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State v Tanuma [1999] PNGLR 475 (4 June 1999)

[1999] PNGLR 475

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SIMON TANUMA

LAE: INJIA J
7, 10-11, 17-18 May; 4 June 1999

Facts

The accused pleaded not guilty to one count of armed robbery laid under s 386 of the Criminal Code Act. He denied State allegations that on 6 February 1998 at about 7.30 p.m. at Salamanda Street, Lae, the accused together with 4 others armed with 2 home-made guns, a home-made pistol and a bush knife held up one Zerry Nanong as he was driving into his house with his family, threatened him and got hold of his Toyota Hilux, Reg. No. LAE 455 and drove it away. In the course of decamping from the area, they shot Nanong on his right leg and caused serious injuries.

The evidence for the State admitted at the trial is both documentary and oral. The State sought to tender its oral evidence through Constable Kaisa. However, defence counsel objected resulting in a voir dire. After hearing submissions on the voir dire, His Honour ruled as follows:

Held

1. Admissions obtained during the interview on 5 March 1998 and contained in the record of interview were obtained in circumstances unfair to the accused. Confessional statement obtained by Constable Kaisa on 7 February 1998 was not sought to be tendered by the State and it is not in evidence. The circumstances in which that confessional statement was obtained are not clear to this Court because the State witnesses appear to be reluctant to disclose those circumstances.
   
2. Having obtained that confessional statement, even if it was properly obtained, it was not necessary for Const. Kaisa to subject the accused to another more vigorous interrogation to obtain more confessions. The State v Anton Turik [1986] PNGLR 138 applied.
   
3. The presence of Const. Makeso and other CID personnel in the same CID office when the accused was interrogated also had an over-bearing effect on the accused.
   
4. The main basis of the challenge to the R.O.I. is the re-writing of the questions and answers given in the Confessional Statement. When that very confessional statement and the total circumstances in which they were obtained are not forthcoming from the State witnesses, there is reasonable doubt as to the fairness of the circumstances in which the interview on 5 March 1998 was conducted.
   
5. It is therefore unsafe and unfair to admit the record of interview into evidence and rejected admission.
   

Papua New Guinea cases cited

The State v Anton Turik [1986] PNGLR 138.

The State v Mana Turi [1986] PNGLR 221.

Other case cited

R v Lee [1950] HCA 25; [1950] 82 CLR 133.

Counsel

R Popeu, for State.
A Raymond, for the accused.

4 June 1999

INJIA J. The accused pleaded not guilty to one count of armed robbery laid under s 386 of the Criminal Code Act. He denied State allegations that on 6/2/98 at about 7.30p.m. at Salamanda Street, Lae he together with 4 others armed with 2 home-made guns, a home-made pistol and a bushknife held up one Zerry Nanong as he was driving into his house with his family, threatened him and got hold of his Toyota Hilux, Reg. No. LAE 455 and drove it away. In the course of decamping from the area, they shot Zerry on his right leg and caused serious injuries.

The evidence for the State admitted at the trial is both documentary and oral. The documentary evidence admitted by consent are as follows:

1. Certified statement of Zerry Nanong - Exhibit "A" (St).
   
2. Certified statement of Irene Masue - Exhibit "B" (St).
   
3. Certified statement of Helen Alaung - Exhibit "C" (St).
   
4. Certified statement of Frida Ruben - Exhibit "D" (St).
   
5. Certified statement of Rebecca Nanong - Exhibit "E" (St).
   
6. Certified statement of John Akoko - Exhibit "F" (St).
   
7. Certified statement of Silas Taliva - Exhibit "G" (St).
   
8. Certified statement of Basawe Anzu - Exhibit "H" (St).
   
9. Certified statement of Dr. W. Kurapa - Exhibit "I" (St).
   

Oral evidence was given by Det. Const. Kelly Kaisa in relation to the record of interview (ROI) containing admissions, which was conducted between him and the accused. The State sought to tender it through Const. Kaisa. The defence counsel objected to its tender on the following grounds:-

"1. Assaults

The accused was badly bashed up by Task Force and Dog Unit members on 6th February when he was picked up. Then locked in the cells.

He was further assaulted on the 7th February and 8th February.

"2. Threats of further assaults

On 7 February there were many CID personnel in the Office when he was asked to tell his story. They said "paitim em, paitim em". Then on 8 February taken out against and interrogated when Max Makeso said, "The victim saw you so don’t try to deny" or words to that effect. Also present were Kelly, Paliau and others.

During the record of interview conducted on 5 March 1998, Detective Kaisa had an iron rod and the piece of rubber hose on the table, which made the accused apprehensive.

These acts by the CID amounted to involuntariness, thus contravened section 28 of the Evidence Act and violated s 42(2) of the Constitution."

As a result, a voir dire was conducted in which Constable Kaisa, Constable Fred Rimbao and Constable Max Makeso gave evidence for the State. The accused gave sworn evidence. After hearing submissions on the vior dire, I reserved my ruling, which I now hand down.

As the offence was committed at night and in terrifying circumstances, most of the eyewitnesses including the victim Zerry were unable to identify the suspects. Therefore, the accused’s admissions, if any, are critical in this trial. It is not disputed that police recovered the victim’s vehicle the same night and apprehended the accused from inside the vehicle with the other suspects on 6 February 1998. The accused’s story now is that he was drunk and asked by the other suspects to accompany him for a ride in the vehicle. Not knowing it was stolen, he joined them, only to be apprehended by police the same night.

The accused claims he was beaten up badly by the task force police when he was apprehended. There is no evidence from the task force policemen who apprehended him, to counter his evidence. The question is whether the accused was assaulted on 6 February 1998 for the purpose of extorting a confession from the accused at the scene of his apprehension. There is no clear evidence from the accused on this aspect. It is also not clear from the accused’s evidence whether or not the force used against him was reasonable force necessary to execute arrest and prevent escape, as so authorised of police by law. Mr Popeu for the State submits that force may have been used, and if it were, then it would have been lawful.

The accused’s allegations essentially relate to what happened; (1) at the Lae Police Station the next day after he spent the night in the police cells, that is on 7 February 1998; (2) what happened on 8 February 1998 at the police station and (3) what happened on 5 March 1998 at the same police station when the interview was conducted.

There is no dispute that on 7 February 1998, the accused was taken out from the cell by Constable Kaisa and a confessional statement was taken. The accused says Max Makeso and other policeman, "Kelly, Paliau and others" were also present at the CID office and they threatened to hit him if he denied because the victim saw him. He says they actually assaulted him with a piece of iron, rubber hose, etc. So he admitted everything. Upon my own questioning, Constable Kaisa said the confessional statement was made to him voluntarily after he was given his constitutional rights. However, the State did not seek to tender this confessional statement.

As to what happened on 8 February 1998 there appears to be a mistake on the part of the accused’s lawyer in putting this date down on the "Notice of Voir Dire" because the accused was not taken out of the police cell again on 8 February 1998 and interrogated.

As to what happened on 5/3/98, the accused says he was interviewed at the CID office by Constable Kaisa. Constable Kaisa had before him placed under the table the same piece of iron and rubber hose used on 7/2/98. Constable Rimbao did not sit on the same table to corroborate the interview as Constable Rimbao said in Court. There were also other CID policemen hanging around in the office when the interview was conduced. He said although no actual threat or force was used, in fear of the possibility of what happened on 7 February 1998 being repeated, he simply submitted himself to Constable Kaisa. But he did not make any admissions then. Constable Kaisa simply re-wrote the confessional statement he made to him on 7 February 1998 and asked him to sign it and he obliged after it was read back to him.

Constables Kaisa and Rimbao both said the accused was given his constitutional rights and questions were answered freely by the accused. They denied they had the piece of iron and rubber hose with them. They did say there were other CID policemen including Constable Makeso going about doing their own business when the accused was interviewed.

The issue is whether or not the interview containing admissions obtained some days after a confessional statement was obtained may be admitted into evidence. In a situation where persons in position of authority such as policemen obtaining confessions or admissions use unfair or improper tactics to obtain it, such admissions or confessions may be excluded by the Court in the exercise of its discretion. The tests is one of whether or not, in all the given circumstances, the accused’s mind was "overborne at the time he made his confession (or admission) by what occurred earlier": see State v Anton Turik [1986] PNGLR 138 at 140.

In the State v Anton Turik (supra) the accused was questioned at length and a ROI made some 18 hours after he made a full confessional statement. Whilst admitting the confessional statement into evidence, Pratt J rejected the ROI. The basis for reaching this decision is set out at page 141-145.

"I do not think the system which seems to have been developing of late of taking a detailed confessional statement followed up with a record of interview is one which should be encouraged by the courts. Either the police must be satisfied if they get a long confessional statement and leave it at that or they must avoid anything except perhaps the barest admission if they wish to pursue the matter by way of record of interview. Certainly they will be in great danger of having the record of interview struck down if it takes place on the day following the taking of a details confessional statement. Indeed I think there could be very strong arguments for saying that a record of interview would be struck down even if it took place immediately after such a long voluntary confessional statement as exhibited before me in this particular matter."

In The State v Mana Turi [1986] PNGLR 221, McDermott J. was concerned with an accused person who was detained for murder. He was detained for six days without being charged. He was taken into custody following confessional statements he made to police in the police cells. McDermott J. considered the "five days detention, the giving of two full confessional statements by the accused, his continued detention without charge or judicial remand and then subjecting him to a full question and answer Record of Interview amounts to impropriety." At page 225-226, His Honour described the basis for his decision as follows:

"It is indeed, we think, a mistake to approach the mater by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused’s statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment Street J (as he then was) in R v Jefferies [1946] NSWStRp 54; [1946] 47 SR (NSW) 284 which are quoted by O’Bryan J in the present case. His Honour said, at 312: "It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

In R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 134, the High Court of Australia said:

"The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interest of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence."

I would adopt these views as my own and apply them to the present case.

The issue is whether the confessions which the State says are contained in the ROI were obtained in circumstances unfair to the accused, such that this Court should exercise its discretion to reject it. This is where the entire events in relation to the apprehension and interrogation of the accused should be scrutinised.

On the evidence I am satisfied that the admissions obtained during the interview on 5/3/98 were obtained in circumstances unfair to the accused. To begin with, the confessional statement obtained by Const. Kaisa on 7/2/98 was not sought to be tendered by the State and it is not in evidence. The circumstances in which that confessional statement was obtained are not clear to this Court because the State witnesses appear to be reluctant to disclose those circumstances. I have some doubt as to whether those admissions were properly obtained. Having obtained that confessional statement, even if it was properly obtained, it was not necessary for Const. Kaisa to subject the accused to another more vigorous interrogation to obtain more confessions. The presence of Const. Makeso and other CID personnel in the same CID office when the accused was interrogated also had an over-bearing effect on the accused, Const. Makeso alleged to having been involved when the the confessional statement was obtained on 7 February 1998. I agree with defence counsel that on 5 March 1998, the accused’s will was overborne by the admissions he gave on 7 February 1998 under circumstances which are unclear to this Court. The main basis of the challenge to the ROI is the re-writing of the questions and answers given in the confessional statement. When that very confessional statement and the total circumstances in which they were obtained are not forthcoming from the State witnesses, I have a reasonable doubt as to the fairness of the circumstances in which the interview on 5 March 1998 was conducted. Therefore I am of the firm view that it is unsafe and unfair to admit the record of interview into evidence and I so rule.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.