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Pokia, The State v [1980] PNGLR 97 (20 June 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 97 - The State v Bisket Uranguae Pokia 

[1980] PNGLR 97

N248

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V.

BISKET URANGUAE POKIA

Kainantu

Kapi J.

18-20 June 1980

CRIMINAL LAW - Evidence - Evidence on voire dire - Admissibility of confession in record of interview in issue - Whether questions regarding guilt or innocence of accused person permissible - Application of post-Independence common law principles.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Underlying law - Application of Sch. 2.2 - Pre-Independence common law principle overruled by competent court in England after Independence - Which principle to be applied as underlying law in Papua New Guinea.

On a voire dire, being conducted to determine the admissibility of confessional material contained in a record of interview, the accused was asked a question concerning the truth of the alleged offence. In determining the admissibility of the question put:

Held:

(1)      Where a common law principle applicable in England immediately before Independence Day, is adopted and applied in Papua New Guinea pursuant to Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea, and is overruled or declared to be a wrong principle of law by a competent court in England after Independence Day, then, the latter case will have retrospective effect and all cases following the earlier principle will be regarded as wrongly decided.

Wong Kam-ming v. The Queen [1978] EWHC 1; [1979] 1 All E.R. 929 at p. 943 referred to.

(2)      On a voire dire being conducted to determine the admissibility of confessional material, the issue being one of voluntariness and not the truth or otherwise of the statement, the accused may not be questioned as to the truth of that statement as to his guilt or innocence;

Wong Kam-ming v. The Queen [1978] UKPC 34; [1979] 1 All E.R. 939 adopted and applied.

R. v. Hammond [1941] 3 All E.R. 318 not followed,

he may however be questioned as to the contents of the record of interview or the answers he gave as a result of the questions.

Interlocutory Ruling on Admissibility of Evidence.

This was an interlocutory judgment on the admissibility of a question asked in the course of a voire dire being conducted as to the admissibility of confessional material. The particular question asked appears as par. 4 of his Honour’s judgment hereunder.

Counsel:

J. E. Byrne and G. G. P. Salika, for the State.

K. R. Roddenby, for the accused.

20 June 1980

KAPI J.: The accused was charged with the offence of incest.

During the course of the trial against the accused, the State sought to tender a confessional statement in the record of interview. Defence counsel objected to the admission of the record of interview on the basis that the confession was induced and therefore involuntary.

A voire dire was commenced to determine this issue. During the course of the voire dire the accused was called to give evidence on his own behalf. During cross-examination of the accused by the State the following question was put:

“Q.     When you told the police that you did not know about the trouble you were not telling the truth?”

Defence counsel objected to this question on the basis that whether or not what he said was the truth is irrelevant as the issue in the voire dire is the voluntariness of the statement and not its truth.

The question arose as to whether this question should be put to the accused.

The State argued that the question concerning the truth of the alleged offence is proper because it is relevant to the credibility of the accused’s statements on the voire dire concerning the way in which the confession had been obtained. He relied on the case of R. v. Hammond[cxix]¹ and particularly on a passage in this case:

“If a man says, ‘I was forced to tell the story. I was made to say this, that and the other,’ it must be relevant to know whether he was made to tell the truth, or whether he was made to say a number of things which were untrue.”

He further argued that as a matter of law I am bound to apply the common law as stated in the above case under Sch. 2.2 of the Constitution of the Independent State of Papua New Guinea. He argued that the principle stated in Hammond’s case[cxx]² was the common law immediately before Independence in 1975 and therefore is the underlying law of Papua New Guinea.

Counsel for the defence argued that the principle stated in Hammond’s case (supra) has been declared to be a wrong statement of the law in the case of Wong Kam-ming v. The Queen[cxxi]³ and that I should follow the latter case. He argued that the law as stated in Wong Kam-ming (supra) is the correct law that should have been applied in Hammond’s case (supra). He argued that even though Wong Kam-ming (supra) is a post-Independence case, it has declared what the common law should have been from the time of Hammond’s case (supra).

In the alternative, he argued that if Hammond’s case (supra) is the law as at immediately before Independence in 1975, and therefore is the underlying law of Papua New Guinea under Sch. 2.2 of the Constitution, I should reject it on the basis that it is inappropriate or inapplicable in the circumstances of Papua New Guinea under Sch. 2.2(1)(b) of the Constitution. He then argued that in deciding the question I should adopt the majority decision in Wong Kam-ming (supra) as the right principle to be applied.

WHAT WAS THE COMMON LAW ON THIS POINT IMMEDIATELY BEFORE INDEPENDENCE?

The common law of England has been described as fluid and progressive. Lord Denning, Master of the Rolls, in his recent book The Discipline of Law (1979) in the preface said the following:

“My theme is that the principles of law laid down by the Judges in the 19th century—however suited to social conditions of that time—are not suited to the social necessities and social opinion of the 20th century. They should be moulded and shaped to meet the needs and opinion of today.”

Over the years the common law has developed in this sense. A striking example of the progress of the common law in this sense is in the law of negligence. To give an example, before 1932 a plaintiff could not successfully sue a defendant for damages for negligent acts unless there was a contractual basis between the plaintiff and the defendant. However, the law was further developed in the famous case of Donoghue v. Stevenson[cxxii]⁴ to extend to those outside the contract between the plaintiff and the defendant in the neighbourhood theory.

When the Constitution of the Independent State of Papua New Guinea adopted the common law as at immediately before Independence it froze the common law of England as at 15th September, 1975, and any further progress or development of the common law in the sense I have described above did not and does not become part of the underlying law of Papua New Guinea.

However, this does not mean that if a competent court in England after 15th September, 1975, as in Wong Kam-ming [cxxiii]⁵, declares that a certain principle of common law decided in 1941, as in the case of Hammond’s case[cxxiv]⁶, is wrong law, then the principle to be applied is in the latter case. The latter decision of a competent court in England after 15th September, 1975, will have a retrospective effect and all cases following the former principle would be regarded as wrongly decided. (Wong Kam-ming [cxxv]⁷.)

The principle decided in Wong Kam-ming (supra) is not a further development of the common law, as I have explained, but a declaration as to what the law should have been in 1941 in Hammond’s case (supra).

It follows that the law that is to be applied under Sch. 2.2 of the Constitution is the correct principle which is now declared in Wong Kam-ming’s case (supra).

I am aware that the principle stated in Wong Kam-ming (supra) was followed by Andrew J. in the case of The State v. Gabriel Omui[cxxvi]⁸ although he did not publish his reasons.

In R. v. Minai the issue was not raised in the way it has been raised here, but Smithers J. remarked[cxxvii]⁹:

“It may be that in this Territory a question to the accused as to his guilt is not admissible on the voire dire.”

The State is not entitled to cross-examine the accused as to the truth of the statement he made to the police as the issue is voluntariness and not the truth or otherwise of the statement.

This does not mean that the State is precluded from cross-examining the accused as to either the contents of the record of interview or the answers he gave as a result of the questions. This, in my view, is relevant regarding the issue of voluntariness and his credibility. For instance, as to the issue of voluntariness, if the accused, as a result of cross-examination as to the contents of the record of interview or his answers to the questions, shows that he was consistent in his answers without changing them, this may be seen as answers given without any inducement by the police in any form.

His credibility may be attacked by the police witnesses in relation to the answers he gave. These two matters are not to be confused with the truth of the statements as to his guilt or innocence.

I consider that the principle stated in Wong Kam-ming[cxxviii]¹⁰ is appropriate to the circumstances of this country.

Ruled accordingly.

Solicitor for the State: C. Maino-Aoae, Acting Public Prosecutor.

Solicitor for the accused: D. J. McDermott, Acting Public Solicitor.

[cxix] [1941] 3 All E.R. 318 at p. 321.

[cxx] [1941] 3 All E.R. 318.

[cxxi] [1978] UKPC 34; [1979] 2 W.L.R. 81; [1979] 1 All E.R. 939, P.C.

[cxxii] [1932] A.C. 562.

[cxxiii] [1978] UKPC 34; [1979] 2 W.L.R. 81; [1979] 1 All E.R. 939, P.C.

[cxxiv] [1941] 3 All E.R. 318.

[cxxv] [1978] UKPC 34; [1979] 1 All E.R. 939, at p. 943.

[cxxvi] Unreported, June 1979.

[cxxvii] [1963] P. & N.G.L.R. 195 at p. 201.

[cxxviii] [1978] UKPC 34; [1979] 2 W.L.R. 81; [1979] 1 All E.R. 939, P.C.