State v Kot [1987] PGNC 11; N623 (22 September 1987)

Unreported National Court Decisions

N623

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
KONTS KOT

Mount Hagen

King AJ
21-22 September 1987

KING AJ: Having heard the nce of twof two police constables who made a record of interview of the accused and the accused evidence disputing what they said, all of which was taken on the voir dire, I must now decide the admissibility of the record.

The constable who transcribed the record of interview, constable Oibi, said that after lunch on 4 February, 1986 the accused was brought to Mt. Hagen police station by three coffee buyers who said they had been held up and robbed earlier in the day and after the robbery had pursued the robber and had physically brought the accused in to police custody. He said the accused had bruises on his face and “bloodstains” which were explained on the basis that the accused had resisted the coffee buyers when they said they were going to take him to the police and a fight resulted. He said that first the three witnesses had statements taken from them and then he and constable Monori, who acted as corroborator, took the accused in to the duty officer’s room and conducted the interview. His evidence as to the formalities was given, namely that the accused was cautioned, asked whether he understood pidgin, and informed of his constitutional rights. He said the accused replied that he could speak pidgin, whereupon the accused was told that what was proposed was that he would be questioned in pidgin but the interview transcribed in english, and the accused agreed to that. He said that at the completion of the interview the record was read back to the accused who made his mark in the form of an “X” or cross because he could not write. I should mention that constable Oibi said the accused was not threatened, assaulted, given any promise or inducement, and answered the questions asked of him freely.

The record was then tendered. (The State indicated, and the defence accepted, that all three witnesses from the coffee company were now dead so that the record of interview constituted the only evidence against the accused). The defence objected to the tender and outlined the grounds of objection which were:-

(1) ҈ That that the accused wasuassaulted by the police.

(2) That his phy ccalitind wasn was such that he ought ve belowedee a doctor or the interview delayed.

(3) ҈  Th0; Th0; That therea brea breach of s. 42(2) of onstin in he was not told aold at thet the outs outset of his rights under that provision and not ever asked whether he wanted to see a friend family member oyer.

(4) #160;&#160 ¦
ha; The questions ions put were improper as being “leading”.

Thereafter the State recalled Constable Oibi who denied these assertions although he did say as to (3) that the accused said he had a brother who he was frightened to contact and did not wish to contact, and then that at the completion of the interview another brother of the accused’s came to the police station to enquire after him.

The constable was then cross examined.

Before I deal further with the evidence I should say that I personally find this procedure on the voir dire, which I was told was standard in this country, most surprising and unfair to the accused. After the first police witness had given routine and predictable evidence in support of the record of interview, the defence counsel stated the attacks to be made on it. (I took the precaution of sending the police witness out of court when I was told this was to happen). Then he was led through further evidence in chief covering the very ground the defence would have to cross examine on the alerting him to it. If there is any value in the spontaneity and surprise of cross examination this procedure seems to rob the accused of it to a significant degree. I should have thought the grounds on which a confession in the form of a record of interview is likely to be attacked are well known and likely to be obvious on the facts of individual cases, so that it would be fairer for the accused’s counsel to cross examine without showing his hand in advance (except to the extent that an experienced prosecutor can anticipate). Then if inroads are made in cross examination it would be for the state to repair them if possible in re-examination or by other evidence in the usual way.

In any event it was put to constable Oibi that the accused was brought to the station the day before and kept overnight in the cells; that he was assaulted by Constable Monori who punched and slapped him and by the witness himself who hit him on the head with the barrel of a shotgun; and that his constitutional rights were not “made available” to the accused. In particular it was pointed out that at the start of the record of interview only a caution was administered, and that not until question 54 was the detail of s. 42 of the Constitution really put, and that there was no record of any offer to the accused of an opportunity to see a friend, family member or lawyer. The constable said he made that offer but “must have missed” transcribing it and the response. He said he had conducted many records of interview.

Constable Monori was called and supported the evidence of Constable Oibi in most requests. However he said he could not recall whether an offer was made to the accused to see a friend, member of family or lawyer. He also said that the accused showed signs of having been in a fight and was unsteady on his feet when first seen at the counter of the police station. But half an hour or so later when the record of interview was begun after the statements of the witnesses had been taken he said the accused was “all right”. This supported Constable Oibi who said the accused’s injuries were not serious, that he was in a fit state, and did not ask to see a doctor.

Then the accused gave evidence. Frankly I felt little confidence in anything he said. He mentioned just about every standard attack one hears on records of interview and of course he had been in custody, exposed no doubt to some experienced criminals, till May this year. Moreover his evidence became more dramatic as he went along and he went far beyond anything his counsel put in cross examination. Examples are that he was knocked unconscious for half an hour and lay on the floor of the duty office before being roused; that he did not make the mark at the end of the record at any time; that it was made two months after the interview by Constable Oibi at the time of a District Court hearing; and that he was brought from the premises of “Hagen Coffee” to Mt. Hagen police Station by the two constables. He did, however, tell me that he actually knew of his right to see a lawyer or friend or family member but simply did not do so.

I certainly believe him in those answers because they were adverse to him when he had shown himself very able to offer evidence favourable to him. He said he could not speak Pidgin but he made admissions in cross examination which showed he could.

In short I would in general prefer the police evidence to his but given the absence of any offer recorded in the record of interview to allow him to see a lawyer, friend of family member I cannot accept that that offer was in fact made and “missed out”. Given also the absence of any full outline of s. 42 at the beginning of the record and not until it was substantially complete and many admissions of the offence recorded, I cannot accept that s. 42 was explained earlier.

Whilst I regard s. 42 as poorly drafted because the expression “or detention” is not included after “arrest” in the closing words, so that it could be argued that only after arrest is it necessary to give full effect to s. 42 - that construction according with the standard view that the words the legislature uses last are to govern the earlier words if there is any doubt as to meaning - the section has been interpreted by Kapi, D.C.J. in The State -v- Paro Wampa OIS (UNREPORTED 15 June 1987; N. 599) as requiring that the whole range of rights under s. 42 be put to an accused person at the outset: see p. 3 of his Honour’s reasons especially where he says:

“This effectively means that before any questions are asked about a person’s participation in a crime, he is to be informed of his rights”.

I would follow this decision regardless of my own view about the wording of s. 42 in any event, but I have no doubt on further consideration that, with respect, Kapi, D.C.J. is entirely correct. Section 42 is a beneficial provision and should be construed liberally in favour of the citizen if there is any doubt about its meaning and in practice it must be an easy matter for the authorities to ensure that s. 42 is fully put to persons with whom a record of interview is to be conducted at the very outset, so the decision has no effect in practice which is undesirable or unworkable.

In this case it is clear that s. 42 was not put in any detail until Q. 54. Thus there is a clear breach. The defence counsel relied on that and on the condition of the accused as abovementioned in two ways. First he said it caused doubt about whether the police really did assault the accused and are blaming the Coffee people. Secondly he said in ordinary fairness the signs of physical violence should have led the police to delay the interview and/or have a doctor see the accused. He added that the breach of s. 42 in this case was no mere technicality because the accused’s brother in fact came to the police station very promptly on the evidence of the police. Finally, whilst not pressing the ground about “leading questions” - which was clearly hopeless on reading the record - he relied on the fact that no Pidgin transcript was made but only and English transcript.

Although I am not satisfied that the accused does not speak Pidgin, there is no doubt he does not speak English. Although I do not think he is very sincere in his evidence, on the face of things he disputes, strongly, the record of interview.

In this connection in Balo -v- The Queen 1975 PNGLR 378 the following passage appears at p. 386 in the reasons of the then Chief Justice:

“... whilst the broad outlines of an account given in another language are unlikely to be falsely or mistakenly recorded in English by a police officer the trial judge should not be slow in the exercise of his discretion to reject as unfair to the accused the English translation of what was said in Pidgin or Motu in a proper case where it is genuinely disputed by the accused person...”

These comments were in the context of Police instructions about records of interview which may not still be in force. But if they are not they should be and in my experience where records of interview are conducted in Pidgin a Pidgin typescript is first made then an English translation. That procedure was departed from here.

In the face of these criticisms the State counsel submitted that in my discretion I should still admit the record of interview because the accused admitted he knew of his rights under s. 42 in any case; that s. 42 was substantially put in Q. 54, that his evidence was so obviously false the failure to take a Pidgin transcript was of no significance; and for the same reasons I should accept that he was fit to be interviewed.

I have hesitated because I think there is much force in these short comments from the State but there is clear substance in the defence criticisms and on balance I cannot be satisfied that the record of interview was fairly conducted. In those circumstances, though I may be setting a guilty man free, I have no option but to reject the record and I do so.

Lawyer for the State: Mr. Norum.

Lawyer for the Defence: Mr. Boka.