State v Kuya [1983] PGNC 37; [1983] PNGLR 263; N431 (18 August 1983)

N431

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KUSAP KEI KUYA

Kieta
Pratt J

10-12 August 1983
15-18 August 1983

CRIMINAL LAW - Evidence - Admissibility - Confession - Voluntariness contested on voir dire - Practice and procedure on - Use to which evidence may be put on trial.

CRIMINAL LAW - Evidence - Identification parade - Accused has option to participate - Need to communicate refusal - Whether police required to advise of option - Constitution s. 32(2)(c).

Held

(1) On a voir dire to determine the voluntariness of confessional material sought to be used in criminal proceedings the prosecution bears the onus of proving "voluntariness" and to that end should produce full and proper evidence which will cover any ground of attack of which the prosecution has been apprised.

R. v. Aingo [1983] P.N.G.L.R. 271 n., referred to.

(2) All evidence taken on a voir dire becomes evidence on the trial for all purposes, except those portions which are deleted by agreement or as the result of a ruling on an objection to admissibility taken during the trial.

R. v. Amo and Amuna [1963] P.&N.G.L.R. 22 and

R. v. Minai [1963] P.&N.G.L.R. 195, considered.

(3) An accused person has an option to participate in an identification parade: where he is requested or required to participate in an identification parade and communicates, or could reasonably be expected to communicate a refusal to do so, his subsequent participation is open to challenge on any grounds available including breach of his constitutional rights under the Constitution, s. 32(2)(c).

(4) Semble, the police or investigating officers are not required to advise an accused that he has an option to participate in an identification parade.

Cases Cited

Hough v. Ah Sam (1912) 15 C.L.R. 452; 19 A.L.R. 1.
R. v. Amo and Amuna [1963] P.&N.G.L.R. 22.
R. v. Ato-Mumu (1967) (Unreported judgment No. 447).
R. v. Ginitu Ileandi [1967-68] P.&N.G.L.R. 496.
R. v. Minai [1963] P.&N.G.L.R. 195.
The State v. Wesley Molgime (Unreported judgment No. N328M of Quinlivan A.J dated 9 February 1981).

Ruling on Voir Dire

This was a ruling given on a voir dire as to the admissibility of confessional material during the course of a trial on a charge of an offence under the Criminal Code (Ch. No. 232).

Counsel

M. R. Fitzsimmons, for the State.
B. P. Dilon, for the accused.
Cur. adv. vult.

18 August 1983

PRATT J: The State has sought to put before me a confessional statement allegedly made by the accused to a police officer at Arawa Police Station on 12 July 1982. The form of the statement is not a written one although originally I understand it was taken down in hand-writing and signed by the accused but the original itself has been lost and it has been necessary therefore for the investigating officer, Senior Constable Lawrence Tiyonei, to give evidence from the witness box refreshing his memory from a photostat copy of the original. I might also add that that photostat itself was a photocopy of a document which itself was not signed. The accused however admits substantially to mouthing the contents of that statement. I have, in dealing with the evidence on this voir dire, certain difficulties because of the manner in which the evidence has been led and this has confirmed my view that one should depart from long standing current practice only in very special circumstances. The difficulties have been created for me by three failures. One on the part of the prosecution to insist that at the time of its opening it had before it details, at least in broad form, covering the objections to the confession. The standard practice of course, is that if the prosecution does not have notice of objection to the confession it will open in full on that confession during its address. It should also insist on some detail. The second failure was on the part of the defence not to give any notice of objection or any details thereof to the prosecution, though one cannot criticise if the defence wasn’t asked. The third failure was on my own part not to insist that these standard procedures be followed and that I be apprised at the start of the trial of the broad grounds of the objection. As a result, the court has been forced to grant leave to the prosecution to call evidence in rebuttal [See Addendum, infra 271.]. It is only stating the obvious that if the prosecution had received proper details of the nature of the objection at the beginning of the trial, it would have called all its evidence at the early part of the voir dire, and would not have been forced into calling the major part of its evidence in rebuttal after the defence itself had gone into the box.

I think perhaps the fact which highlights the absolute necessity for such proper procedure to be followed is that if the accused had chosen not to go into the box during the voir dire then a major part of its case would not have been presented. As a result of the procedure adopted by the prosecution the defence was forced into evidence, whereas theoretically it may have obtained all the evidence it required from cross-examination of the State witnesses. The police involved in the arrest and charging of the accused had not been called by the prosecution in the trial. They should have been for how else can one prove voluntariness. There were two main grounds for challenging the confession. Firstly, that the will of the accused was overborne as a result of the improper conduct of the police during the arrest, and secondly, that the will of the accused was overborne during questioning by a promise that he would be released from his handcuffs, etc. if he concocted and signed the statement. As I say I am in part myself responsible for the problems that have arisen on the procedure and I shall do my best to extricate myself from them as I go through the evidence. This however will not necessarily be a resume in the order in which it was given, for indeed a lot of material did not emerge as I said, until after the prosecution had finished its evidence on the voir dire.

The first part of the challenge to the confession emerges from the manner of the accused’s arrest and what happened to him after he got to the Arawa Police Station. I find as a fact culled from all of the evidence on the voir dire that the accused was arrested at Toniva Beach, or near the beach, on Sunday afternoon, 4 July 1982; that he was an escapee at that time; and that he was also wanted for questioning in connection with a number of offences including the one under consideration by me. I also find as a fact that after the police vehicle left Toniva it put on its siren, its flashing light, and that it advised all and sundry through the public address system that the "Arawa Phantom" had been captured. More particularly did this occur around the streets of Arawa and as the police vehicle came up to the Arawa Police Station and stopped there. Not unnaturally a large number of people gathered in a fairly short space of time. After all there had been an advertisement in the Arawa Bulletin of April 1982 offering the sum of K2,000 for information leading to the arrest and conviction of the "Phantom" and in that advertisement was a photograph of the man who is now charged before me with an offence under the Criminal Code.

(The court then proceeded to evaluate the evidence and continued.)

Of course the question of voluntariness really comes down to whether or not there is an overbearing of the will. This may be achieved even by promises. For example — I will give you K1000 if you are prepared to make a confession that you committed this offence and go to gaol. I can well imagine that in certain circumstances if a person thought all he was going to get was six months or twelve months in gaol he might well be prepared to confess to something he never did if he is going to get a thousand kina at the end of it. There is also of course the threat of violence which may overbear his will, that is obvious, and even more obvious where there is actual violence itself. Or of course there may be a combination of all or any of these matters. Now it will be quite clear from what I have said that I do not doubt that on 4 July the accused, who is, under the Constitution, innocent until proved guilty beyond reasonable doubt, was a man charged, tried and convicted by his captors and put on public display outside the police station where he was demeaned, humiliated, assaulted and treated as something less than human. What happened to him on that afternoon at the hands of the Arawa Police and through them some members of the public, was a complete violation of the Constitution and was one of the most disgraceful episodes ever to involve the constabulary. It is of little help to claim that there were only a small number of policemen concerned supervised only by a senior constable. The fact is, that because of a defective system it was allowed to happen, and allowed to happen in full view of the public. It should be the subject of a full enquiry under the Constitution similar to the separate enquiries undertaken by his Honour, Kidu CJ and Bredmeyer J in respect of misconduct at the Bomana Corrective Institution. I suggest to the Public Solicitor that he consider instituting proceedings in a form similar to those before their Honours. In any case I shall recommend to his Honour, the Chief Justice, that a judge be appointed to enquire into the arrest and questioning of this man because of the breaches which I find have been made of his Constitutional rights. It is obvious that I cannot be involved in such an enquiry, as it has been necessary for me to determine certain findings of fact about some of the personnel involved in the incident. Obviously one question which will have to be decided will be: should the enquiry take place before any further criminal proceedings if there are any, or should it wait until after such criminal proceedings have been completed. I find also that there was a certain degree of repetition of this disgraceful police conduct on the following day at Panguna. But I am not certain whether the accused was actually outside the station. The impression I get was, that he was made, either because he was handcuffed or by order, to stand in a position where he could be observed by the curious public.

I also find that there was a certain amount of persistence in the interviews by senior constable Tiyonei in that, although I am not sure whether such interviews occurred on 7 and 9 July, I am satisfied (at least on the balance of probabilities) that there were some attempts to get a confession before Monday, 12th. I am satisfied completely that on 12 July, there were some attempts before lunch which led to a successful end so far as the interviewing officer was concerned after lunch on that day. No matter how incongruous it might seem I must accept that a warning was given because that has not been challenged in the evidence, and that what is basically before me was stated by the accused during 12 July. Of course none of this is relevant if in the end result it does not have some effect on the admissibility of the confession.

Accepting that a warning was given, I remind myself of several matters pointed out in previously decided cases in this country, reference to which I find at 362 of Criminal Law and Practice of Papua New Guinea (1979), by Andrew, Chalmers and Weisbrot. The first is that of the case of R. v. Ato-Mumu (1967) (unreported judgment No. 447) where the learned authors quote from the actual case:

"The warning given must ‘really relieve the mind of the accused from the anxiety and doubts that might well have been in his mind. The Police should be very, very careful to make it clear to the accused that it really is a matter of indifference to them whether he speaks or not; it is up to him’ ".

Now in the circumstances of this case it is probably only necessary to cite that passage to make the end result of this judgment quite obvious. To think that senior constable Lawrence Tiyonei would have regarded the matter as something of indifference to him when there were a large number of crimes to be investigated by him and his compatriots would be utterly naive.

Furthermore, in relation to the case of R. v. Ginitu Ileandi [1967-68] P.N.G.L.R. 496 it is said at 503 of the text that a confession may be voluntary although the confessor has not been told either expressly or impliedly that he has a right to remain silent, be he so minded. The important part I think is this — "... it is compulsion or pressure that offends against the common law, not the absence of a caution".

In my view the treatment given to the accused on 4 particularly and also on 5 July (to a lesser extent) was not something that could be overcome by a simple warning. Indeed it is difficult to imagine what remedial course would be capable of overcoming that treatment to ensure the court that there was no overbearing of the accused’s will at a subsequent time. Whether the warning had been given a week or even a month later, the taint in my view still remains. The taint is this — the impression is given to the accused or to any other reasonable person I would think, that "the police can do what they like, that they are above and beyond the law, that indeed they are the law. Therefore I must do as they say". I have no doubt whatsoever in my mind that on 12 July this was the attitude of mind of the accused. For this reason alone I reject the statement on the basis that it is involuntary.

There is a second reason why I believe the statement is involuntary. During his evidence the accused said that constable Tiyonei told him: "If you want the handcuffs to be taken off your hands and go to the prison camp and get fresh air and after that to your court quickly, you will make your statement" or words to that effect. This was said in the context where Tiyonei had told him he was investigating a number of matters including the one before me and that he believed the accused was the perpetrator of them all. I also find that he was repeatedly put into handcuffs. I am not prepared to say that he was in handcuffs the whole time between 4 July and 12 July, but I certainly believe that he was in those handcuffs a considerable amount of the time and very definitely when he was being questioned by senior constable Tiyonei. If that was so, it is quite obvious there would be a considerable amount of inconvenience and physical discomfort. I must remember also that the cells at Arawa Police Station at this time were closed for health reasons due to blocked toilets and I do not find it difficult to imagine that there was, to say the least, an unpleasant odour around the cell area.

One other disturbing feature about this case is that despite the fact that he went to court on 6 July and that there was a court order sentencing him to four months imprisonment, in flagrant disregard of that order, he was retained in police custody and not handed over to the custody of the Corrective Institutions, until 3 December. What I am getting at here is that he was kept in cells at Panguna and Arawa, that the Arawa cells were unpleasant and unhealthy and that these facts would undoubtedly have had some effect on his attitude to his interrogator. What has he been promised, if anything, from his interrogator? He has been promised freedom from his handcuffs, and the opportunity to go to court. One might think what sort of a promise is that? However look at what happened to this man. For five months he was kept in the custody of the cells and not where he should have been under the law. For a week, he’d been in cell custody, and not taken before a court except for the escape from custody, he was told he would get into the fresh air of the Corrective Institution. I bear also in mind that he had been subject to this particularly demeaning treatment on the afternoon of 4 July. I think all of these matters made the statements by constable Tiyonei into promises which would certainly have affected the will of any man. In this instance I believe that they were responsible for the accused agreeing to suggestions put before him by the investigator and eventually after some half an hour of consideration signing the actual document. I think it is of some significance when the accused said in his evidence: "I thought about it all for about half an hour and then I decided to sign". One is not very puzzled as to the motive for signing. It was simply that whatever was down there on the paper didn’t make a great deal of difference as long as he got out of those handcuffs and away from the cell and persistent questioning.

I rule therefore that there was also sufficient inducement for him to make the statements he did, assisted by the material supplied to him by senior constable Tiyonei, and the inducement was to buy freedom from physical discomfort of the handcuffs, the unpleasantness of the cell, and a chance to get out of the hands of his tormentors by a court appearance and delivery to the Corrective Institutions branch. For these two reasons I rule that the statement made to the police on 12 July 1982, was involuntary and therefore inadmissible against the accused in this trial.

RULING UNDER S. 32(2)(C) THE CONSTITUTION

IDENTIFICATION PARADE

(18 AUGUST 1983)

The gist of the submission is this: The accused was not invited to take part in any identification parade. He was not given any option, and consequently, because of certain things which had happened before, the accused felt that he should co-operate with the police. It became clear at the end of all the submissions yesterday that there was certain material which I could not rely upon because it had emerged during the voir dire and was not yet evidence in the trial. Indeed the prosecution objected to the whole of the evidence in the voir dire going into the trial whereas the defence wished the opposite. My present problem is largely attributable to the fact that the defence evidence on the voir dire is an important part of the basis upon which the present submission was made [See Addendum at 270 for observations on proper practice and procedure]. I think however I can overcome the difficulty by approaching the submission from three different points of view. I might add before I go any further, that although I am interpreting and applying a section of the Constitution to the facts of a particular case which has arisen before me, in my view, I am permitted so to do by s. 57. That section covers the enforcement of guaranteed rights and freedoms and instructs and directs both the Supreme Court and the National Court either on its own initiative or on application to ensure that a person’s basic rights and freedoms are observed and enforced. I think it is clear, that is exactly what defence counsel is asking me to do in this case.

The three viewpoints from which one could approach the matter are as follows:

(1) Where an accused knows or believes that it is entirely up to him as to whether or not he shall refuse to participate in an identification parade, but says nothing and is not given any option by the police. In other words, he is quite willing to participate, but he does not convey this to the police nor do they give him the option.

(2) Where an accused feels obliged to participate in an identification parade, either because he has been told this must be so or he rightly or wrongly believes that he must participate, either from what the police have said or from their conduct, but would rather not do so. To this however there is an important rider, he does not convey his state of mind, his doubts or his wishes, to the police. They have not given him the option, but merely directed that he participate in an identification parade.

(3) Where an accused overtly refuses to participate in an identification parade, either by words or conduct, but such participation is physically forced upon him or he is threatened with the application of physical force to make him participate.

It seems to me that the question of communication is important. In the first two sets of circumstances, the prisoner has not communicated his wish to the police. In the third set of circumstances he has, and such refusal has been rejected by the police thus leading to a forced participation. Section 32 of the Constitution, deals first of all with general freedom so that one’s activities are restricted as little as possible commensurate with the maintenance of law and order, and commensurate with the National Goals and Directive Principles. Section 32(2) then goes on to say that the legal right to such freedom is one based on law, and thus no one is obliged or required to do anything which is not laid down by the law. Of course he may be obliged by his moral principles or sense of filial duty for example, but s. 32(2) must mean in the ultimate that he cannot be forced to do something, or he cannot be penalized by the State for failing to do something, unless there is a law establishing the necessity to observe the obligation. Perhaps one of the best known examples in law is that if a stranger wishes to commit suicide by drowning himself and he is standing next to you and jumps into the sea, there is no legal obligation on you to save him. It’s his life, if he wants to throw it away. He has acted against the criminal law, and of course within certain religious persuasions he has acted against religious law, but there is nothing which says that you are legally obliged to do anything about it. Consequently, you could not in those circumstances be charged with any offence, least of all with either aiding or abetting the suicide.

Before a person can claim a breach of this section however, it seems to me that he must communicate to the other party his attitude to the proposed force, for without such communication, the other party would not be aware of the existence or otherwise of a feeling of obligation. If I say I do not want to participate in an identification parade and the request is persisted, I can rely on the provisions of s. 32(2)(c) and say that there is no legal requirement for me to do so, I am not obliged to do it. And that is an end of the matter. If you make me stand in the parade you are doing something which the Constitution says is an interference with my right or freedom. True it is, I am under arrest, and I must comply with such reasonable orders and directions as are necessary for that purpose. But becoming part of an identification parade is not necessary for that purpose. It is not therefore a lawful direction and any force used in respect of the direction is likewise unlawful. In my view however, if a person is going to rely on the legal point that he is not obliged to do a particular thing, though someone else wants him to do it, it could not be said that the breach occurred if only one party is aware of the true state of affairs. The section requires, (1) a statement by a party of the requirement, and (2) a response by word or act on the part of the person requested. Where such word or act indicates an acceptance of the requirement, or even, I think, where the word or act is ambiguous and may be regarded as an acceptance then, I do not think the person can be heard to say subsequently that there has been a breach of s. 32(2)(c). It is only where there has been a communicated refusal or where such refusal would be expected by a reasonable person can there be said to occur a breach of this freedom. If I might just give an example of reasonable expectation: a person has been cowed into submission and as a result of the treatment is in such a psychological or physical state that he is not in proper control of himself. He is ordered to participate in an identification parade and assisted to take his place, although any reasonable and honest person, would have to say as a result of the previous treatment given to the prisoner, or his apparent condition, that any consent to participate was no real consent.

I would find that in circumstances 1 and 2, an accused could not rely on his rights under s. 32(2)(c) to challenge his participation and the results of any identification parade, whereas he could do so under circumstance 3; and that of course is in addition to any other grounds of challenge he may have elsewhere in the law, whether by statute or by common law. In my view a court would be entitled, in the exercise of its discretion, to reject any evidence of identification arising from a parade when the circumstances fell within this third category.

On my interpretation of the Constitution, s. 32(2), and in the absence of any authorities being cited in connection with this section or the principles existing at common law, I am not prepared to rule that the police must advise an accused that he has an option to participate in an identification parade and that in the absence of such advice a court may, in its discretion, refuse admission of evidence concerning the identification.

(Subsequently defence withdrew the objection to evidence on the identification parade. Following a further ruling on "similar facts" the accused was acquitted.)

(Port Moresby) Addendum (See infra 264)

VOIR DIRE

If counsel were influenced in any way by the course suggested by Quinlivan, A.J in The State v. Wesley Molgime, N328(M) (Unreported judgment dated 9 February 1981, of Quinlivan A.J), they did not mention it; but what has happened in this trial bears some similarity. I can only say with the greatest respect to his Honour, I have never had personal experience of the method he suggests, and I must beg to differ. It is an invitation to the type of confusion and lack of proper presentation which has occurred here. Indeed I do not think the suggestion by his Honour was followed, even back in 1961 in the case of R. v. Aingo which is noted in full at the conclusion of this addendum because it appears to have been overlooked in the bound volumes of early judgments contained in the library.

When a confession is challenged on the basis of voluntariness, the onus is of course on the State. It is true that the prosecution does not have to prove the negative. As Barton J said in Hough v. Ah Sam (1912) 15 C.L.R. 452 at 457:

"The Crown has not to prove a negative, that is, to prove that the statement of the accused person is not induced by threat or promise. If the circumstances surrounding a confession or statement give no room for any suggestion that it has been obtained by any threat or inducement, then the presumption is that it is free and voluntary. If a doubt is raised, then it is incumbent on the prosecution to remove that doubt."

However, the position is hardly as described by Barton J where the Crown has been apprised of the fact that the confession will be contested and the grounds thereof. In addition, the cross-examination of the police witnesses properly called on the trial or at the start of the voir dire, will indicate further the line of attack to be made by the defence.

Evidence of voir dire on trial (See infra 268 et seq)

For reasons which it is unnecessary to dwell upon, my ruling at Kieta covering admissibility of evidence taken on the voir dire as evidence on the trial was incorrect. Since completing the case I have been able to clarify my own recollection as to the course followed by all trial judges before whom I appeared for a number of years. As I do not wish it to be thought that on future occasions I shall follow my Kieta ruling and thus depart from what had become a standard practice, I set out the following observations.

The degree to which evidence on the voir dire will be received on the trial was examined fairly closely by Sir Alan Mann then Chief Justice, in R. v. Amo and Amuna [1963] P.&N.G.L.R. 22 with some further observations on procedure made by Smithers J during his judgment in R. v. Minai [1963] P.&N.G.L.R. 195 at 201. The practice is that all evidence taken on the voir dire becomes evidence on the trial but excepting thereout such portions as may be validly objected to by counsel. Normally, this would be counsel for the defence who, as a part of the challenge to the voluntariness of the confession, has had to place the accused in the witness box and certain admissions had necessarily emerged during the voir dire. I cannot conceive of any occasion upon which the prosecution would have a legitimate objection to any evidence called by it on the voir dire not being admitted into the trial. I have certainly not come across any in my own experience. Had I adhered to the above ruling following the conclusion of the voir dire in the present trial, the problems which arose initially in relation to the objection on identification evidence would not have occurred. Once again a departure from standard practice has created unnecessary difficulties.

Lawyer for the State: L Gavara-Nanu, Public Prosecutor.

Lawyer for the accused: N. Kirrowom, Public Solicitor.

[Editorial note: The following report [sic] of R. v. Aingo is referred to at 270.]
Papua New Guinea

[Supreme Court of Justice]

The Queen v. Aingo, son of Aida; Isoa, son of Evoro and Simanu, son of Uviga
Port Moresby
Mann CJ
22-24 February 1961

Criminal Law - "Confessions" - "Judges Rules" - "Person in Custody" - Natives.

These three Goilalas were on trial for the murder simpliciter of a Buang. The case is reported only on the point of admissibility of what each said at a police interview at which statements (although hardly incriminatory in themselves) were allegedly made which conflicted with the defence of an alibi set up on the trial. This point was argued on the voir dire at which the accused were not called and the only evidence was that:

(i) two of accused were taken to the police station during a "not", the third went there for his own purposes;

(ii) the police inspector was not at the police station at the time of arrival of the two accused, being busy at the "not" but returned later and interviewed them then;

(a) there was no evidence how long they had been there before the interview,

(iii) until the arrival of the inspector the three accused were in a place where police constables and N.C.O.s went, passed and repassed.

(a) there was no evidence of whether any of these constables or N.C.O.s communicated with the accused, either orally or by signs or menaces;

(iv) the interview took place as soon as the inspector returned and was conducted by him without use of any interpreter because he is an experienced Pidgin speaker and, although each of the accused, not being New Guinea men, did not speak true Pidgin but used a mixture of Pidgin and broken English, he understood them perfectly;

(v) the inspector asked each accused certain questions and received answers before, he swore, he felt justified in making up his mind to charge them. He then cautioned each before he continued the interviews, at the end of each of which he arrested each and asked each if he had anything to say in answer to the charge, administering the usual caution;

(vi) the inspector did not regard the accused as being "in custody" at any time before he cautioned them;

(vii) in answer to the hypothetical question of what he would do if the accused "bolted" from the police station before the caution the inspector said that at any time they could have walked out but they did not; however, if they had he would have followed them, continuing his questioning as they walked away.

Held:

(i) The accused were "in custody". They would so regard themselves (par. 1).

(ii) It is a practical necessity to explain to natives who have not been arrested or formally charged that they are not under arrest and are free to go if they wish and are not bound to answer questions (par. 2).

(iii) The prosecution must prove the absence of threats or inducements before a confession is admissible (par. 3).

(iv) That part of the interviews which followed the first "cautions" is admissible (pars 4 and 5).

Cases referred to:

(i) R. v. Swatkins and Ors [1831] EngR 499; (1831) 4 Car. & P. 548; 172 E.R. 819.

(ii) Bulari, son of Gaio v. The Queen [1960] HCA 70; (1960) 104 C.L.R. 419; 34 A.L.JR. 266. (sub. nom. Gaio v. The Queen.)

(iii) Smith v.

R. [1957] HCA 3; (1957) 97 C.L.R. 100; 31 A.L.J 76.

R. S. O’Regan, for the defence, on the voir dire argued -that:

(i) the "confessions" were inadmissible because it had not been proved affirmatively that they were voluntary. All possible witnesses had not been called. Any of the police constables and N.C.Os. passing through where the accused were waiting could have made threats or promises to them to induce a confession and all should therefore be examined. He cited R. v. Swatkins and Others [1831] EngR 499; (1831) 4 Car. & P. 548; 172 E.R. 819.

(ii) that, assuming an interpreter was used, he had not been called and so the evidence was inadmissible as hearsay. He cited Bulari (sub-nom. Gaio) v. The Queen [1960] HCA 70; (1960) 104 C.L.R. 419.

(iii) that, if an interpreter was not used there is no evidence the inspector is correctly interpreting the conversation, nor that he is competent to do so.

(iv) the accused were in custody because it is well-known that people being questioned at a police-station regard themselves as being in custody — particularly natives. He cited Smith v. The Queen [1957] HCA 3; (1957) 97 C.L.R. 100.

(v) assuming the confessions are admissible, the judicial discretion should be exercised to exclude them.

D. J Kelliher, Crown Prosecutor, with him J S. Bowen, submitted, in regard to each of the above points that:

(i) Swatkins case is distinguishable because:

(a) the facts specifically were that "A prisoner was in the custody of A., a constable" and another constable then took over and examined him. It is submitted these prisoners were not in custody;

(b) the case was tried in 1831, and conditions were quite different — it was before the creation of the present kind of police force in England;

(ii) the only evidence is that of the inspector. He swears that no interpreter was used and his oath is not contested;

(iii) the inspector is on oath to tell the truth. He says he is an experienced Pidgin speaker and that he understood what the accused said and he has related what it was each said. To go further and say his mental processes were correct is unnecessary.

(iv) the accused were not in custody until arrested at the end of the interview. The third accused came to the police station for his own purposes and, although they did not do so, the evidence is, all could have left had they wished. Smith is distinguishable because Smith was told by the police that he could not leave and was held for over six hours while he was continuously questioned.

(v) the judicial discretion should only be exercised judicially and there is no reason why the "confessions" should be excluded.

R. S. O’Regan, for the defence, in reply on the voir dire did not develop the argument in any material way.

Cur. adv. vult.
After the luncheon adjournment on 23 February 1961.

MANN CJ

I think that for the purpose of this case I should treat the accused as being in custody at the police station. I think it clear that they would so regard themselves.

It is a common practice for police officers to give a warning at the outset of any conversation under such circumstances and I think that such a practice is wise. When police officers desire to question suspected natives who have not been formally charged or arrested I think it becomes a practical necessity to explain to the natives that they are not under arrest and free to go if they wish and are not bound to answer any questions. If this step is not taken, it becomes a matter of difficulty for the Crown to show that a primitive accused was not in custody or that his statement was voluntary.

From the evidence I am unable to say how long the accused were kept waiting for Inspector Allen. In such cases I think the Crown should be in a position to show that the suspected persons were not in fact approached and given any threat or inducement. Difficulty of proof does not alter the onus. The remedy is: not to keep suspects waiting in the muster-room, where the idea of being in custody and the risk of intimidation are likely to be greater.

As a question of fact I do not think the Crown has shown that the statements were voluntary and I reject them up to the stage where warnings were given.

Inspector Allen gave a proper warning and I admit the evidence after that point.

I think that his oath as a witness is enough to verify that his English version of a conversation in Pidgin and broken English is a true translation so far as his present evidence includes the step of translation. I do not think there is any cross-examination of the accused after the warnings were given and there is no objection on that ground.

There is no suggestion of any impropriety on the part of Inspector Allen or any of the police. The problem is purely one of admissibility of evidence and onus of proof under circumstances rendered difficult by the state of mind of primitive people in circumstances unfamiliar to them and in which it cannot be validly assumed that they are aware of their rights.

R. S. O’Regan, instructed by the Public Solicitor.
Reported by P. J Quinlivan

Barrister at Law.

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