State v Moripi [1987] PGNC 48; [1987] PNGLR 376; N646 (30 November 1987)

N646

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER MORIPI AND GAELA WAGISA

Waigani
King AJ

28-30 September 1987
30 November 1987

CRIMINAL LAW - Evidence - Admissibility of record of interview - Where breach of s 42(2) of Constitution - Rights of "person arrested or detained" - Includes person in custody - Rejection within discretion of court - Record credible and no adverse effect on accused - Record admitted - Constitution, s 42(2).

The Constitution, s 42(2), provides that a "person who is arrested or detained" shall be informed promptly of the charges against him, permitted to communicate with a relative and lawyer and permitted adequate opportunity to consult with his lawyer, "and shall be informed immediately on his arrest of his rights under this subsection".

At the time of an alleged offence the accused was an escapee from lawful custody. He was apprehended, an information was laid, and he was dealt with for escaping from custody on the same day and returned to custody. Six weeks later a record of interview was taken.

On an application to reject the record of interview on the ground, inter alia, that there had been a breach of s 42(2) of the Constitution,

Held

(1) Section 42(2) of the Constitution, applies where a person (whether at large or in custody) is "arrested or detained" and its application relates to the arrest or detention in respect of the particular offence which brings about that arrest or detention.

(2) In the circumstances a delay of six weeks between arrest and detention and the taking of the record of interview constituted a breach of s 42(2).

(3) In the circumstances and taking into account the credibility of the police evidence and the absence of any adverse effect on the accused caused by the delay, the record of interview should, in the exercise of the court’s discretion, be admitted.

Ruling on Evidence

In the course of a criminal trial the accused objected to the tender of a record of interview on the ground, inter alia, that it had been obtained in breach of s 42(2) of the Constitution.

Editorial Note

See also The State v Paro Wampa at 120.

Counsel

J Mugabwa, for the State.
D Sode, for the accused.
Cur adv vult

30 November 1987

KING AJ: The hearing of the charges of robbery on indictment against each accused pursuant to s 386(2)(b) of the Criminal Code (Ch No 262) began before me on 28 September last. The evidence called by the State was that of three police officers in support of the tender of the record of interview of each accused. Objection to each record was taken and the matters proceeded on the voir dire with the evidence of each accused being taken as well as the police evidence. At the conclusion of the evidence and counsel’s addresses I reserved my decision pending the expected decision of the Supreme Court on a constitutional reference by Hinchliffe J as to the proper construction of the relevant provisions of s 42 of the Constitution. I thought, that was the appropriate course to take because the argument2 as to the admissibility of the records had closely concerned s 42. However, the decision of the Supreme Court has not yet been given and even though it may shortly be forthcoming I think it is very undesirable to let further time pass before dealing with these two matters and I shall decide the admissibility of the records now. The parties know of the impending Supreme Court decision and of its potential importance and can protect themselves by appealing from my decision if they wish.
I shall deal with the record of interview of each accused in turn, notwithstanding that there were features of the evidence that were common to each ie complaints by the accused about assaults, failure to explain constitutional rights and putting words into the accused’s mouth.

First, in relation to the accused Peter Moripi, the record of interview was conducted at Boroko Police Station in, it seems, the serious crime squad’s interview room, on 16 April 1987. The accused was at the time of the interview in the lockup at the station. Constable Peter Sireh conducted the interview with Constable Peter Sanat as the corroborator. Both gave evidence and said that the accused was properly cautioned and told of his constitutional rights; that he seemed in good health; that he wanted the interview conducted in Pidgin; that he spoke freely and voluntarily; that no threats, promises or inducements were made to him; that he was not assaulted; that words were not put into his mouth; that he did not want the record read back and that he refused to sign it. They did not depart from this evidence significantly in cross-examination. Constable Sireh said he did not record the accused’s comment not to bother reading the record back to him, which seems curious, and the record does contain an alleged answer of a type which one frequently sees, namely that the accused would see a lawyer "if one came to the cells". That sort of answer, like "I’ll see a lawyer later" or "after the interview", is always a little hard to accept, but having seen the police and the accused in the witness box I have no hesitation in accepting the police evidence over the accused’s where there is a conflict. He was not an impressive witness, and in fact at the close of his cross-examination on 29 September 1987 he gave a series of answers which substantially destroyed his earlier criticisms of the record of interview. The following morning, obviously appreciating the significance of those answers, he went back on them, blaming the interpretor for poor interpretation and saying he was confused. However, he had given all his earlier evidence with no difficulty or complaint through the same interpretor and there was no apparent problem in the way he gave those final answers in cross-examination and I cannot accept that they were not intended.

Accordingly, I would not reject the record on the basis of the accused’s own evidence and I turn to the other criticisms of it. First, it was said that following it the accused was not promptly charged. The information was in fact laid on 21 April 1987. However, I do not see how that could affect the already existing record of interview and the delay in any case is not great and is completely explained by the fact that the Easter holidays intervened between 16 and 21 April. The information was laid on the first ordinary working day after the interview. Secondly, it was said that the name of a second corroborator on the list of witnesses prepared for the District Court supported the accused’s evidence that there were more than two police present at material times. I have already said I prefer the police evidence to the accused’s where there is a conflict but in any event a reasonable explanation of the additional name was given which I accept, ie that it was wrongly included, the officer concerned having been involved in the interview of yet another accused. Finally, it was said that the whole procedure showed that there was no real opportunity given to the accused to exercise his rights. Again, I have accepted the police evidence over the accused’s which really disposes of this criticism and in all the circumstances I admit the record of interview of Peter Moripi.

In the case of Gaela Wagisa I think it is fair to say that in addition to making similar complaints about the record of interview generally, two specific additional matters arose. It was said that the accused was taken to Gaire Village and there threatened with a pistol and that on another occasion he was hit with a wheel spanner. It was also said that since he was apprehended in April the delay of about six weeks between then and the record of interview on 1 June 1987 which resulted in his being charged was too great.

Again I was not impressed with the accused in the witness box and I prefer the evidence of the police, on this occasion Constable Senat as interviewer and Constable Kari as corroborator, to his. Thus I reject his suggestions of threats and violence and I accept that he in fact said he wanted to see a lawyer after the "conversation" (ie the record of interview) despite the doubts that alleged answer and similar answers always create in my mind.

However, the six week delay requires more consideration. The position is that at the time of the alleged offence the accused was an escapee from lawful custody. He was apprehended, and dealt with for escaping on 21 April 1987. It was not until some six weeks later, as I have said, that the record of interview took place. There are many decisions in which lesser delays have been criticised and have in some instances led to the rejection of the record of interview. In this case, if the bare facts were that the accused had been allowed to spend six weeks in custody before interview, and without being told, for the purposes of this offence, of his constitutional rights under s 42 of the Constitution, I would without hesitation reject the record. However, the State argues that the delay does not assume any real significance because the accused was going to be in custody in any case for two reasons; he was to serve his original sentence and had been given a further sentence for escaping. In those circumstances it was said that the delay on the part of the police, resulting from pressure of work or for whatever reason, was not overbearing and did not taint the record of interview. The accused could not have been anxious or depressed or otherwise overborne about his imprisonment, because he was going to be in prison anyway, and it was also said that if anything the delay may have lightened his mind about the alleged offence because he may have thought he was not to be charged in respect of it.

The defence responded by saying that the Constitution was clear and applied to all persons, not distinguishing between those in gaol and those at liberty; and that it was wrong, or at least may be wrong, to assume that a person already in gaol may not be worried to the point of being overborne as to his thought processes by the prospect of an added period of imprisonment for a fresh offence. It was said that a person in gaol, who knows what it is like and had found it disagreeable enough to try to escape once, may have been greatly affected by the prospect of a longer period of imprisonment so that for his peace of mind and proper opportunity to deal with questions in a record of interview he ought to have been interviewed just as promptly as a person taken into custody for the first time ever. In this regard it was pointed out that the accused Moripi had named Wagisa in his record of interview on 16 April so there was no real reason why Wagisa should have been kept, as it were in suspense, for six weeks.

Section 42(2) is not easy to apply in the present case. It applies where a person is "arrested or detained" and on my reading of it it relates to arrest or detention for the particular offence which brings about the arrest or detention. In other words, if this accused had been arrested or apprehended for the robbery he is now charged with, he ought to have told of the range of rights available to him on the basis that they related to the reason why the police were holding him. True it is that this restriction does not emerge in plain terms from the words of s 42(2), but the provision must have practical effect. It cannot operate in a vacuum. People are detained for particular reasons, and I think the rights given under s 42(2) must relate to particular detentions or arrests for particular reasons. What then, is the operation of s 42(2) when a man is arrested for good reasons other than a particular offence for which he might then, or very soon afterwards, also have been arrested or detained? I do not think the rights of the citizen under s 42(2) can be regarded as thereby abolished or even suspended indefinitely. The section is a beneficial provision for the protection of the individual and I agree that it must apply to persons already in custody. Certainly the provision should not be read so as to deprive the police of reasonable latitude. The public interest in protecting individual freedom must be balanced against the public interest in giving the police a reasonable and proper opportunity to investigate crimes and procure legitimate confessions. However, I see no reason why a person in custody for other reasons should have a record of interview for a fresh matter delayed for six weeks and I think that at least once Moripi had named Wagisa in his record of interview on 16 April 1987 it was the obligation of the police to interview Wagisa promptly after his recapture about the alleged fresh offence. In the circumstances I am satisfied that s 42(2) was breached.

That leaves as the final question whether I should nonetheless exercise my discretion in favour of admitting the record into evidence. Having accepted the police evidence as to the actual conduct of the record of interview itself, it seems to me that it would therefore only be proper to exclude the record if the six week delay created a doubt about whether the accused was in fact depressed or overborne or in some way affected by that lapse of time so as not to be able to cope properly with the interview. Neither side gave any evidence as to his conduct, behaviour or demeanour in gaol during that period and he did not say he was worried by the delay. But the police said he seemed normal during the interview itself. In other words the only relevant evidence tends to suggest that he was not adversely affected by the delay.

The onus is on the prosecution to justify the admission of the record of interview and the evidence just mentioned is perhaps a slender basis on which to rely to discharge the onus but since I have accepted that police evidence and it is, as I see the matter, the only relevant evidence, I shall admit the record of interview of Gaela Wagisa also.

Ruled accordingly

____________________

Lawyer for State: Acting Public Prosecutor.
Lawyer for accused: Public Solicitor.