State v Wampa [1987] PGNC 69; [1987] PNGLR 120; N599 (15 June 1987)

N599

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

STATE

V

PARO WAMPA & FIVE OTHERS1

Goroka
Kapi DCJ

15 June 1987

CRIMINAL LAW - Evidence - Admissibility of record of interview - Where there is a breach of s 42(2)of Constitution - Rights of person "arrested" or "detained" - Loss of "liberty" - Nature of rights - When to be given - Duty of police - Rejection of interview within discretion of court - Constitution, s 42(2).

The Constitution, s 42(2), provides

"(2) A person who is arrested or detained:

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of the charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice; and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection."

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

Held

(1) For the purposes of s 42(2),

(a) a person is "arrested" when he is charged with an offence and taken into custody;

(b) a person is "detained" when he is taken into police custody in connection with an offence but has not yet been charged with an offence;

(c) a person loses his "liberty" when he is either arrested or detained;

(d) the need to inform a person arrested or detained of his rights under the section arises at the point when he loses his liberty: it is not related to the making of a record of interview;

(e) the right to "communicate without delay" must be given at the same time as the person arrested or detained is informed of his rights under the section;

(f) the right of the person arrested or detained to "communicate" may be exercised or waived but only at the time it is to be given: an offer to so communicate at a later time mis-states the nature of the right;

(g) it is the duty of the police to permit the person arrested or detained who exercises his right to communicate, to do so, "wherever practicable".

(2) There had been a breach of s 42(2) where a person was not informed of his rights under s 42(2) until three weeks after he was detained when a record of interview was about to be made and at that point he was informed that he had the right to see a relative or friend "now or later".

(3) Whether or not a record of interview should be rejected where there has been a breach of s 42(2) is a matter for the discretion of the court, to be exercised on the facts of each case.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362, followed.

(4) In the circumstances the record of interview should be rejected.

Cases Cited

Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

Ruling on Evidence

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

Counsel

D Ashton-Lewis, for the State.
C Inkisopo, for the accused.

15 June 1987

KAPI DCJ: During the course of the trial of this accused person, the prosecution sought to tender a record of interview which was conducted with the accused Raun Paro. Counsel for Mr Paro objected to the admissibility of the interview on the basis that there was a breach of s 42(2) of the Constitution, in that, the accused was not permitted to see his relatives. There is no dispute that the record of interview was made voluntarily. I have been asked to reject the record of interview in the exercise of my discretion on the basis that there was a breach of s 42(2) of the Constitution.

In order to determine whether there was a breach of s 42(2), it is necessary to construe its meaning. Section 42(2) of the Constitution is intended to protect every person who is arrested or detained. At the same time, it imposes a duty upon the police in connection with the person arrested or detained to inform him of certain rights and permit him to do certain things.

It is the duty of the police under this provision first, to inform the person arrested or detained of his rights under the section. A person is said to be arrested when he is charged with an offence and is taken into police custody. A person is detained when he is taken into police custody in connection with an offence but has not yet been charged with an offence. In both instances, a person loses his liberty. The need to inform a person of his rights under this provision arises at the point he loses his liberty. This is made clear by the words "and shall be informed immediately of his arrest of his rights under this subsection". 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. There is a practice amongst some policemen that the need to inform a person of his rights arises at the time of the record of interview. There may be cases where a record of interview is conducted at the same time as arrest or detention. If this is the case, then that is the proper time in which to inform the person of his rights. However, on other occasions, a person may be arrested or detained for several days or weeks before a record of interview is conducted. The need to inform the person of his rights arises at the time of his arrest and detention and not at the time of the record of interview. The police should be made aware of this because if there is a breach of this fundamental right, not only is there danger of rejecting the record of interview in a trial but he may be liable for sanctions under s 23 of the Constitution and compensation claims under s 58 of the Constitution.

In the present case, the accused was taken from the cell on 22 January for the interview. Upon further questioning by the Court of the investigation officer, it was revealed that the accused had been taken into custody on or about 24 or 25 December 1985. He was further questioned on whether or not the accused had been informed of his fundamental rights at the point of arrest. He was unable to say. No further evidence was called to clarify the question of whether or not the accused was given his fundamental rights. It appears from the whole of the evidence that the first time he had his constitutional rights communicated to him was at the time of this record of interview. On the evidence before me, it would appear that the accused had been held in custody for at least three weeks or more before he was interviewed on 22 January 1986. On this evidence, I find that there was a clear breach of the duty imposed upon the police to inform the accused of his constitutional right at the time of his arrest. I should add that at the time of the objection raised by counsel for the accused, no allegation was made of the failure of the police to inform the accused of his rights promptly at the time of the arrest. However, during the course of the evidence given by the investigating officer, the issue as to whether or not the police informed the accused of his rights promptly was raised when the date of the original arrest of the accused was given by the investigating officer. I raised the issue on my own initiative under s 57 of the Constitution. The court may raise these issues on its own initiative in order to protect the fundamental rights.

Secondly, the police have a duty, having explained his rights to see a friend, a member of the family or a lawyer, to explain to the person arrested or detained that he has a right to communicate with any of these people without delay. The provision itself also sets out at what point in time he should be permitted to communicate. This is indicated by the words "without delay". When those words are read together with the whole of s 42(2) of the Constitution, this must mean that he must be permitted to communicate with any of those people at that point in time. This effectively means that before he is questioned any further about his participation in the crime, it is his right to communicate with any of those persons named. It is clear from the reading of this subsection that the right to be informed and the right to communicate without delay with any of those people must be given at the same time.

It is important to emphasize that the essence of this right for the person arrested or detained is to communicate without delay. It is important that when a person’s liberty is lost at the point of arrest or detention, he needs to communicate with his relatives, friends and a lawyer for advice. He must appreciate that it is his right and he may choose to exercise that right at that point in time. It is also up to the person to waive the right to see any of those persons at that point in time. He has a choice of either exercising the right or of waiving the right to communicate. The choice is not between exercising this right at that point in time or at another point in time. When a person is given a choice of communicating at a later time, that is essentially different from waiving the right not to communicate. It would have been proper to put this choice to the person if the right given under this provision was "to communicate at any time". The proper choice to put to a person would be whether to exercise the right to communicate with any of those persons at that point in time or to waive the right to do so at that time.

If a person wishes to exercise the right to see any of those persons, it is the duty of the police to permit him to do so. This duty comes from the words "shall be permitted". The duty to do this is subject to the words "whenever practicable". Any number of circumstances could make it impracticable to communicate. What is not practicable is a question of fact and can be determined on the facts of each case. It may be proper, depending on the circumstances of each case, for a policeman not to permit a person to communicate.

In the present case, by the time the record of interview was conducted on 22 January, the accused had been in custody for about three weeks or more and no rights were explained to him and no opportunity was given to him to communicate. At the time of the record of interview, when the accused was finally given his constitutional rights, it is apparent from question 6 that the accused was asked whether or not he wished to see any of these persons at that time and he expressed the desire to see his relatives. This record confirms the accused’s story that he desired to see his relatives at that time. There was no attempt by the investigating officer to get the relatives at that time because in the next question, question 7, he asked the question which in effect is outside the scope of s 42(2) of the Constitution. I have held earlier on in the construction of this provision that by giving such a choice he was giving the accused person a choice of postponing his right to communicate. Even though the accused is recorded as having adopted that choice, he was misled as to the nature of the choice he had under s 42(2) of the Constitution. I reject the evidence by the investigating officer that he made an attempt to find his relatives after the record of interview was over. This is not recorded in the interview itself and that is not supported positively by the corroborator.

I therefore find that there was a breach of s 42(2)(b):

(a) for failure to inform the accused of his rights; and

(b) failure to permit the accused to see relatives.

The next question arises as to whether or not I should reject the record of interview as a result of these breaches. The law in this regard is clearly set out in the case, Constitutional Reference No 1 of 1977 [1977] PNGLR 362. It is still a discretionary matter.

In this case, for about three weeks or more the accused was kept in custody and no rights were given to him by the police and, therefore, no opportunity was given to him of the choice of seeing any of his relatives. This is a serious breach which has not been explained. It would have been sufficient for me to reject the record of interview in the exercise of my discretion on this basis alone.

However, even when the rights were finally given to the accused on 22 January 1986, he was not permitted to see the relatives as requested. The form of the question that was put to him misled the accused on the proper choice he had between the right to communicate clearly at that time or to waive the right to do so. I would also in the exercise of my discretion, reject the record of interview on the basis of this breach.

Record of interview rejected

______________________

Lawyer for the State: Vele Noka, Acting Public Prosecutor.
Lawyer for the accused: Ere Kariko, Public Solicitor.