State v Rambio [1983] PGNC 8; N410 (1 June 1983)

Unreported National Court Decisions

N410

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
STATE
V
CANUTE RAMBIO

Waigani

Kapi DCJ
1 June 1983

CRIMINAL LAW - Evidence - Admissibility of conversation with a witness who is not a person in authority.

Who is a person in authority within the meaning of s. 28 of Evidence Act (Chapter 48).

Cases Referred To

Regina v. Ginitu Ileandi (1967-68) P & N.G.L.R. 496 and Others

The State v. August Toiamia - (Unreported) judgment No. N145 dated 25th May 1978

Constitutional Reference No 1 - (1977) P.N.G.L.R. 362 of 1977

Deokinanan v. Reginam - (1968) 2 All E.R. 346

R. v. Todd - (1910) 13 Man. L.R. 364

McDermott v. The King - 76 C.L.R. 501

The King v. Lee - [1950] HCA 25; 82 C.L.R 133

R. v. Jeffries - [1946] NSWStRp 54; (1947) 47 S.R. (N.S.W.) 284

Keefe v. The Crown - (1919) 21 W.A.R 88

Commissioners of Customs and - Excise v. Harz and Another - (1967) 1 All E.R 177

Legislation Referred To

Evidence Act (Chapter 48)

INTERLOCUTORY JUDGMENT

KAPI DCJ: The ed is charged with indh inducing another person, by false pretence, to deliver money to a third person under s.404(1) (b) of the Code.

The State called its first witness, Mr Boe Ume, who was the finance officer in Arawa at the time of the alleged offence. According to the State case, he was the person who was allegedly induced by the accused, by the false pretence. It is alleged that the accused paid into the Native Monies Trust Account in the Finance Department at Arawa, a personal cheque amounting to K2,300-00 to be paid to a person at Wabag. The accused person was said to have told the witness (i.e. this witness) that he had sufficient funds in his bank account and that the cheque would be met upon presentation. Upon this representation, the witness accepted the cheque.

During his examination-in-chief, Mr Ume stated that the accused's cheque bounced at his bank and was returned to him as a dishonoured cheque. As a result of this, the witness sent a notice of dishonoured cheque to the accused and had several telephone conversations with him regarding this. During these conversations, the accused was said to have admitted certain facts. When the State Prosecutor attempted to lead evidence on the content of these conversations, defence counsel objected.

There are two grounds upon which a confession may not be admitted as evidence. First, an objection may be taken under s. 28 of the Evidence Act (Chapter 48) or secondly, upon the discretion on the part of the Court to reject such a confession if it is unfair to admit it. There are plenty of authorities on how these principles have been applied. See Regina v. Ginitu Ileandi and Others, (1967-68) P & N.G.L.R. 496; The State v. August Toiamia (Unreported) judgment No. N145 dated 25th May 1978; and Constitutional Reference No 1 of 1977 (1977) P.N.G.L.R. 362.

However, the issue which arises for consideration in this case is whether these principles apply to the facts of this case. The above principles which I have just referred to apply in situations where a confession or statement is obtained by a person in authority, such as a policeman, see Deokinanan v. Reginam (1968) 2 All E.R. 346. Who is a person in authority? At p. 350 Viscount Dilhorne referred to the case of R. v. Todd (1910) 13 Man. L.R. 364 and quoted the following passage from the judgment of Mr Justice Bain:

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceeding or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe.”

I take it to be the law in this jurisdiction that where objection is made either under s. 28 of the Evidence Act or under the discretion of the Court, the principles developed can only be applicable where the confession is made to, or is obtained by, a person in authority. When the authorities relating to the exercise of discretion are examined, the question of impropriety or unfairness relate to persons in authority, such as police. See McDermott v. The King 76 C.L.R. 501; The King v. Lee [1950] HCA 25; 82 C.L.R. 133; R. v. Jeffries [1946] NSWStRp 54; (1947) 47 S.R. (N.S.W.) 284; The State v. August Toiamia (supra) (unreported) judgment No. N145 dated 25th May 1978 and R. v. Ginitu Ileandi and Others (supra) (1967 - 68) P & N.G.L.R. 496. I am not aware of any authority which supports the proposition that the above principles may be extended to confessions made to a person not in authority. On the contrary, there are cases which confine the application of these principles to persons in authority and I refer to Deokinanan v. Reginam (supra) (1968) 2 All E.R. 346; Keefe v. The Crown (1919) 21 W.A.R. 88.

In the instant case, the witness is not a person in authority within the meaning of s. 28 of the Evidence Act. When the witness had telephone conversations with the accused, he was simply following up the payment of money to the Finance Department. At the time of these conversations, there was no charge, or proposal to charge, the accused with any offence. The witness had no power to say whether there should or should not be a prosecution. The fact that a person may be a witness does not, of itself, make him a person in authority. See Commissioners of Customs and Excise v. Harz and Another (1967) 1 All E.R. 177. I conclude in this case that this witness Mr Ume, is not a person in authority, and therefore the principles relating to the objections on the discretion of the court are not applicable. I will therefore allow the questions to be put to the witness as to the contents of the conversation between the witness and the accused.

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

Counsel: E. Kariko

Lawyer for the Accused: B.M. Narokobi

Counsel: B.M. Narokobi