Wendo v Regina [1963] PGLawRp 283; [1963] PNGLR 242 (24 July 1963)

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The twenty-seven convicted natives applied to the High Court for leave to appeal against their convictions, the ground of the applications being that the statements to the Coroner should not have been submitted in evidence.

That it was open to the trial judge to admit the statements and the applications for leave to appeal should be refused.

Further, that the standard of proof of voluntariness of a confession is not proof beyond reasonable doubt. However, even if the standard required by law were proof beyond reasonable doubt there was ample evidence to justify findings that each of the confessional statements made to the Coroner was voluntary. Admissibility of evidence unlawfully or improperly obtained discussed.

DIXON CJ: In my opinion these applications should be refused. Since the hearing I have studied with some care the argument in support of the applications and considered the points made. I think they are fully answered by the judgment prepared by Mr. Justice Taylor and Mr. Justice Owen which also sets out fully the facts of the case. In that judgment I concur, subject to the following observations.

I do not think that the confessional statements made by the prisoners were obtained in any way unlawfully or improperly. I think that on the facts they were quite voluntary. It is therefore unnecessary to deal with the controversial question whether evidence which is relevant should be rejected on the ground that it is come by unlawfully or otherwise improperly. I do not think that in this or any other jurisdiction the question has been put at rest by Kuruma v. The Queen[cccxvii]¹ see Postscript at page 103 of Essays on the Law of evidence, Cowan and Carter (1956). Those interested in the question will find much information in the judgment of Frankfurter J. in Wolf v. Colorado[cccxviii]² which suggests that the British view is that public policy does not prevail over relevancy.

The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of general propositions laid down in Woolmington v. D.P.P.[cccxix]³ 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. In that connexion I may add that I do not quite understand what the late Starke J. meant by the statement in Sinclair v. The King[cccxx]⁴ when he said that a judge was entitled and bound to consider the probability of the mental condition (scil. of the prisoner) affecting the truth of a confession in all the circumstances of the case and to decide whether there was prima facie reason for presenting it to the jury. It appears to me that once it was established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its prohibitive value. See the discussion in Sinclair’s case[cccxxi]⁵. I do not think really that probative value is ever a question for the judge to decide conclusively. At all events I am not able to call to mind any conditions in which it would be.

TAYLOR J AND OWEN J: These are applications for leave to appeal made on behalf of twenty-seven natives of the Territory of Papua and New Guinea, who were convicted of the wilful murder of a native woman named Maga in or about the month of June 1961 and against each of whom sentence of death was recorded. Section 64 of the Papua and New Guinea Act, No. 9 of 1949, confers jurisdiction upon this Court to hear appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory, with such exceptions and subject to such conditions as may be provided by Ordinance. By Section 12 of the Supreme Court Ordinance 1949 made under the Papua and New Guinea Act it is provided that the appellate jurisdiction of the Court conferred by Section 64 of the Act shall be subject to two conditions, namely, that an appeal shall lie only with the leave of the Full Court of the High Court and that any such appeal shall be heard and determined by the Full Court.

The criminal law governing the Territory is to be found in the Queensland Criminal Code which has been adopted for use there and Section 301 of that Code provides that, with certain exceptions not material for present purposes, any person who unlawfully kills another, intending to cause his death or that of some other person is guilty of wilful murder. Section 568 (5) provides for the joint trial of accused persons in cases such as the present one and, by Section 1 of the Jury Ordinance, the trial of all issues both civil and criminal save in the case of a person of European descent charged with a crime punishable by death are directed to be held without a jury.

The applicants were tried at a place called Kerema in Papua by Ollerenshaw J., a judge of the Supreme Court of the Territory and a lawyer with considerable experience of the country and of its inhabitants. Five other natives were indicted along with the applicants but, at the close of the trial which began on 9th July 1962 and lasted for thirteen days, these five were acquitted. All the accused were represented at the trial.

The learned trial judge set out his findings on the evidence and the reasons for his conclusions with care and in detail in a judgment in which we have found much assistance. It is not easy for those who have had no experience of the Territory and its native peoples to appreciate fully the difficulties which must inevitably arise in a trial such as this where the accused persons were primitive natives living in wild and inaccessible country and with little or no knowledge of our laws and procedures. These difficulties are increased by the facts that communication with natives such as those concerned in the present case can only be had through a native interpreter who can speak their own language or dialect, and that the native interpreter must be told in pidgin-English what it is that he is to interpret to the native. For example, at this trial it was necessary to use two interpreters, one a white man able to translate the proceedings and the questions asked by the Court and by Counsel for the Crown and for the defence into pidgin-English, the other a native understanding pidgin and able to translate it to the witnesses and to the accused in their own tongue and to turn what was said by them into pidgin so that the white interpreter might then translate the pidgin into English for the understanding of those engaged in the conduct of the trial.

In order to understand the submissions made to us, it is necessary to give a short outline of the case. All the accused are Kukukukus speaking the Hawabanga dialect of the Kukukuku language. They live in mountainous and heavily timbered country in small family groups in villages which are sometimes closely and sometimes widely separated. They are a warlike race and were described by a District Officer as being “completely unsophisticated” and to have had “little contact with patrols”. Maga, the woman whose murder was charged against the accused, was one of thirty-one inhabitants of the village of Yaba which consisted of six native “houses”. Of those inhabitants, twenty-seven men, women and children were killed when a party of grown men, numbering at least forty, coming from various villages in the region of Yaba, entered that village before sunrise, rounded up its inhabitants and with the exception of the few who were able to escape, killed them with axes and other native weapons. Maga was one of those slain. All the grown male members of the raiding party which reached Yaba after a journey which took two days, did so with the common purpose of killing its inhabitants and, in one way or another, each took part in what occurred. These findings of fact, which were clearly open on the oral evidence, were not challenged before us.

It remained then for the learned trial judge to determine whether the accused or any of them were among the raiders. Oral evidence was forthcoming from native witnesses, who included two of the surviving inhabitants of Yaba, that all the accused were in the raiding party but, for the very sensible reasons which he gave, His Honour felt that it would be dangerous to act on this evidence of identification. There was, however, tendered in evidence a series of statements made by the twenty-seven applicants which had been taken down in writing by a Mr. Carey in circumstances to be described later. Mr. Carey was a senior officer of the Department of Native Affairs with many years’ service in the Territory. He was a commissioned officer in the Royal Papua and New Guinea Constabulary and the Assistant District Officer stationed at Kerema. By virtue of his office as Assistant District Officer, he was also a Coroner having jurisdiction, power and authority throughout the Territory. Objection was taken to the admission in evidence of these statements on the ground that they were not shown to have been made voluntarily but had been obtained unlawfully or had been induced by threats or that they had been obtained by unfair or improper means of such a nature as to require the trial judge to refuse to receive them in evidence. Section 68 of the Evidence and Discovery Ordinance, upon which reliance was placed for some of the submissions made on behalf of the applicants, provides that no confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown. The section is confined to “confessions”, that is to say, admissions of guilt of the crime charged: R. v. Lee[cccxxii]⁶; 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. Reliance was also placed upon the discretionary common law power of a trial judge to refuse to admit in evidence statements which are made voluntarily and are therefore not inadmissible as a matter of law, but which have been obtained by unfair or improper methods used by police officers in their interrogation of suspected persons or persons held in custody. In these cases, however, it is for the accused to establish the facts justifying the exercise of the discretion in his favour: R. v. Lee[cccxxiii]⁷ at page 153. These common law rules were discussed and explained in R. v. Lee[cccxxiv]⁸, and McDermott v. The King[cccxxv]⁹, and it is unnecessary to repeat what was there said. In the present case, after hearing lengthy evidence on the voire dire directed to the circumstances in which these statements came to be made, His Honour admitted them in evidence and it is against this ruling that leave to appeal is now sought by counsel for the applicants.

It is necessary now to describe the nature of the statements, the purpose for which they were used by the learned trial judge and the circumstances in which they were made. In each statement the person making it said that he was one of the party which had gone into Yaba on the occasion of the killing. In some cases the statement went on to admit participation in the killing, but in the majority of cases it denied any complicity in the killing and the person making it alleged that he had known nothing of it or had run away when the attack began or otherwise refrained from taking part in it. In each case His Honour, having satisfied himself, as has been said earlier, on the oral evidence that all the men who had entered Yaba had done so in pursuance of a common purpose to kill its inhabitants and that each had, in one way or another, assisted in the carrying out of the common enterprise, used the admission that the maker of the statement was one of the party which had gone into Yaba to link him with the crime and refused to accept as true exculpatory matter appearing elsewhere in the statement. No statements had been made by the five accused who were acquitted and since they could not therefore be connected with the killing they were acquitted.

The circumstances in which the statements came to be made were as follows: When news of the killing at Yaba reached Kerema, Mr. Carey left for Yaba with a small detachment of native constables and a number of carriers. The party left Kerema on 18th August and arrived at Yaba on 3rd September, where they met a Mr. Hastings, an Assistant District Officer stationed at Menyamya, who had also heard of the raid and had thereupon sent out a small patrol of native constables under First Class Constable Gaigo, who spoke the language of the Kukukukus of the Yaba region, to find out what had happened at Yaba. Constable Gaigo and his party had gone to Yaba and there seen the dead bodies of its inhabitants and spoken to some of the survivors and had returned to Menyamya where Constable Gaigo reported what he had seen and heard to Mr. Hastings. The latter thereupon set out for Yaba with a patrol of native police which included Constable Gaigo and there met Mr. Carey who was about to hold a Coroner’s inquest on the bodies.

The duties of a Coroner are laid down by the Coroners Ordinance Section 10 requires him to inquire into the manner and cause of death of a person who is killed and examine on oath, touching the death, all persons whom he thinks fit to examine or who, in his opinion, are able to give relevant evidence respecting the facts. After hearing the evidence, he is to give his decision or finding in writing setting forth, so far as they have been proved, the particulars of the identity of the deceased; how, when and where he came by his death; and, if he came by his death by wilful murder, the person (if any) suspected or accused of having caused the death by murder. If, at the close of the evidence, the inquisition charges a person with the offence of wilful murder, Section 21 provides that the Coroner shall read the charge to the person charged and “explain its nature in ordinary language” and say to him the following words or words to the like effect:

“Do you wish to be sworn and give evidence or do you wish to say anything? You are not obliged to give evidence nor to say anything and you will not be prejudiced in any way if you elect to remain silent. If you do wish to be sworn and give evidence or if you wish to make a statement, whatever you say, whether on oath or not, will be taken down in writing and may be given in evidence at your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt, but whatever you now say may be given in evidence upon your trial, notwithstanding any such promise or threat”.

Anything said then by the person charged is to be put into writing, read over to or by the person charged and signed by the Coroner and by the person charged if he so desires.

Having arrived at Yaba on 3rd September, Mr. Carey viewed the dead bodies of its inhabitants and, on the following day, opened an inquest on their deaths and heard evidence from some of the survivors of the killing and from a native named Pungaiwagabu, a relative of Maga, who had come to Yaba from a neighbouring village on the morning of the raid and had found Maga’s dead body. The inquest went on for about two months, sittings taking place at various villages and finally at Kerema. Most of the evidence was interpreted by a native named Autwatago, an interpreter stationed at Menyamya, the remainder by Constable Gaigo. Mr. Carey himself had had many years’ experience in speaking pidgin-English. In all fifty-seven witnesses were heard, including all the applicants. The inquest was then adjourned because committal proceedings were beginning before a Resident Magistrate at Kerema.

The search for persons who might be able to give information concerning the happenings at Yaba was made by Constable Gaigo and three other native police who also spoke the language of the natives in the area. For obvious reasons such persons as were found were not summoned to attend by service on them of subpoenas and the tender of conduct money. Such a procedure would have meant nothing to them. They had no understanding of the English language or of the written word; the idea of a Coroner’s inquest would be incomprehensible to them; until they could be found their names and their addresses (if such a word can be applied to them) were unknown; and most of them, having heard of the presence in the area of the patrols, had left their villages and hidden in the bush. The procedure followed was that Mr. Carey sent out Constable Gaigo and the other three constables into the surrounding country with instructions to search for and bring in persons who appeared to know anything about the happenings at Yaba. When a native was found who seemed to have some knowledge of what had occurred, Constable Gaigo would tell him, in his own language, that he was trying to get information about the trouble at Yaba and was going to take him to the camp and see the “Kiap” or District Officer and that “whatever talk you tell me I will tell the officer”. He would also say “I am taking you to the Kiap for questioning. Depending on the result of the questioning you may be detained or you may be allowed to return to your village. You should tell the Kiap if you went there”, that is to Yaba, “or if you did not go there. You should speak true.” Those who were found hiding in the bush and “were strong”, as Constable Gaigo described it, were handcuffed to prevent their escape and brought into the camp in handcuffs. On his return to camp after these expeditions Constable Gaigo reported to Mr. Carey in general terms what he had discovered during his searches for witnesses. At the camp those brought in were held in custody in temporary enclosures erected for that purpose and later, when Mr. Carey was sitting at Kerema, they were housed in the witnesses’ section at the gaol. The procedure at the inquest was as follows: Mr. Carey sat at a table in a tent in which a native constable was on duty. A witness would be brought in and usually his handcuffs were entirely removed. In the case of some of the men who it was thought might try to escape, the handcuff was removed from one wrist and clipped on to the other. Mr. Carey would then say in pidgin to the interpreter, who would in turn interpret it to the witness, that he had heard evidence which might implicate the witness or which threw suspicion on him; that he need not say anything; that he had nothing to fear from threats or to hope for from favours; and that if he decided to make a statement it would be taken down in writing and might be used at a later trial. In each case the warning given was written down by Mr. Carey. The witness was then “affirmed” by Mr. Carey in these terms “You are before a Court. All your talk must be true. You cannot tell lies to the Court. If you do tell lies you will be punished by the Court.” Sometimes the witness replied that he would tell the truth or that he would not tell lies or, in some cases, would at once begin to tell his story. The interpretation of what each witness said was written down by Mr. Carey. When the witness had finished, what had been written down was read back to him through the interpreter and he was asked whether it was true. Sometimes Mr. Carey asked a question to clear up some obscurity but the witnesses were not cross-examined by him. On occasions, when the statement was read back to a witness, he would ask for a correction to be made and, if he did so, it was made. Holding a pencil in his hand and guided by Mr. Carey the witness would then make his mark at the foot of the statement. It should be added that, except for what is stated above, none of the applicants was interrogated by police or other persons in authority while in custody.

What has been said about the circumstances in which the statements came to be made represents in a condensed form the material on which the learned trial judge had to decide whether they should be admitted in evidence. The arguments put to him against the admission of the documents took many forms, as did the submissions made on this application. It was contended that each of the applicants when he appeared at the Coroner’s inquest was an “accused person” within the meaning of Section 26 of the Coroners Ordinance which extends to such a person the right given to a “person charged with an offence” by Section 58 (1) of the Evidence and Discovery Ordinance. Section 58 (1) (i) of this last mentioned Ordinance provides (inter alia) that every person charged with an offence shall be a competent witness for the defence but “shall not be called as a witness except upon his own application”. For this reason, it was said, the applicants should not have been called as witnesses before Mr. Carey since none of them had applied to give evidence and the statements they had made should therefore not be admitted at the trial. This submission was rejected by His Honour who rightly took the view that at the time when each of the applicants made his statement to Mr. Carey he was not “an accused person” or “a person charged with an offence”. Before this Court, counsel for the applicants placed no reliance on this point. He contended, however, that for other reasons the statements were inadmissible. The applicants had not been summoned before the Coroner by subpoena but had been unlawfully attested and held in custody and in such circumstances their statements to Mr. Carey should not have been admitted. Furthermore, Mr. Carey in addition to being a Coroner was also the officer in charge of the native constables who had been sent out to find persons who could give an account of the killings. The functions of Coroner and Police Officer were not compatible and the inquest should therefore be regarded as a police investigation of a kind which required that statements made by the applicants in the course of it should be rejected. Our attention was also drawn to the fact that the “affirmation” administered to the applicants by Mr. Carey was not in the form set out in the schedule to the Oaths Ordinance. Section 22 (1) of that Ordinance provides, however, that if in any civil or criminal proceeding it appears to the Court or a justice or person authorized to administer an oath that a witness is incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration in the schedule, it shall be the duty of such court, justice or other person authorized to administer the oath, if satisfied that such person if called as a witness understands that he will be liable to punishment if his evidence is untruthful, to declare in what manner the evidence of such person shall be taken and the evidence so taken shall be valid as if an oath had been administered in the ordinary manner. The form of “affirmation” administered by Mr. Carey was one which is in common use in the Territory when evidence is taken from native witnesses and the fact that Mr. Carey administered it sufficiently shows that he declared the manner in which the evidence was to be taken. But submissions based wholly upon suggested illegalities or informalities in bringing the applicants before Mr. Carey and in the taking of their statements fail to take account of the real issues which the learned trial judge was required to decide on the voir dire. Those issues were whether the statements were voluntary or, in the alternative, whether, being voluntary, they had been obtained in the course of the investigation by the use of unfair or improper methods so as to make it right as a matter of discretion to reject them. The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence: Reg. v. Leatham[cccxxvi]¹⁰; R. v. Reed[cccxxvii]¹¹; Lloyd v. Mostyn[cccxxviii]¹²; Calcraft v. Guest[cccxxix]¹³; Bell v. David Jones Ltd.[cccxxx]¹⁴; Kuruma v. The Queen[cccxxxi]¹⁵, although if it has been so obtained that is a matter to be considered, along with all the other relevant circumstances, in determining whether the evidence should be admitted against an accused person in a criminal trial. That the applicants were kept under restraint and were brought before Mr. Carey in custody were relevant circumstances in determining the issues which the learned judge had to consider, as were the statements made to the applicants by Constable Gaigo before he brought them into camp and the statements, including the “affirmation”, made by Mr. Carey when each of the applicants appeared before him at the inquest. And all these circumstances were rightly taken into consideration by His Honour.

Counsel for the applicants further submitted that what had been said to the applicants by Constable Gaigo when he took them into custody in the course of his search for witnesses amounted to a threat that if they refused to tell the “Kiap” whether they had gone to Yaba or not they would not be allowed to return to their villages. The learned trial judge did not accept this contention and, in our opinion, he was entitled to reject it. Furthermore, His Honour considered that, even if what was said by the constable did constitute a threat, its effect would have been removed by Mr. Carey’s later statement to each of them that he need not speak. Similar submissions were made in relation to Mr. Carey’s statements, including the “affirmation”, made by him to each of the persons brought before him during the inquest. The learned trial judge, however, after considering all these matters, was satisfied beyond reasonable doubt that the statements of the applicants had not been induced by any threat or promise and had been made voluntarily. He was also of opinion that nothing had occurred which would have made it proper to reject the statements as a matter of discretion. He gave his reasons for these conclusions at length. There was, he found, “no trap, no trick and no importunate seeking of evidence . . . . There was no interrogation or cross- examination of witnesses upon their stories which they gave in their own words after being cautioned and told that they need say nothing.” He took into account also the difficulty of ascertaining whether the warning given to each applicant by Mr. Carey that he need not speak unless he so desired had been understood and appreciated by the person to whom it was addressed. The conclusions ultimately reached by His Honour were clearly open to him, and he was in a better position to decide the question than is an appellate court. We should perhaps add that in the case of the majority of the statements made to Mr. Carey, the impression left in our minds is that the persons who made them were very ready and willing to take advantage of the opportunity of denying their complicity in the killing.

There remains one further matter to be considered. In determining whether the statements were shown to have been made voluntarily, the learned trial judge applied the standard of proof beyond reasonable doubt, as he had in an earlier case of Reg. v. Toronome[cccxxxii]¹⁶ to which he made reference in the course of his reasons. The same rule was applied in the Territory by Mann C. J. in Reg. v. Banji and Ors. and by Smithers J. in Reg. v. Fari-Pako^*[cccxxxiii]¹⁷ . Counsel for the applicants contended that this was the proper standard to be applied by a judge who is called upon to decide on the voire dire whether a confessional statement has been shown to have been made voluntarily and he submitted that in all the circumstances of this case it was impossible for His Honour to have been so satisfied. In support of his submissions as to the degree of proof required, he referred us to Reg. v. Sartori[cccxxxiv]¹⁸ in which Edmund Davies J., sitting at the Central Criminal Court in London, held that the burden of proof on the prosecution to satisfy the judge that a statement is voluntary is the same as that which rests on the prosecution to satisfy the jury of the guilt of the accused, and to Reg. v. McLintock[cccxxxv]¹⁹ in which the Court of Criminal Appeal in England is reported to have said that this is the appropriate test. 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. Other illustrations were given by Lord Denman C.J. in Doe v. Davies[cccxxxvi]²⁰ where His Lordship said:

“There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence; and apprehension of immediate death to admitting evidence of dying declarations; and search to secondary evidence of lost writings; and stamp to certain written instruments: and so is consanguinity or affinity in the declarant to declarations of deceased relatives”.

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. As Starke J. said in Cornelius v. The King[cccxxxvii]²¹: “The judge merely decides whether there is prima facie any reason for presenting the evidence at all the jury”; and in Sinclair v. The King[cccxxxviii]²² the same learned judge said:

“But then it was contended that the mere possibility that the confessions were the result of a disordered mental condition was sufficient to exclude them from evidence. Again I am unable to agree. A judge is not bound to exclude a confession from evidence because of such a possibility. He is entitled and bound to consider the probability of the mental condition affecting the truth of a confession in all the circumstances of the case and to decide whether there is prima facie reason for presenting it to the jury”.

We have no doubt that this correctly states the rule whether the question arises in the course of the case for the Crown or during the evidence for the defence. 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 and it will often happen that, in applying that standard, the tribunal of fact will properly be asked to take into account evidentiary material placed before it which has earlier been elicited on the voir dire.

There are two answers to the final submissions made by counsel for the applicants. The standard of proof which the learned trial judge applied was a higher standard than the law requires. And even if the standard required by law had been that of proof beyond reasonable doubt, there was ample evidence to justify findings that each of the statements was voluntary.

For all these reasons we are of opinion that the applications for leave to appeal should be dismissed.

Solicitor for the applicants: R. W. Hawkins, Public Solicitor for the State of New South Wales.

Solicitor for the respondent: H. E. Renfree, Crown Solicitor for the Commonwealth of Australia.

[cccxvii](1955) A.C. 197.

[cccxviii][1949] USSC 101; (1949) 338 U.S. 25, 28: 29: 39: [1949] USSC 101; 93 L. Ed 1782: 1786: 1791 (Table J.)

[cccxix](1935) A.C. 462.

[cccxx]73 C.L.R. at p. 328.

[cccxxi]73 C.L.R at p. 328

[cccxxii]82 C.L.R. 133.

[cccxxiii][1950] HCA 25; 82 C.L.R. 133.

[cccxxiv]82 C.L.R. 133.

[cccxxv]76 C.L.R. 501.