[1969-1982] NLR (D) 40

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 20 of 1975

Stan Teddy Dabuae

v

The Republic

5th September, 1975.

Evidence - confession to police officer - voir dire not necessary but if confession not voluntary magistrate to reject the evidence.

Procedure - criminal trial - accused unrepresented and not cross-examining prosecution witness - magistrate to ask whether he intends to deny any fact stated by the witness.

Appeal against conviction for stealing money. The appellant was interviewed by a police officer and allegedly admitted stealing the money. Subsequently, when charged, he denied stealing it. When the police officer gave evidence of the alleged confession, the appellant; who was unrepresented, did not cross-examine him. A voir dire was not held to decide whether the evidence of the confession was admissible. When the accused gave evidence, he said that he admitted the theft because the police officer made threats against him. The magistrate accepted the police officer's evidence as reliable and rejected the appellant's evidence of threats because the appellant had not put that allegation to the Police officer in cross-examination. The police officer did not give evidence of having administered a caution and the magistrate did not expressly address himself to the question whether the confession was obtained fairly and made voluntarily.

Held:
(1) Because the magistrate alone decides all questions of fact, it was not strictly necessary for him to hold a voir dire to decide whether evidence of the confession was admissible.

But (2) He should not have taken the evidence of the alleged confession into account without first being satisfied that it was obtained fairly and made voluntarily, i.e. was admissible.

(3) Because the appellant was unrepresented and, when he failed to cross-examine the police officer, was not asked whether he in fact accepted as true the facts stated by the police officer, the magistrate should not have taken his failure to cross-examine into account when considering what weight should be given to the appellant’s evidence.

(4) When an accused person who is unrepresented does not cross-examine a witness, the magistrate should ask the accused whether he intends to deny any of the witness's evidence; if the accused says that he does intend to do so, the magistrate should assist him to cross-examine the witness and to put to the witness the accused's version of the facts.

E. Caleb for the appellant
Mrs. M.L. Billeam for the respondent

Thompson CJ:

The appellant was convicted in the District Court of stealing money. The evidence adduced by the prosecution was that only he had access to the money during the period of time within which it was stolen and that, when questioned by a police officer later the same day, he admitted stealing it and took the police to his home where he asked his mother to lend him money so that he could repay the amount stolen. Later, when charged, he denied the offence. At-the trial he again denied it and gave evidence first that others in addition to himself had had access to the money and second that he had admitted stealing it only because the police officer threatened that, if he did not do so, he would be sent to prison for three years.

The evidence of the police officer to whom the appellant allegedly admitted the theft was that he questioned the appellant as a suspect. At first the appellant denied taking the money but, when it was pointed out to him that he had shown more knowledge of the money than he could have had if he had not stolen it, he admitted stealing it. No evidence was given that the appellant was cautioned at any time during the questioning. The appellant did not suggest to the police officer in cross-examination that he had threatened him. In his judgment, the learned magistrate rejected the evidence of the appellant regarding the threat.

A matter to which he gave weight in doing so was the: fact that the appellant did not cross-examine the police officer on the matter.

However, in no part of the judgment did the learned magistrate consider the question whether the manner in which the admission obtained was fair. If it was.-not obtained fairly, the evidence should have been rejected. Where a trial is before a judge or magistrate sitting alone, it is not necessary - although generally it is desirable for the issue of admissibility of the evidence to be tried on the voir dire, as he alone decides all questions of fact. Nevertheless, the judge or magistrate must address his mind to the question whether any of the evidence is "inadmissible", that is to say, would not have been admitted if a trial on the voir dire had been held, and consequently should not be taken into account in deciding the issue of the accused person's guilt. In this case, therefore, the magistrate should have given consideration to the question of the "admissibility" of the evidence of the appellant's confession.

He did, as already stated, reject the appellant's evidence that he admitted the theft because of a threat. However, one of two matters which he took into account in doing so was the appellant's failure to put his allegation to the police officer in cross-examination. The appellant was unrepresented and there is nothing on the record of the proceedings to show that his attention was drawn by the Court to the need to put his allegations to the witness in cross-examination. Generally, when an accused person who is unrepresented does not cross-examine a prosecution witness so as to impugn his evidence, the Court should, unless that evidence is merely formal, ask the accused whether he intends deny it or not. If the accused sass that he does intend to deny all, or some, of the evidence, the Court should assist him to put to the witness his own version of the facts.

In view of the failure of the learned magistrate to address himself to the question whether the verbal confession was obtained fairly and was made voluntarily and as he took into account as a ground for rejecting the appellant's evidence of the threat his failure to cross-examine the police officer, the evidence of that confession must be regarded as having been wrongly admitted. It should, therefore, not have been taken into account. The other evidence strongly implicated the appellant but was considered by the learned magistrate only as part of the whole prosecution case, including the confession. Although if accepted it would probably have been an adequate basis for the finding of guilt, it was not undisputed. The learned magistrate's decision to accept it may well have been influenced by his acceptance of the 'evidence of the confession. It would, therefore, be unsafe to uphold the conviction.

Accordingly the conviction is quashed and the sentence is set aside.