State v Toiamia [1978] PGNC 6; N145 (25 May 1978)

Unreported National Court Decisions

N145

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
AUGUST TOIAMIA

Rabaul

Wilson J
17-19 May 1978
25 May 1978

CRIMINAL LAW - evidence - confessional statements, admissibility of and discretion to exclude - untrue representation designed to trick - inducing confession - matters to be considered in exercising discretion - The Queen v. Ireland [1970] HCA 21; (126 C.L.R. 321) referred to - principles in McDermott v. the King (76 C.L.R. 501) and The King v. Lee [1950] HCA 25; (82 C.L.R. 133) discussed and applied - Constitutional Reference No. 1. of 1977 (S.C. No. 122) followed.

CRIMINAL LAW - evidence - confessional statements made following inducement - what constitutes an inducement by police - proof that confession was in fact induced not required.

WILSON J: Thused, August Toiamia, isa, is charged on indictment with the wilful murder of one Peter Kaia. It is alleged by the State that the accused on or about Saturday 26th November 1977 struck the deceased with a bush knife and a piece of timber intending to kill him. It is further alleged that the deceased died as a result of the blows struck by the accused.

There were apparently no eye-witnesses to what happened in the early hours of the morning of the 26th November after a drinking party had finished. At any rate no such witnesses were called by the State. The prosecution witnesses who were called (apart from the police witnesses) gave evidence from which it might be inferred that the accused and Herman Minakot or one of them had the opportunity to kill the deceased. Their evidence was circumstantial evidence which was consistent with the deceased having been killed by the accused and Herman Minakot or one of them.

In the original indictment as presented by the State both the accused and Herman Minakot were jointly charged with this wilful murder. However, immediately after the indictment had been presented to the court, the State Prosecutor presented to the court a nolle prosequi, whereupon Herman Minakot was forthwith discharged from any further proceedings on the indictment to which it related, pursuant to s.539 of the Criminal Code Act 1974. The indictment was then amended by leave to delete all references to Herman Minakot.

The State has sought to adduce confessional evidence against the accused. It is alleged that Sub-Inspector Nelson Kompaon and Sergeant Francis Gagin conducted a Record of Interview with the accused on Sunday 27th November 1977 and that, in that Record of Interview, certain admissions were made. The confessional evidence having been objected to by counsel for the accused, a voir dire examination was held. In the light of that examination I am now called upon to give a ruling as to the reception of that confessional evidence. Two questions are involved; the first relates to the admissibility of the alleged confession, and the second relates to the question of whether, if the confession is otherwise admissible, I should exercise my discretion to exclude it notwithstanding its admissibility.

During the voir dire examination, the State called three witnesses: Sub-Inspector Nelson Kompaon, Constable Francis Gagin and Inspector Joe Giwar. The defence called two witnesses: the accused himself and Herman Minakot.

The defence relied upon a number of grounds for excluding the confessional evidence. It was contended that the State had not proved that the confession had been made freely and voluntarily and that, accordingly, the confession was inadmissible. It was also contended that the confession had been induced by threats or promises made by the police and that, accordingly, it was inadmissible by virtue of s.86 of the Evidence Act, 1975. I can indicate immediately that there is no evidence that this confession had been induced in contravention of s.86. That section deals only with threats and promises inducing confessions. It was also argued that I should exclude the confessional evidence in the exercise of my judicial discretion.

It is convenient to deal first with the contention that I should exclude the confessional evidence in the proper exercise of my discretion. I was invited so to exercise my discretion upon the ground that the confession had been induced by an untrue representation made to the accused by Sub-Inspector Kompaon, viz. that Herman Minakot had admitted the killing and had implicated him (the accused). I was invited to conclude that the confession had been obtained by something in the nature of a trick. It was submitted that, for me not to do so, the strict rules of evidence would operate unfairly against the accused.

I should now turn to the evidence that was given during the voir dire examination.

The accused gave evidence on oath and told me (and I so find) that on Saturday 26th November, 1977, he was taken to the Rabaul Police Station and was questioned in the evening about the alleged wilful murder of Peter Kaia. He said that the police accused Herman Minakot and himself of killing the deceased. He said that he (the accused) denied it. He said that he was questioned in one room of the C.I.B. office and that Herman Minakot was questioned in another room. He said that he was questioned by Sub-Inspector Kompaon. He further said that, after his denial of having killed Peter Kaia, Sub-Inspector Kompaon said that Herman Minakot had been asked about the killing and that Herman Minakot had implicated him, viz. by accepting (or admitting) that the two of them had killed Peter Kaia. The accused said that Sub-Inspector Kompaon wrote down what was said on the Saturday evening. This fact is confirmed by Sub-Inspector Kompaon himself who, in examination-in-chief, stated that those who were involved in drinking jungle juice at the home of Moses at Malabanga High School (including the accused) were brought into the station and “statements were taken from them”. It is to be noted that no evidence was produced by the State to rebut that statement. Such written statements as were taken apparently cannot be found. The accused said that, after spending the night in the cells at the Rabaul Police Station and without seeing or speaking to Herman Minakot, he was questioned the following morning once more by Sub-Inspector Kompaon, this time in a formal Record of Interview. He said that he made admissions in those answers. He said that he had believed what Sub-Inspector Kompaon told him the night before. Indeed, he said that Sub-Inspector Kompaon told him many times that Herman had implicated him.

Herman Minakot also gave evidence and told me that he too was taken to the Rabaul Police Station and questioned about the alleged wilful murder. He said that he was questioned by both Sub-Inspector Kompaon and Inspector Joe Giwar. He said that he was questioned in one room and the accused was in another room. He said that, while in the room, he was questioned by Inspector Giwar about the murder, and that the Inspector told him that the accused had admitted it. He said that Sub-Inspector Kompaon had kept on accusing him and the accused of killing the deceased. Herman Minakot said that, after spending the night in the cells, he was questioned the next day in a formal Record of Interview.

Sub-Inspector Kompaon in cross examination on the voir dire denied that he asked the accused any questions about the murder on the afternoon of Saturday 26th November. The Sub-Inspector also denied that he spoke to Herman Minakot about the murder on the Saturday.

Sub-Inspector Kompaon denied that he had read the Record of Interview between Inspector Giwar and the accused. I find that incredible, especially when it is realised that it was not in dispute that Sub-Inspector Kompaon was solely in charge of the murder investigation.

Constable Francis Gagin was Sub-Inspector Kompaon’s corroborator as far as the Record of Interview was concerned. I see no reason to doubt his evidence as far as it goes. As there is no evidence as to Constable Gagin’s being involved in the events of the previous day and, in particular, being present when the accused was spoken to by the police on the Saturday, I can well understand the constable reaching the conclusion in his mind that the Record of Interview was free and voluntary as far as the accused was concerned. Had Constable Gagin known what Inspector Giwar told me, his conclusion might have been different. Had Constable Gagin known that Sub-Inspector Kompaon acted in the way I have found that he did on the Saturday, likewise his conclusion might have been different.

Inspector Joe Giwar gave evidence for the State during the voir dire examination. He is the officer-in-charge of the C.I.B. in Rabaul. He told me that on the Saturday the investigation commenced. He said that Sub-Inspector Kompaon was sent to the scene and later came back with some witnesses including Herman Minakot. He said that he and Sub-Inspector Kompaon took Herman Minakot to the scene of the killing and that Herman Minakot showed them where the deceased was lying on the road and where he had been lying. After returning to Rabaul late that night (at about 7.00 p.m.) the two Inspectors decided to charge both the accused and Herman Minakot with offences relating to a stolen tape-recorder. It was, as Inspector Giwar put it, a “holding” charge. The Inspector said that neither on Saturday night nor on Sunday (when a Record of Interview was conducted) did Herman Minakot make any admissions or confessions in relation to the wilful murder. Inspector Giwar also told me that on the Saturday he saw the accused at the Police Station when Sub-Inspector Kompaon was questioning the accused about the murder. The Inspector’s evidence thus corroborates the accused’s story in this regard (it will be remembered that the accused said that he was questioned on the Saturday about the wilful murder) and is in conflict with the evidence of Sub-Inspector Kompaon who denied that he asked the accused any questions on the Saturday about the murder.

Inspector Giwar told me that he questioned Herman Minakot about the murder on the Saturday thereby confirming what the accused and Herman Minakot had told me. Under cross-examination Inspector Giwar agreed that he and Sub-Inspector Kompaon had interviewed the accused (and Herman Minakot) on the Saturday night. In this respect Inspector Giwar corroborated the evidence of the accused. He also supports the accused’s story that he (the accused) had denied the killing. Inspector Giwar said:

“It was true. I talked to him (the accused), but there was nothing really. We were more or less making initial enquiries.”

The significance of that piece of evidence is that, whether or not the police thought there was any importance in the conversation and however they saw fit to describe their enquiries (i.e. whether as initial enquiries or otherwise), the plain facts of the matter (and I find accordingly) are that Sub-Inspector Kompaon and Inspector Giwar did interview the accused on the Saturday night about the murder (as the accused stated was the position and as Sub-Inspector Kompaon denied on oath) and that the accused (and Herman Minakot) did deny the killing of Peter Kaia (likewise as the accused stated he had and as Sub-Inspector Kompaon denied). I accept the evidence of Inspector Giwar in preference to that of Sub-Inspector Kompaon wherever their evidence is in conflict.

Inspector Giwar said that it was true that, after Sub-Inspector Kompaon, Herman Minakot and he had been out to the scene of the crime on Saturday morning, they (the two inspectors) “continued to interview” the accused and Herman Minakot with each “blaming the other”. His evidence thus supports the accused’s story that he was questioned about the murder on the Saturday and is in direct conflict with Sub-Inspector Kompaon’s denial that there was any questioning of the accused on the Saturday about the murder.

Inspector Giwar stated in cross-examination that the two inspectors and the accused went to the scene of the crime on the Saturday evening and the accused showed them a piece of timber (Exhibit P6). That evidence is in direct conflict with the evidence of Sub-Inspector Kompaon who strongly denied that the accused accompanied the two inspectors to the scene.

Inspector Giwar admitted in cross-examination that on the Saturday evening, when the accused and Herman Minakot were being interviewed in separate rooms, he went to the room where Sub-Inspector Kompaon was interviewing the accused and they had a conversation. It is to be noted that Sub-Inspector Kompaon denied that Inspector Giwar had come to his room during this interview with the accused. The conflict between the two inspectors is significant. I am led firmly to the conclusion that such a conversation did take place and that it led to the accused being told (falsely, in my view, and knowingly falsely) that Herman Minakot had implicated him by admitting that the two of them had killed Peter Kaia.

In his cross-examination on the voir dire examination a number of questions were put to Inspector Giwar appertaining to his questioning of Herman Minakot in the Record of Interview with that man on Sunday 27th November. Those questions, which the Inspector admitted were asked by him, were couched in such a way as to leave one with the clear impression that Inspector Giwar’s approach to the Record of Interview with Herman Minakot was to a substantial extent a matter of putting to him statements allegedly made by the accused and implicating Herman Minakot. Sub-Inspector Kompaon had denied that any admissions had been made by the accused until the Record of Interview conducted between himself and the accused.

It is difficult on the evidence of the two inspectors to reach a satisfactory conclusion one way or the other as to whether any admissions were made on the Saturday and, if so, by whom, especially in the light of Sub-Inspector Kompaon’s denials that he even spoke to the accused about the murder. One thing is clear, however, and that is that Inspector Giwar in his Record of Interview with Herman Minakot used the technique of putting to Herman Minakot statements allegedly made by the accused and implicating Herman Minakot. Several of his questions were prefaced with the words “Your brother said ... ” I feel satisfied that a like technique was used by Sub-Inspector Kompaon in his questioning of the accused about the murder on the Saturday. Because Sub-Inspector Kompaon made what in my view were false denials that any such questioning took place and certainly gave evidence which was in conflict with that of Inspector Giwar in many respects, I am led to the conclusion that the police, faced with a lack of direct evidence against either of the two suspects and having nothing more than circumstantial evidence of opportunity to commit the crime but yet suspecting these two men as the killers, proceeded to use unfair tactics. Representations were made to this accused to the effect that Herman Minakot had allegedly implicated the accused; those representations were made with a view to inducing a confession; such representations were wilfully false. Perhaps in order to conceal the fact that such false representations had been made Sub-Inspector Kompaon decided to deny that any questioning of the accused regarding the murder took place on the Saturday. The police have done nothing to dissuade me from reaching such a conclusion (one which I find unpalatable in the extreme) by the conflicts which exist before the evidence of the two inspectors and by the failure either to produce statements or notes of conversations which were almost certainly kept or to record important admissions which were said to have been made.

Inspector Giwar finally admitted in cross-examination that he and Sub-Inspector Kompaon had discussed the matter on the Saturday evening. He admitted that each had told the other that certain admissions had been made by each of the two suspects. The concession by Inspector Giwar that the accused (and Herman Minakot) made admissions on the Saturday, in the light of Sub-Inspector Kompaon’s denial that the accused was questioned about the murder at all on the Saturday, puts the whole police evidence squarely into the category of the unsatisfactory. It is so unsatisfactory that I feel compelled to draw the inferences which Mrs Ridsdale, on behalf of the accused, has invited me to draw. I find therefore, on the evidence that is before me, that a false representation was made to the accused in the nature of an untrue statement designed to trick him into making a confession.

I have therefore decided in the exercise of my discretion to exclude the confessional statement that is contained in the Record of Interview. It is not necessary for me to deal with the question of whether or not the alleged confession was free and voluntary and therefore prima facie admissible. For the purposes of my decision in relation to the exercise of discretion, I have assumed that it was so. However, it should be said, without deciding the point, that the conflicts in the evidence of the two inspectors and the differences in their testimony, which plainly cannot be satisfactorily reconciled, may have led me, had I had to go that far, to doubt the voluntariness of the alleged confession.

In reaching a conclusion about the exercise of the court’s discretion I have had particular regard to the following facts which I find have been established:

1. ټ&##160; T60; That that the accused is an unsophisticated and apparently uneducated national with no grasp of the English language and not a full grasp of the Pidgin language.

2. ҈& T60; The acce accused was held in custody from Saturday until Sunday on a “holding” charge only (relating to a tape-recorder) when he an polire weare that a murder investigation was unds under waer way. The charges relating to the tape-rape-recorder were never proceeded with, and I cannot do other than conclude, in the absence of any satisfactory explanation to the contrary, that Inspector Giwar was acknowledging, when he used the expression “holding charge”, that there had been some abuse of the power of arrest.

3. ҈ The accused was keps kept in the cells overnight.

4. &##160;; I60was was misrepisrepresented to the accused (wilfully and falsely) that Herman Minakot had implicated the accused in the crime by admitting that the t themkille deceased.

5. &#160 The impression sion producroduced by the representation was not subsequently removed.

6. The accused was subjected over the period of the two days (i.e. Saturday and Sunday) to a series of interrogations.

7. The accwsed t s ast eaprehpprehensive and probably frightened.

I agree with Bray, C.J. who in the recent South Australian case of Walker v. MarklewN145.html#_edn86" title="">[lxxxvi]¹ said:

“I realize, of course, that it is natural that a zealous or even a merely conscientious police officer should wish to clinch his case by a confession. But the law prescribes rules about the arrest and the interrogation of suspects and the limitations observed by those rules must be obeyed. If they are not, the result may well be, though it will not always be, that evidence so obtained will be rejected. As I have just said, the community has an interest in the detection and punishment of crime and also an interest in the safeguarding of the legal rights and liberties of the citizen, and police officers should be as ready to recognize and promote the second as the first.”

The reason why special care needs to be taken when police are interrogating persons in custody is found in the following passage from judgment of Hayes, J. in R. v. JohnstonN145.html#_edn87" title="">[lxxxvii]²:

“It is manifest to everyone’s experience that, from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change, and he naturally becomes much more accessible to every influence that addresses itself either to his hopes or fears.”

In The Queen v. IrelandN145.html#_edn88" title="">[lxxxviii]³ Barwick C.J. discushe reasoreasons behind the rules regarding admissibility and the exercise of judicial discretion. The learned Chief Justice of Australia said:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”

In so far as the fact that an inducement was made here has influenced me to exclude the alleged confession in the exercise of my discretion and might have (if it had been necessary to do so) led me to the conclusion that the State had not proved that the alleged confession was a voluntary one, I should point out that the old common law rule regarding inducements was no doubt to prevent accused persons from being entrapped into making an admission or statement by being led to believe that there was a stronger case against them than that which actually existed. R. v. DavidsonN145.html#_edn89" title="">[lxxxix]⁴. The common law has always been opposed to the admission of confessions obtained by such means. The common law has been opposed to accused persons being misled to their own prejudice by false statements being put to them in order to trap them or which have the effect of trapping them into an admission.

In R. v..DavidsonN145.html#_edn90" title="">[xc]⁵ (suWindeyer J. (with whom Mhom Manning and Cohen, JJ each concurred) said:

“Cases might easily be suggested where persons, in point of fact innocent, might be induced by promises, th, or misrepresentations to s to make statements which tended to incriminate them, and the common law has always been opposed to the admission of confessions obtained by such means.”

Mr Maraleu, who appeared for the prosecution in this trial, urged me to reject the defence contention about the inducement upon the ground that the accused at no time said in so many words, or in words from which it might be inferred, that he thought that he made the confession because of the inducement. When asked why he answered questions which led to the admissions, he said on three occasions that he answered or mentioned them or admitted them “for nothing” and on another occasion he said he was afraid. The English cases (to which reference will be made later in this ruling) show that the defence does not have to show that the inducement actually induced the confession in a causative sense; all that is necessary for the defence to show, in a situation as here, is that the inducement preceded the confession and that the inducement had not been removed.

The distinction between ruling involuntary confessional statements to be inadmissible and excluding otherwise admissible confessional statements improperly procured by the police was explained in a masterful way by Dixon J. (as he then was) in McDermott v. The KingN145.html#_edn91" title="">[xci]⁶:

“In considering (whether to admit evidence or not) it is important to distinguish between the imperative rules of law requiring the rejection of confessional statements unless made voluntarily and the so-called discretion of the Court to exclude evidence of such statements if the manner in which they were obtained is considered to have been improper...

...At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave, J. in R. v. Thompson ((1893) 2 Q.B.D. 12 at p.17).”

I consider that an inducement may take many forms including fear of prejudice or hope of advantage exercised by or held out by the person in authority. That is the classical ground for the rejection of confessions and is most often discussed in the authorities. In considering what the common law regarding inducements is in Papua New Guinea at this time, it would be necessary to apply the principles and rules that formed, immediately before Independence Day, the principles and rules of the common law in England as one applicable and appropriate to the circumstances of this country at this time - Schedule 2.2 of the Constitution. Untrue representations made to an accused person as well as threats and promises held out to him by persons in authority may well come within the principles and rules of the common law - see the English cases referred to later in this ruling. Even if it is otherwise and the common law in England excludes such representations from that class of inducement which renders inadmissible confessions made following such inducements, then that principle or rule of the common law in England may not be applicable and appropriate to the circumstances of Papua New Guinea at this time. The principle underlying the common law rules, being a flexible one, may not be limited by any category of inducement that may prevail over a man’s will, a fortiori over the will of an unsophisticated and uneducated Papua New Guinean. However, as I have indicated, it is not necessary for me to decide whether the alleged confessional statement is admissible because, even if it is, I exclude it in the exercise of my discretion.

Referring to the discretion to exclude otherwise admissible evidence, the practice has arisen of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner. As Dixon, J. said in McDermott v. The KingN145.html#_edn92" title="">[xcii]⁷ (supra):

&#8220abuseabuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an improp justifying the exclusion of the evidence ... Convictions (ons (will be quashed) where evidence has been received which in the opinion of that Court has been obtained improperly, that is, in some such manner...

...In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.”

The former Chief Justice of Australia, when considering the facts in that case, placed some emphasis upon the fact that no attempt had been made to “entrap, mislead or persuade” the accused into answering questions at all or answering them in a particular way. In the present case the fact that an attempt was made to “entrap, mislead or persuade” this accused is significant.

In The King v. LeeN145.html#_edn93" title="">[xciii]⁸ LaC.J., McTiernan, Webb, Fub, Fullager, Kitto, JJ developed these principles further and said:

“If (the statement) isntary, circumstances may be proved which call for an exercise of discretion. The only circucircumstance which has been suggested as calling for an exercise of the discretion is the use of “improper” or “unfair” methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham C.J. in McDermott v. The King ((1948) 76 C.L.R. at pp. 506-7) said that the trial judge had “a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.”...In our opinion the rule is fully and adequately stated in (that passage and in the passage quoted from McDermott v. The KingN145.html#_edn94" title="">[xciv]⁹ (supra) of Dixon, J.) Whaimis impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances oh particular case, and no a no attempt should be made to define and thereby to limit the extent of the application of these conceptions.”

Also in The King v. LeeN145.html#_edn95" title="">[xcv]¹⁰ (supra) their Honours sap>

“Surely, if the judge thought that the ‘impropriety’ was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given.”

The Full Bench of the High Court of Australia in that case went on to state at p. 159:

“It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated - perhaps semi-illiterate - man who has a “record” and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so overpowering that a “statement” may be “taken” which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the “statement” made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them...But, where intelligent persons are being questioned with regard to a murder, the position cannot properly be approached from quite the same point of view.”

I agree that no better guidance (for police officers) is to be found than in the passages from the judgment of Street, J. in R. v. JeffriesN145.html#_edn96" title="">[xcvi]¹¹:

“The obligation resting upon the 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 interests 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...” The emphasis is mine.

Bearing in mind the National Goals and Directive Principles that underlie the Constitution of Papua New Guinea and, in particular, the basic rights protected under the Constitution, it is important to recognise that this country not only has an interest in the detection and punishment of crime but also has an interest in the safeguarding of the legal rights and liberties of the citizen. Police officers should be as ready to recognise and promote both concepts. For the courts to condone serious breaches of the rules of the law, justice ceases to be justice at all, and the way is left open for anarchy to encroach into our society.

Before turning to a consideration of the more recent English authorities, I should make reference to the two Papua New Guinea cases cited by counsel. In both Regina v. Toronome-TombarbuiN145.html#_edn97" title="">[xcvii]¹² (a decisi Ollerenshaw, J.) J.) and in Regina v. Kar Moro and 16 othersN145.html#_edn98" title="">[xcviii]¹³ (a den of Lalor, J.) the cohe court applied the principles set out in McDermott v. The KingN145.html#_edn99" title="">[xcix]¹⁴ (supra) anThe K. LeeN145.html#_edn100" title="">[c]¹⁵ (supra). Those same pples aere approved and, to an extent, extended by the Supreme Court of Papua New Guinea in a in Constitutional Reference No. 1 of /i>N145.html#_edn101" title="">[ci]¹⁶&#160 whicision, of course, is biis binding on me.

In Kuruma v. The QueenN145.html#_edn102" title="">[cii]¹⁷

“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained...”

and (at p. 204):

“....No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasised in the case before this Board of Noor Mohamed v. The King ((1949) A.C. 182, 191-2) and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions ((1952) A.C. 694, 707). If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.” Again the emphasis is mine.

In Callis v. GunnN145.html#_edn103" title="">[ciii]¹⁸ Parker, . when sitting in t in the Divisional Court in England considered the discretion of the Court to exclude fingerprint evidence thd been obtained oppressively. In his judgment (with which Ashworth and Hinchliffe, JJ agreeagreed) His Lordship said:

“In my judgment, fingerprint evidence taken in these circumstances is admissible in law subject to this overriding discretion. That discretion, as I understand it, would certainly be exercised in excluding the evidence if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of that sort.” Again the emphasis is mine.

The meaning of the word “oppression” was discussed by Sachs, L.J. in Martin Priestley (Note)N145.html#_edn104" title="">[civ]¹⁹:

“...to my mind, this word in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary ... Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.

What are some general points to be regarded in a case of this kind? First, it has been, ever since the first Judges’ Rules were enunciated, and it remains the position that, as stated in Rule I ‘When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question all persons, whether suspected or not, from whom he thinks that useful information may be obtained’. This has now been added: ‘This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.’ In these days of ever-mounting crime, it is indeed essential not to fetter the hands of the police unnecessarily so as to hinder them in their difficult and vital tasks. They always remain a target for criticism even when correctly doing their duty. Only if they exceed the bounds laid down either by the Judges’ Rules or by the common law or indeed common decency, judges will then exclude statements thus obtained.

Next to be noted is that to point out to a man that he is lying is not of itself either oppressive or wrong. Nor is it oppressive or wrong to give a man a further opportunity to tell the truth. The motives that may lead a man who finds that the basic untruth of a previous statement has been discovered to make a further statement are probably as varied as human nature itself, and the motives may be mixed. To mention only some on this scale of almost infinite gradation, there may be remorse coupled with a desire to get the matter off the man’s conscience. That may produce the moment for telling the truth. Again, it may be some almost unconscious desire simply to tell the truth on that particular occasion; sometimes there is such an impelling desire. Again, it may be the quickly calculated or indeed the long-calculated moment when it is decided that it is now best to tell the truth and that the truth, at any rate, has within it the seeds of mitigation.

But the courts are not concerned with ascertaining the precise motive of a particular statement. The question before them is whether the prosecution have shown the statement to be voluntary, whatever the motive may be, and that is always the point to which all arguments must return. To solve it, the court has to look to the questions which I have already mentioned. First, was there in fact something which could properly be styled or might well be oppression? Secondly, did whatever happened in the way of oppression or likely oppression induce the statement in question?”

Inducements were considered by the Court of Appeal in John Gerald NorthamN145.html#_edn105" title="">[cv]²⁰. In that case Winn, L.J. said:

“In Commissioners of Customs and Excise v. Harz and Power 51 Cr. App. R. 123; (1967) 1 A.C. 760, recently decided in the Lordships’ House, there is a very interesting passage in this connection in the speech of Lord Reid (at pp. 158 and 820 of the respective reports). He was speaking there of a suggested rule that it was only inducement which related to the charge which had been made or was contemplated against the individual which amounted to a vitiating inducement. ‘One suggested justification of this rule appears to be that the tendency to exclude confessions which followed on some vague threat or inducement had been carried much too far, and that the formula set out in many textbooks affords a useful and time-honoured way of limiting this tendency. The common law, however, should proceed by the rational development of principles and not by the elaboration of rules or formulae. I do not think that it is possible to reconcile all the very numerous judicial statements on rejection of confessions, but two lines of thought appear to underlie them; first, that a statement made in response to a threat or promise may be untrue or at least untrustworthy, and, secondly, that nemo tenetur seipsum prodere. It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men or women; they may be very ignorant and terrified by the predicament in which they find themselves. So it may have been right to err on the safe side.’

In giving judgment in Richards, 51 Cr. App. R. 266 at p. 268; (1967) 1 W.L.R. 653 at p. 655, I myself said that there was a distinction, as it seemed to the court in that case, to be kept in mind always between inducement by persons not in authority, with regard to which the proper test the court then said must be whether a confession was in fact induced, whether there had been a persuasion of the will of the individual to make such a confession, whereas in the case of inducements by persons in authority, in particular police authority, the question was, was any offer or promise made which was capable of constituting an inducement, as distinct from one which in fact induced? Lord Reid himself in an earlier passage of his speech in Commissioners of Customs and Excise v. Herz and Power (at pp. 156 and 819 of the respective reports) recognised that there have been cases to be found in the books where no inducement was held out at all...”

Perhaps the best review of the authorities is to be found in the Privy Council decision in King (Herman) v. R.N145.html#_edn106" title="">[cvi]²¹ in which Lord Hodson said:

“It should be prefaced that in the Scottish cases to which reference will be made the court is directing its mind to thissibility of evidence and in this connection to a discretion to be exercised whether or noor not to admit evidence in cases where it could be said to be unfair to the accused to do so.

In the English cases the evidence under consideration is admissible in law (whether illegally obtained or not) and the exercise of discretion is called for in order to decide whether, even though admissible, it should be excluded in fairness to the accused. The same end is reached in both jurisdictions though by a slightly different route.

There is a passage in the opinion of Lord Cooper (Lord Justice General) in Lawrie v. Muir, 1950 J.C. 19 which points to some of the difficulties of the question which is involved. He said at p. 26: ‘From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come in conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.’ At p. 27 he proceeded: ‘Irregularities require to be excused and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular the case may bring into place the discretionary principle of fairness to the accused which has been so fully developed in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with a crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick ... On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained.’ ”

At p. 364 His Lordship said:

“Their Lordships agree with the judgment of the Courts-Martial Appeal Court (Murphy (1965) N.I. 138) in holding that unfairness to the accused is not susceptible of close definition. See at p. 149: “it must be judged of in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but different offences may pose different problems for the police and justify different methods.”

Lord Hodson then, in concluding Their Lordships’ advice to Her Majesty, stated, in relation to the facts in that case, that “this is not, in their opinion, a case in which evidence has been obtained by conduct of which the Crown ought not to take advantage”.

In my opinion, as one who presiding over a court situated many thousands of miles away from where the Privy Council usually sits but who is applying substantially the same legal principles, I should not in this case allow the State to take advantage of the evidence obtained by conduct of the type as occurred here. The evidence of the Record of Interview will accordingly be excluded.

Solicitor for the State: Deputy State Solicitor

Counsel: Mr M. Maraleu

Solicitor for the Defence: Deputy Public Solicitor

Counsel: Mrs M. Ridsdale

N145.html#_ednref86" title="">[lxxxvi] ^{14 S.A.S.R. 463 at 468}

N145.html#_ednref87" title="">[lxxxvii]

N145.html#_ednref88" title="">[lxxxviii]^{[1970] HCA 21; 126 C.L.R. 321 at 334-335}

N145.html#_ednref89" title="">[lxxxix] ^{16 N.S.W.R. 149}

N145.html#_ednref90" title="">[xc] ^{16 N.S.W.R. 149 at 153}

N145.html#_ednref91" title="">[xci] ^{76 C.L.R. 501 at 511}

N145.html#_ednref92" title="">[xcii] ^{76 C.L.R. 501 at 513}

N145.html#_ednref93" title="">[xciii]^{[1950] HCA 25; 82 C.L.R. 133 at 150-1}

N145.html#_ednref94" title="">[xciv] ^{76 C.L.R. 501 at 506}

N145.html#_ednref95" title="">[xcv]^{[1950] HCA 25; 82 C.L.R. 133 at 153}

N145.html#_ednref96" title="">[xcvi]^{[1946] NSWStRp 54; (1947) 47 S.R. (N.S.W.) 284 at 313}

N145.html#_ednref97" title="">[xcvii]^{(1963) P.N.G.L.R. 55}

N145.html#_ednref98" title="">[xcviii]^{(1975) P.N.G.L.R. 14}

N145.html#_ednref99" title="">[xcix] ^{76 C.L.R. 501}

N145.html#_ednref100" title="">[c]^{[1950] HCA 25; 82 C.L.R. 133}

N145.html#_ednref101" title="">[ci]^{S.C. No. 122 dated 26/10/77}

N145.html#_ednref102" title="">[cii] ^{(1955) A.C. 197}

N145.html#_ednref103" title="">[ciii]^{48 Cr. App. R. 36 at 40}

N145.html#_ednref104" title="">[civ] ^{51 Cr. App. R. 1}

N145.html#_ednref105" title="">[cv] ^{52 Cr. App. R. 97 at 102}

N145.html#_ednref106" title="">[cvi] ^{52 Cr. App. R. 353 at 360-2}