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Hapea, The State v [1985] PNGLR 6 (29 January 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 6 - The State v Kiki Hapea 

[1985] PNGLR 6

N497

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KIKI HAPEA

Waigani

McDermott J

28-29 January 1985

CRIMINAL LAW - Evidence - Confessions - Voluntariness - Absence of proper caution - Matter going to voluntariness - Voluntariness covering freedom to speak or not - Common law inappropriate in view of rights provision of Constitution - Evidence Act (Ch No 48), s 28.

In ruling on the admissibility of a record of interview which contained confessional material and which it was alleged was obtained without a proper caution being administered.

Held

(1)      The absence of a proper caution is a matter to be taken into account in determining whether a confessional statement is voluntary in the sense of being made in the exercise of a free choice to speak or be silent.

McDermott v The King (1948) 76 CLR 501 at 512; R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 149 and Wendo v The Queen [1963] P&NGLR 242 at 245 also [1963] HCA 19; 109 CLR 559 at 565, followed.

R v Sirakuras [1964] P&NGLR 18 at 19; R v Ginitu Ileandi [1967-68] P&NGLR 496 at 503, considered.

Dansie v Kelly; Ex parte Dansie [1981] Qd R 1 at 6 and R v Suk Ula [1975] PNGLR 123 at 124, distinguished.

(2)      The common law test of voluntariness is no longer appropriate in view of the rights provisions in the Constitution.

R v Amo and Amuna [1963] P&NGLR 22; R v Demana-Harina [1965-66] P&NGLR 144; R v Josep Kom [1967-68] P&NGLR 265 and The State v Goli Golu [1979] PNGLR 11, discussed.

Cases Cited

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 28.

Dansie v Kelly; Ex parte Dansie [1981] Qd R 1.

Ibrahim v The King [1914] AC 599 at 609.

McDermott v The King (1948) 76 CLR 501 at 512.

R v Amo and Amuna [1963] P&NGLR 22.

R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412.

R v Baldry (1852) 2 Den 430; 169 ER 568.

R v Demana-Harina [1965-66] P&NGLR 144.

R v Ginitu Ileandi [1967-68] P&NGLR 496

R v Ireland [1970] HCA 21; (1970) 126 CLR 321.

R v John Loe [1969-70] P&NGLR 12.

R v Josep Kom [1967-68] P&NGLR 265 at 272-273.

R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 149.

R v Sirakuras [1964] P&NGLR 18 at 19.

R v Suk Ula [1975] PNGLR 123 at 124.

R v Voisin [1918] 1 KB 531 at 538.

Smith v The Queen [1957] HCA 3; (1957) 97 CLR 100.

State, The v Allan Woila [1978] PNGLR 99.

State, The v Goli Golu [1979] PNGLR 11.

Wendo v The Queen [1963] P&NGLR 242.

Ruling on Evidence

This was a ruling, given during the course of a trial on a charge of breaking entering and stealing from a warehouse, on the admissibility of a record of interview which contained confessional material.

Counsel

V Noka, for the State

M Doiwa, for the accused.

29 January 1985

MCDERMOTT J: I ruled that the tendered record of interview by the police with the accused is inadmissible. I now publish my reasons in full.

The accused is being tried on indictment for the crime of breaking, entering and stealing from a warehouse. Apart from the evidence of an employee of the warehouse, which went to the discovery of the break and a stocktake of missing goods, the only other evidence apparent from the State opening is a record of interview.

The offence is alleged to have occurred on 16 December 1983. The record of interview was conducted on 29 June 1984, a short time after the arrest of the accused who, along with some other men, was taken into custody following what appears to have been an early morning raid at the place where they were sleeping. Objection was taken to the tender of the record of interview subsequently obtained on two grounds: (1) that it was obtained after the accused was bashed; and (2) that it was obtained without the administering of a proper caution.

The first objection is based upon s 28 of the Evidence Act (Ch No 48), ie the threat by a person in authority. The particulars supplied at my request were that “the accused was badly bashed by other police before the record of interview by about five policemen”. I was then told that the policemen were the investigating officer, one Jamani and the others were unknown.

Evidence was taken on the voir dire. There are differences in the evidence called by the State, ie from the investigating officer, Constable Damaru, and the Sub Inspector on the one hand, and the accused on the other. The differences relate to time of arrest, 0400 or 0730 and what happened at the crime squad office: a holding of the four suspects in a room prior to the allocation of officers to interview them individually in separate rooms or a “softening up” of the accused prior to the record of interview commencing. There are matters about which the evidence is the same; a number of policemen were involved, the arrest of the accused with others, the presence of Paul Jamani (a sergeant), the delay between arrival at the office and the commencement of the interview, the time when the interview commenced and a period when the accused was not with either Damaru or Gerari. The accused said he was not assaulted by either of these two policemen. They, in turn, say they did not see any other policeman assault the accused. That may well be so. The accused says that both these policemen saw him with Jamani. Before taking the evidence further it is clear to me that there could have been opportunity for an assault on the accused before the record of interview commenced.

The first assault is alleged to have been by Jamani when the accused was taken from the first room to where the sergeant was. There he was slapped on the face, punched and questioned about the break-in. He was then led to another office and hit by another policeman with a police baton on the hands which swelled as a result. That assault ended when yet another policeman said words to the effect that it was 0800, take him and charge him. He was then taken to another room where the record of interview was conducted by Damaru in the presence of Gerari — at least for some of the time. The accused said he spoke because “they hit me so I was frightened”. He, of course, is referring to the other policemen.

The accused was not shaken in his story. There are no glosses to the assaults. Indeed he said he was not frightened by Damaru or Gerari and his version of the arrest in the early hours, which even the prosecutor concedes sounds more reasonable, gives his evidence the ring of truth. His version of the events exhibits all the features of a classic interrogation with the soft/hard touch approach.

Because Sergeant Jamani, or as I have now been told, ex Sergeant Jamani, has not been called, the real doubts raised by the accused remain and thus the fears of the accused were not assuaged by the conduct of the record of interview.

The second objection raises an interesting point. There was a caution of sorts and it is recorded in the document. I read questions 4, 42 and 44 as evidence on the voir dire. I did not consider it necessary to read any other portion apart from the general introduction and question 45, to which I shall refer later, as I am not concerned here with whether the contents are true or likely to be true, I am concerned with voluntariness.

Question 4

“Sapos yu laik yu ken pasim toktok bilong yu. Tasol sapos yu bekim toktok bilong mi long sampela askim bai mi taipim dispela toktok bilong yu long pepa. Yu klia long dispela toktok?”

(If you want to you can keep quiet. But if you do reply to some of my questions I will type your answers on paper. Are you clear about this talk?)

Question 42

“Sapos yi laik yu ken pasim toktok bilong yu long dispela kot bilong yu. Sapos yo wokim sampela toktok long dispela kot bilong yu, bai mi taipim dispela, toktok bilong yu long pepa na bihain bai mi givim dispela toktok long kot. Yu klia long dispela toktok?”

(If you want to you can keep quiet about your charge. If you do say something about your charge I will type your talk down on the paper and later I will give it to the court. Are you clear about this talk?)

Question 44

“Bifo yu wokim sampela toktok bilong yu long dispela kot bilong yu mi laik toksave olsem wanem toktok yu wokim bai mi taipim tu long pepa na bihain bai me givim long kot. Yu klia long dispela toktok?”

(Before you say anything about your charge I want to explain to you that whatever you say I will type down on paper and later I will give it to the court. Are you clear about this talk?)

The Judges’ Rules provide a guide to the conduct of records of interview. They originated in 1906 in a letter from the Lord Chief Justice and were later added to and explained. In 1964 the Judges of the Queens Bench Division approved of new Rules. It has been recognised the rules are a guide in this country: see R v Amo and Amuna [1963] P&NGLR 22 and R v Demana-Harina [1965-66] P&NGLR 144 where Mann CJ said (at 145):

“I think, therefore, that I should regard each set of Rules as available as a pattern of conduct which has the general approval of the courts in England and in the Territory and that any breach of these Rules, or of the explanations which have been made of the way they should operate, would be a matter to be closely investigated and considered, but not regarded as a matter conclusive on the question of admission or rejection.”

In R v Josep Kom [1967-68] P&NGLR 265 at 272-3, Frost J, as he then was, said:

“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 [1957] HCA 3; (1957) 97 CLR 100 per Williams and Taylor JJ. The relevant rule is that persons in custody should not be questioned without the usual caution being first administered (r 3).”

Whilst I cannot find the policy statement endorsing this approach, it is clear that judges in this jurisdiction have used as their guide the earlier rules. However, in The State v Goli Golu [1979] PNGLR 11 at 12 Saldanha J opined “the Judges’ Rules (Eng) are part of our underlying law”, but from what he quotes in his judgment it is clear that he was referring to the 1964 Rules. The reported decisions of the court do not make the present acceptance of the Rules very clear. There has, in the past, been a reluctance, as in Australia, to endorse the 1964 Rules. His Honour’s use of them in Goli Golu’s case has to be seen in this light.

After almost 80 years of operation of one set of Rules or another, one would hope that Rules of this Court could now be formulated. The need to so do is highlighted by the constitutional rights overlay now applicable; the move in the United Kingdom towards a code of practice to be contained in subordinate legislation: see Royal Commission on Criminal Procedure, Cmnd 8092, January 1981; the development of relevant guidelines in the questioning of Aboriginals in the Northern Territory — the “Anunga Rules” see R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412 particularly at 414:

“(3)    Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, ‘Do you understand that?’ or ‘Do you understand you do not have to answer questions?’ Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the Territory already do this. The problem of the caution is a difficult one but the presence of a ‘prisoner’s friend’ or interpreter and adequate and simple questioning about the caution should go a long way towards solving it.”

And as reported in the 1983 Annual Report of the Judges and commented upon in 1984 there has been no criminal investigation training in recent years. Indeed I wonder if now the Judges’ Rules are well nigh meaningless, in practical terms, to a policeman.

Both sets of Rules are set out in Carter’s Criminal Law of Queensland (1982) 6th ed, pp 694-697. On the facts of the present case the accused was to all intents and purposes in custody, see also on this the remarks of Williams J in Smith v The Queen [1957] HCA 3; (1957) 97 CLR 100 at 128.

In the application of either set of rules the caution required is in terms that make clear that the statements can be “given in evidence”.

Obviously the first caution in question 4 is not in accordance with this requirement. The later cautions are of the type usually administered and seen in records of interview. They have a bearing on the answer to question 45. I will deal now with the first caution and by implication what follows up to question 42.

The investigating officer has, since 1983, been attached to the national serious crime squad. He has been in the police force for five years and in this squad since its inception. Hopefully he is aware of the requirements for conducting a record of interview. I am asked to reject the interview on the basis of the nature of the caution.

This raises two questions:

(1)      whether the admissions which followed were voluntary; and

(2)      if voluntary, should they still be rejected as to use them would be unfair and injust to the accused.

Voluntariness is being put to me as follows: can the interview be voluntary when the accused’s decision to speak was made in ignorance, not knowing that the record of interview could later be produced in court and the contents both favourable and adverse to him be considered by the court? How free was the choice when the consequences of speaking were not known?

I have not been referred to cases directly on this issue. The reasons may well be that voluntariness has always been hedged with considerations of inducements of one kind or another. This line of authority can be traced from R v Baldry (1852) 2 Den 430; 169 ER 568 where Parke B said (at 574):

“In order to render a confession admissible in evidence it must be perfectly voluntary; and there is no doubt that any inducement in the nature of a promise or of a threat held out by any person in authority, vitiates a confession.”

The narrow view of “voluntariness” appears to have come from the principle as expressed by Lord Sumner in Ibrahim v The King [1914] AC 599 at 609, in that:

“... no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

Indeed this passage is cited by Dawson J in Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 28, who, speaking of the development of the discretion to exclude statements notwithstanding that they were voluntarily made concluded:

“The need for the discretion appears to have stemmed in England from the limited circumstances in which confessions were regarded as being inadmissible because they were not shown to be voluntary.”

The diverse nature of inducements can be seen in many cases; prolonged and sustained police questioning, violence, force, or some actual coercion or compulsion, even gentle, under which statements are made.

But it seems to me there is a line of argument which suggests another aspect of voluntariness as well — the choice to speak. It is seen in the following statements:

“The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will”: per Dixon J, as he then was, in McDermott v The King (1948) 76 CLR 501 at 512.

Whilst in a joint judgment, the High Court in R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 149 said:

“The introduction of a discretion rule may be considered by some to be, on the whole, unnecessary. The word ‘voluntary’ in the relevant connection does not mean ‘volunteered’. It means ‘made in the exercise of a free choice to speak or be silent’. But a full understanding and correct application of the common law rule that confessional statements must be voluntary provides (as Latham CJ observed in McDermott v The King (1948) 76 CLR 501 at 507) extensive protection to accused persons. In the same case at 512 Dixon J suggests that the development of the discretion rule may perhaps be ‘a consequence of the failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person’s free choice to speak’. His Honour had just said: ‘It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.’“

And, finally in R v Wendo (1963) P&NGLR 242 at 245 Taylor and Owen JJ, Dixon CJ concurring, said after discussing s 68 of the Evidence and Discovery Ordinance (now s 28 of the Evidence Act):

“... The section is confined to ‘confessions’, that is to say admissions of guilt of the crime charged, R v Lee [1950] HCA 25; (1950) (82 CLR 133); but the common law is also in force in the Territory and under that law whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or remain silent, it must be shown to have been so made before it can be admitted in evidence against him.”

But Smithers J rejected a record of interview as not being voluntary on the basis of the interpretation of the caution. He did not have to consider the problem I have when he said:

“It is an essential condition of the voluntariness of a confession that the accused person should really understand that he is under no compulsion to speak, that he is free to speak or not to speak. Indeed it seems to me, with respect to the general run of cases in this Territory, that if this condition is satisfied a confession will seldom be rejected.” See R v Sirakuras [1964] P&NGLR 18 at 19.

And Ollerenshaw J also appears to take a similar approach. R v Ginitu Ileandi [1967-68] P&NGLR 496 was a case in which a police inspector took a statement from a potential witness without caution. He then heard a story in which the witness implicated himself. At 503 is the following:

“... a confession may be voluntary although the confessor has not been told either expressly or impliedly that he has a right to remain silent be he so minded. In my view it is compulsion or pressure that offends against the common law, not the absence of a caution. The common law maxim is ‘nemo tenetur se ipsum accusare’ — no one is bound to incriminate himself; he cannot be forced to do so and if he is then his confession is inadmissible. This is the reality of the thing as I see it and the question is not was he cautioned or warned but was he overborne against his will to remain silent.”

With respect, in my view, the question can be wider than that.

I have been referred to Dansie v Kelly; Ex parte Dansie [1981] Qd R 1, which involved police questioning without a prior caution being given. The magistrate at first instance dealt with this in his discretion. It was not treated as a matter going to voluntariness. On Appeal Dunn J said at 6:

“My opinion is that the magistrate regarded the breach of The Judges’ Rules as a matter which — standing alone — enlivened his discretion to exclude the evidence, and that he did not direct his mind to the question whether the questioning at the Police Station was unfair or otherwise improper.”

His Honour considered the following statement from R v Voisin [1918] 1 KB 531 at 538:

“The question as to whether a person has been duly cautioned before the statement was made is one of the circumstances that must be taken into consideration, but this is a circumstance upon which the judge should exercise his discretion. It cannot be said as a matter of law that the absence of a caution makes the statement inadmissible; it may tend to show that the person was not upon his guard as to the importance of what he was saying or as to its bearing upon some charge of which he has not been informed. In this case the prisoner wrote these words quite voluntarily.... It is desirable in the interests of the community that investigations into crime should not be cramped.”

What was admitted in that case was the writing of two words which were ultimately linked with two similar words written on a parcel containing a corpse. The accused when asked to write the words agreed. At that time he was detained and had just been asked to account for his movements at the supposed time of the murder. Mr Noka submits that Dansie reinforces the decision in R v Suk Ula [1975] PNGLR 123, particularly this sentence at 124:

“... There is of course no doubt that despite the occurrence of improprieties or illegalities, despite the lack of caution, confessional evidence may be admitted if it is established to have been given voluntarily”: see R v Ginitu Ileandi [1967-68] P&NGLR 496 and R v John Loe [1969-70] P&NGLR 12, both decisions of Ollerenshaw J.

In that case the accused were taken to the scene. They were not asked whether they were willing to do this and were not cautioned before or after arriving at the scene. The resulting evidence so obtained was rejected by Prentice SPJ, as he then was, in the exercise of his discretion.

But in the matter before me, I am dealing with a formal interview situation — an interview recorded in the presence of another policeman as well. I consider the defect in the administered caution in this situation to be so basic as to affect the proper exercise of the accused’s free choice to speak or to remain silent. I do not consider the narrow interpretation of the English courts (the Common Law in this jurisdiction) now appropriate in view of the Rights provisions in the Constitution and in view of the other interpretations of voluntariness to which I have referred. I reject the confession on this ground as a matter of law.

What I have said does not affect the admissibility of question 45; it followed a proper caution, but of course, the whole is tainted with the threats prior to the interview and is not admissible on that ground anyway.

In this jurisdiction “voluntariness” has to be decided on the “proof beyond reasonable doubt test”, The State v Allan Woila [1978] PNGLR 99, and the onus is upon the State which it could not discharge on the first two objections. I am also asked to exercise my discretion against the use of the record of interview because it was obtained in circumstances which make its use unfair and unjust to the accused. This presupposes the interview was made voluntarily. It is for the accused to show unfairness, the onus is upon him. There are many considerations which go to the exercise of this discretion, some of which could well mitigate an apparent injustice to the accused. The development of the law in this area can be seen in the High Court cases of R v Ireland [1970] HCA 21; (1970) 126 CLR 321, affirmed in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and more recently in Cleland v The Queen (supra).

Because of my findings as to voluntariness it is not necessary to consider this aspect.

Ruled accordingly

Lawyer for the State: The Public Prosecutor.

Lawyer for the accused: The Public Solicitor.