State v Turik [1986] PGNC 56; [1986] PNGLR 138; N548 (1 June 1986)

N548

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ANTON AMES TURIK
AND WICKIE JACK PELTAM

Madang
Pratt J
June 1986

EVIDENCE - Confessions and admissions - Discretion to exclude - Unfairness to accused - Record of interview - Taken in custody - Taken eighteen hours after voluntary confession - Breach of Judges’ Rules 1912, r 3 - Rejected in exercise of discretion.

CRIMINAL LAW - Evidence - Confessions and admissions - Discretion to exclude - Unfairness to accused - Record of interview - Taken in custody - Taken eighteen hours after voluntary confession - Breach of Judges’ Rules 1912, r 3 - Rejected in exercise of discretion.

On the evening of 22 September an accused was taken into custody at Bogia in connection with the robbery of a liquor store; he was detained in the police cells until 24 September when he was moved to Madang. On 24 September the accused made a lengthy confessional statement which the trial judge found to be made voluntarily. On 25 September the accused was questioned at length and a detailed record of interview made.

On objection to the admissibility of the record of interview,

Held

(1) In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness regard may be had to the Judges’ Rules 1912, as part of the underlying law of Papua New Guinea.
The State v Win Kwainfelin [1986] PNGLR 106, followed.

(2) Rule 3 of the Judges’ Rules 1912, which states that "persons in custody should not be questioned without the usual caution being first administered" is not to be interpreted as encouraging or authorising the questioning or cross-examination of a person who has been taken into custody and charged.

(3) In the circumstances, the detailed questioning of the accused some eighteen hours after he had made a full confessional statement was contrary to the Judges’ Rules, r 3.

(4) The court should exercise its discretion to reject the record of interview.

Cases Cited

R v Haua-Kekedo (Unreported, Supreme Court (1958) judgment N119).
State, The v Win Kwainfelin [1986] PNGLR 106.

Voir dire
During the course of a trial on charges of armed robbery objection was taken to the tender of confessional material and a record of interview conducted and recorded some eighteen hours after the confessional material had been obtained.

Counsel

R Auka, for the State.
M Miva, for the first accused.
R J Everingham, for the second accused.

June 1986

PRATT J: In this trial the two counsel for the accused have objected to the admission of confessional material on the basis of lack of voluntariness and have requested that the judicial discretion be exercised in favour of each accused. I deal first of all with the matter of Anton Ames. Anton was detained late on the night of 22 September 1985, a short while after a robbery had been committed, at the house of the council clerk near Bogia, a vehicle taken and subsequently a liquor store belonging to Bogia Hotel Pty Ltd had been broken into and liquor had been removed. The State alleges that both Anton and Wickie were responsible for the robbery and that a shotgun was used to cause the council clerk Mr George Undae to hand over the keys to the council vehicle. It was also alleged that some money was taken as well during the robbery.

Anton was detained by Sgt Major Purai of Bogia Police Station after the Sergeant had ascertained from a relative of the two men that his shotgun had gone missing that night. Anton was kept in the cells all day on the following day, that is 23 September and he together with Wickie and a number of others, were placed in a line-up on 24 September. This was about 8 o’clock in the morning. There is no dispute that such line-up did occur. According to Sgt Major Purai, it seems that the line-up was for the purpose of the various suspects indicating to the police what items had been stolen by them. Apparently this occurred just before the suspects were put into the transport. There was some attempt at property identification. I do not believe that this line-up was any attempt at a public display arranged by the police in order to humiliate the accused as counsel have claimed. It was simply part of the investigation concerning the property and no doubt, a preliminary to the travel arrangements which had to be organised that morning for everyone to get back to Madang. Apparently the cells at Bogia are quite small and if these men had been brought in round about 8 o’clock and the cavalcade was to depart as soon as possible back for Madang, there would be absolutely no point in putting the men into the cells. The seven who were brought in to Bogia from the raid that morning were simply joined by Anton and Wickie outside the District Office prior to arranging for particular vehicles to take different personnel.

Now a number of police had been called in evidence by the State and they have strongly denied any impropriety or assault on the suspects during this line-up period. The accused, Anton, himself has gone into the box on the voir dire, and in addition has called several witnesses, all of whom are alleged accomplices in the various crimes committed that night, and he has sworn to the fact that he was assaulted by at least one not squad member on the head with a fist and that he and others had their legs assaulted by another member of the not squad using apparently the handle of an umbrella that must have seen better days. There is also no dispute that a number of not squad personnel did accompany the CID from Madang to Bogia in the early hours of the morning of 24 September and no doubt one of the purposes of that was to effect a raid, which was indeed performed, in order to round up different suspects.

The position concerning these alleged assaults has left me in some doubt. I do not say that the accused were assaulted but I cannot be satisfied beyond reasonable doubt that they were not. In short then the State has been unable to overcome the onus which lies upon it insofar as this aspect of voluntariness is concerned. That however is not an end of the matter. The test here of course is whether or not the will of the accused has been overborne and of course if there is evidence of an assault, that is a strong factor in favour of coming to a conclusion that the will was overborne. I might add here that no mistreatment was alleged to have taken place during the previous day, 23 September whilst Anton remained in custody together with Wickie at the Bogia Police Station. However Anton was not charged so far as I am aware with any offence on the 23rd and of course a failure to charge someone may well lead to an exercise of the discretion against the police and prosecution in certain circumstances. There is no doubt that Anton had been in possession of a shotgun if one accepts the confessional statement made by him to Sgt Major Purai and that of course would have entitled Purai to lay charges under the appropriate Firearms Act for unlawful possession. I will come back to this in a moment.

The final test however, as I said, is whether or not the mind of the accused was overborne at the time he made his confession by what occurred earlier on that day. Now there were not squad police about at the police station here in Madang. I note that the trip from Bogia to Madang is of some three hours duration and that both members of the CID and not squad accompanied the various suspects, I think nine in all, as they were brought back from Bogia to Madang Police Station. There is no suggestion however that any of the CID members assaulted or in any way could be said to have attempted to overbear the will of Anton. Indeed the interviewing officer, Stephen Jack was not even at Bogia. Whilst it is true that not squad members were moving in and out of the Madang Police Station there is nothing to suggest that they had anything to do with the subsequent investigation, (indeed I would think that they would have nothing to do with it). Not only was Anton given his clear Constitutional rights but a warning in the traditional term was given and I have no doubt, was fully understood by the accused man. I do not believe that any mistreatment which may have occurred earlier in the day was a relevant factor in the mind of the accused when he was interviewed by Constable Stephen Jack at about 1.30 pm that day. The confessional statement itself is quite a free flowing one and rational. There is no reluctance exhibited in the statement to speak out fully about the matter and it bears all the earmarks of a completely voluntary statement.

One complicating feature about this statement arises from the claim by the accused that it was originally handwritten and not signed by him and that typewritten statement I have before me was not signed by him until some weeks later on. He does not know the content, nor does he know what is contained in this typewritten statement being tendered before me as the one taken on 24 September, because he simply put his name on it, as he was told to do, without reading it. I have no reason to believe this story. The officer says quite definitely that he typed it there and then on the spot and I could not see why he should go to the more laborious business of writing it in longhand when there is a typewriter available and he has some skills on that machine.

The upshot of this is that in my view the first point must be decided against the accused. I am satisfied beyond reasonable doubt that the statement was taken voluntarily and secondly I find nothing positive in the conduct of the police that should cause me to exercise my discretion against the admission of the confessional statement. I therefore receive it into evidence. I will not however admit the record of interview. The essential point concerning that document is that Anton should have been charged on the afternoon of 24 September and charged with the serious offences which he originally admitted to Sgt Major Purai. I will come to that short admission in a moment.

The confessional statement which I have just admitted is quite a lengthy one, contains a considerable amount of detail and no attempt was made on the afternoon of the 24th to clear up any ambiguities, if there were any, contained in the statement.

The 1912 Judges’ Rules which I have said only as recently as last month in Wewak, see The State v Win Kwainfelin [1986] PNGLR 106, are the Rules which seem to me to be still applicable as part of our underlying law. It may well be that since Independence, the 1964 Judges’ Rules are now the more appropriate, but I will decide that matter after it is fully argued before me in some subsequent trial. So far as rule 3 is concerned there is not a great deal of difference. The 1912 Rule is:

"Persons in custody should not be questioned without the usual caution being first administered."

The important part of this rule of course is the explanation contained in the 1930 circular which makes it quite clear that the rule was not to be interpreted as one which should encourage questioning after a person has been taken into custody and charged. It may or may not be that this record of interview taken on the following day, 25 September, was voluntary. I don’t think it is necessary for me to decide that issue. The point is that, in my view, it is not proper to examine and cross-examine an accused man some eighteen hours or so after he has made a full confessional statement. There must be an end to the matter somewhere or other. Where the cut-off point comes, is not easy to say. Each case must be looked at in the light of its own circumstances. Certainly when a second attempt to obtain information is made by the police, that may certainly give a greater feeling in the mind of the accused that he has to do what the police say. It is this very reaction which forms the raison d’être for the Judges’ Rules being brought down early this century. As Sir Alan Mann, I believe, said in the case of R v Haua-Kekedo (Unreported, Supreme Court (1958) judgment N119) (referred to Criminal Law and Practice of Papua New Guinea Chalmers, Weisbrot and Andrew (1985) 2nd ed, at 227):

"once an accused is in custody and charged a ‘closed season’ should be observed as to questioning unless it were to clear up some obvious ambiguity in the statement."

I do not think the system which seems to have been developing of late of taking a detailed confessional statement followed up with a record of interview is one which should be encouraged by the courts. Either the police must be satisfied if they get a long confessional statement and leave it at that or they must avoid anything except perhaps the barest admission if they wish to pursue the matter by way of record of interview. Certainly they will be in great danger of having the record of interview struck down if it takes place on the day following the taking of a detailed confessional statement. Indeed I think there could be very strong arguments for saying that a record of interview would be struck down even if it took place immediately after such a long voluntary confessional statement as exhibited before me in this particular matter.

In applying my discretion, in this case, concerning the incarceration of the accused Anton for quite some hours before his confessional statement, I must take into account the circumstances of the country. There is no CID at Bogia. It is true the CID should have come on 23 September but they did not do so. Speed is essential in this sort of situation but there may well have been valid reasons why the police were not able to organise themselves until the early hours of the 24th. In any case the delay was not unreasonable in all the circumstances, and Anton was given the first reasonable opportunity to respond to the allegations which were made against him when he was brought to the Madang Police Station and there put in the hands of the CID investigating officer. By that I do not mean to say that I dismiss the claim by the defence that this passing over of control had been made to the CID at Bogia, but clearly the facilities at Bogia were not sufficient to allow the police to carry out their work in a proper and professional manner. Those facilities existed at Madang and the accused Anton was given the first reasonable opportunity to say anything if he wished to do so when they got to Madang.

Accordingly I admit the confessional statement made on 24 September but reject the record of interview taken the following day.

Ruled accordingly

______________________

Lawyer for the State: Public Prosecutor.
Lawyer for first defendant: Public Solicitor.
Lawyer for second defendant: Moses Miva & Associate.