State v Peter [1983] PGNC 16; N438(M) (12 December 1983)

N438(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KARARA PETER

Waigani: Kidu CJ
12 December 1983

RULING ON ADMISSIBILITY OF RECORD OF INTERVIEW

KIDU CJ: On Thursday 9th June, 1983, between 3 p.m. - 4 p.m., two men committed armed robbery at the Leo Sam Trade Store at Koke. They entered the store and while one fought with an employee of the store (Eric Apus) the other, armed with a small axe, went to the counter where the cash register was, cut the cord which attached the cash register to the counter and took it. The two men ran out with the cash register which had money in it. Witnesses could not say how much money was in the cash register. Cesar Tineda, Manager of the store, says it was less than K1,000. Neither Tineda nor Janet Wai could identify the two robbers.

The accused was arrested at 1.30pm in front of the old Papuan Theatre (now a Disco venue and Milk Bar) directly opposite the Port Moresby Police Station. He was pulled out of a P.M.V. in which he was travelling and taken across, by a van, to the Police Station. The time of arrest was about 1.30pm. (Arresting Officer did not give evidence). The accused had been to the Papua Hotel with his father. They drank 6 bottles of beer between them and he said he left his father in front of the Papua Hotel and he went to the Steamships bus stop to catch a P.M.V. This he did and when the P.M.V. stopped near the old Papuan Theatre, three policemen (Not policemen who gave evidence) pulled him out.

At the Port Moresby Police Station he was asked about the Leo Sam robbery (not cautioned or s.42 rights administered). These same police told him there was a small boy in the Station who was going to identify him. Police then got this small boy (boy came with a female C.I.B. Officer). A policeman said to the small boy "Do you see that boy?" and the small boy said ‘Yes’ and was taken away again. Then he was told "You must tell the truth". He said he did not know the small boy. Then a policeman said "If you say no, you are going to receive what you are going to get". (Vague as to what happened next). He was taken to the complainant’s room and told that police who arrested him were going off-duty and he had to wait for the next shift to arrive for duty. He was told to sit under the table.

About 7.30pm a female officer took him to the cell and locked him up but 5 minutes later she went and got him out and was told to sit under the table. She told the corporal to look after him as she was taking the small boy to Boroko Police Station. He went to sleep under the table and later police woke him up and was taken into CIB Office by Duma, Igarobai and they started questioning him and recorded the interview. This was about 9.30pm. When the record of interview finished, they asked him if he was hungry and he said he was and they bought him a packet of biscuit (3 hard biscuits) and a tin meat. He ate ½ of the tin meat and two biscuits. They then took him to Boroko cells. On the way, he told them he wanted to tell his parents so they drove to Kaugere and stopped near his house. He wanted to go out and tell his parents but police told him they’d come in the morning and tell his parents.

Peter Kiki, father of the accused, said he drank beer with his son at the Papua Hotel and about 12.30pm be left him to finish the last bottle and he went to Kaugere. In the afternoon a Goilala boy told him that police had arrested his son. He did not go to the Police Station until next morning (Saturday 11/8/83). He first went to Boroko but was told that his son was at the Port Moresby Police Station. He arrived there about 11.00am. His son was hungry so he went and bought him fish and coke (later says fish, chips and coke). He said three police (all men - one wearing long trousers and two short trousers) were at the Police Station with his son.

On Friday night after he went to bed no one came to his house. No car stopped near his house. He would have heard if it did.

Discrepancies between accused and his father:

(1) Police who interviewed the son on Saturday - son says two men and one woman and father says 3 men.

(2) Father left son in Papua Hotel to finish his last beer and son said he left his father outside the Papua Hotel.

(3) Food - son says one fish and two sausage rolls and father says fish and coke.

These are matters on which there really should be no conflicts. These are pose doubts about the reliability of their evidence. It will be obvious from hereon that where there is conflict between police and the accused and his father, I have accepted the police evidence.

Duma and Igarobai went to the town Police Station about 5pm (or 5.30pm). They were told by police going off duty there was a suspect in the duty room for questioning in relation to the Leo Sam robbery. There is no question that the accused was arrested for questioning. He was not free to leave according to Constable Duma.

They tried to wake him up but he was too drunk to wake up and so they let him sleep. Then at 9.00pm they woke him up and he awoke. He had sobered up by then, but was tired. They chatted for a while about the robbery. No caution was given. It seems the accused made admissions then. Then about 9.15pm or 9.20pm his father arrived and he was allowed to talk to him. He was hungry so his father went across to the Milk Bar and bought him fish, chips and drink. He ate these and about 10.00pm the record of interview commenced. The father was told to wait in the duty room during the interview. After the record of interview, his father went in the interviewing room (CIB room) and talked to them. He asked about bail and then left. The accused was charged and then taken to Boroko Police Station.

The law on admissibility of confessions is settled and I do not intend to re-iterate it. The authorities referred to during submissions (McDermott Wendo etc.) are well known to both the court and counsel.

The two questions are:

(1) Is the record of interview admissible as a voluntary statement made by the accused?

(2) If the record of interview is legally admissible should it be rejected as a matter of discretion?

QUESTION 1

There is no doubt in my mind that when the accused was interviewed he was made to feel free to either answer questions or remain silent. He was properly cautioned and he was informed of his rights under s.42 of the Constitution. He answered questions in English very clearly - not as if he were drunk. He signed each page of the record of interview after he had read them and said they were correct. He re-iterated this on oath before me He never at any stage of the interview said he did not want to answer questions.

If there had been any impropriety before the interview - e.g. promise or threats - these were nullified by the proper cautions administered by Const. Duma. Neither Duma nor Igarobai threatened or induced the accused to co-operate during the interview. The accused himself has made no such allegations against them. I am satisfied the record of interview is admissible as a voluntary statement made by the accused.

QUESTION 2

There is no doubt that the accused was arrested for interrogation. As Duma said in his evidence he would not have been allowed to leave the Police Station if he wanted to. So here we have a young man arrested at 1.30pm and kept in custody until midnight and was charged only after he had confessed under arrest.

When he was first taken to the Police Station, although he was under arrest, he was not cautioned or informed of his s.42 rights. He was interviewed and even told to confess after a little boy had come in and pointed at him (without saying anything).

Later on at 9pm he was woken up from his sleep and interviewed without being cautioned or afforded his s.42 rights. It was after he had made admissions that he was formally cautioned, informed of his rights under s.42 and then his interview recorded.

The whole process makes a mockery of s.42 of the Constitution and the Judges’ Rules meaningless and if I allow the record of interview into evidence I would be condoning the flouting of these well established Rules and the guarantee of rights by the Constitution of Papua New Guinea.

I exercise my discretion and reject the record of interview.

Lawyer for the State: Public Prosecutor, Mr L. Gavara-Nanu
Counsel: Mr I Brown
Lawyer for the Accused: Public Solicitor, Mr N Kirriwom
Counsel: Mr McMillan