & N.G.L.R. 55.

[cxxx][1963] P. & N.G.L.R. 55 at p. 63.

[cxxxi][1963] P. & N.G.L.R. 217.

[cxxxii][1963] P. & N.G.L.R. 217 at p. 228.

[cxxxiii]Unreported judgment 254, 16 Oct., 1962, Mann C.J

[cxxxiv]Unreported judgment 254, 16 Oct., 1962, Mann C.J at p. 3.

[cxxxv]Unreported judgment 259, 20 Oct., 1962, Smithers J

[cxxxvi]Unreported judgment 259, 20 Oct., 1962, Smithers J at pp. 1, 2.

[cxxxvii][1963] P. & N.G.L.R. 217.

[cxxxviii](1963) 109 C.L.R. 559; [1963] P. & N.G.L.R. 242.

[cxxxix](1961) Crim. L.R. 397.

[cxl](1962) Crim. L.R. 549.

[cxli][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 572; [1963] P. & N.G.L.R. 242 at p. 250.

[cxlii][1847] EngR 10; (1847) 10 Q.B. 314 at p. 323; [1847] EngR 10; 116 E.R. 122 at p. 125.

[cxliii][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 572; [1963] P. & N.G.L.R. 242 at p. 251.

[cxliv] (1936) 55 C.L.R. 235 at p. 239.

[cxlv][1946] HCA 55; (1946) 73 C.L.R. 316 at p. 328.

[cxlvi][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 573; [1963] P. & N.G.L.R. 242 at p. 251.

[cxlvii][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 562; [1963] P. & N.G.L.R. 242 at p. 242.

[cxlviii]Phipson: The Law of Evidence, 12th ed. 1976, par. 20.

[cxlix][1964] P. & N.G.L.R. 18.

[cl][1964] P. & N.G.L.R. 18 at p. 19.

[cli][1967-68] P. & N.G.L.R. 265.

[clii][1967-68] P. & N.G.L.R. 496.

[cliii][1975] P.N.G.L.R. 14.

[cliv][1976] P.N.G.L.R. 509.

[clv](1909) 9 C.L.R. 713.

[clvi][1909] HCA 74; (1909) 9 C.L.R. 713 at p. 729.

[clvii] [1960] Qd. R. 219 at p. 226.

[clviii][1931] Q.W.N. 47.

[clix][1931] Q.W.N. 47.

[clx](1932) 27 Q.JP.R. 55.

[clxi][1931] Q.W.N. 47.

[clxii] (1932) 27 Q.JP.R. 55 at p. 60.

[clxiii][1893] 2 Q.B. 12.

[clxiv] (1932) 27 Q.JP.R. 55 at p. 60.

[clxv][1962] N.S.W.R. 1144.

[clxvi] [1962] N.S.W.R. 1144 at p. 1150.

[clxvii] (1932) 27 Q.JP.R. 55 at p. 66.

[clxviii] [1966] Qd. R. 219 at p. 222.

[clxix](1936) 55 C.L.R. 235.

[clxx] (1936) 55 C.L.R. 235 at p. 239.

[clxxi][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 573.

[clxxii][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 562.

[clxxiii][1946] HCA 55; (1946) 73 C.L.R. 316 at p. 328.

[clxxiv](1871) L.R. 2 P. & D. 248.

[clxxv][1967] 2 A.C. 160.

[clxxvi](1871) L.R. 2 P. & D. 248.

[clxxvii]E. M. Morgan: “Functions of judge and jury in the determination of preliminary questions of fact” (1929-30) 43 Harv. L.R. 165 at pp. 183-185, note 35.

[clxxviii](1936) 55 C.L.R. 235.

[clxxix][1847] EngR 10; (1847) 10 Q.B. 314 at p. 323.

[clxxx][1963] HCA 19; (1963) 109 C.L.R. 559 at p. 572.

[clxxxi] (1936) 55 C.L.R. 235 at p. 248.

[clxxxii][1943] Q.W.N. 21.

[clxxxiii] [1943] Q.W.N. 21 at p. 32.

[clxxxiv][1962] N.S.W.R. 1144.

[clxxxv] [1962] N.S.W.R. 1144 at p. 1151.

[clxxxvi](1963) 109 C.L.R. 559.

[clxxxvii](1963) 109 C.L.R. 559.

[clxxxviii][1964] Q.W.N. 41; (1965) 59 Q.JP.R. 13.

[clxxxix][1943] Q.W.N. 21.