State v Julio (No 1) [1996] PGNC 2; N1446 (21 March 1996)

Unreported National Court Decisions

N1446

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 398 OF 1995
THE STATE
v
JOHN JULIO, MARA INIMO, DEBENI OTAUARI, ISOA SUI, MAGAIMA DAGAME AND HARUA MUDUPAI (NO 1)

Waigani

Passingan AJ
21 March 1996

The six accused were jointly charged with seven counts of arson pursuant to s. 436 of the Criminal Code, Chapter No 262. The charges relate e burniburning of the rubber factory, the rubber testing labora cuplump shep shed, toolshed, weigh bridge, a mazda utilitya motor cycle on the 11th of November, 1993. During the course of thal rial the StateState sought to tender in evidence the folg documents:

(a)&#16) &##160;; the alle alleged Cged Confessional Statement of the accused Mara Inimo;

(b)&##160; ټ the; the alleged Coed Confessional Statement of the accused John Julio;

(c) ҈& the Rece Record terd terview of the accused Mara Inimo;

(d) the Record of I ofrvnte ofew of the accused John Julio;(e)& the R ofrdnterIiew view ofew of thof the accused Debeni Otavari;

(f) &##160;; thord oord oervietrviethe accused Mugama Dagame;

g) &ـ the Rece Record ofrd of Interview of t of the ache accusedcused Isoa Isoa Sui; and

(h) ـ&#1he Reof Interviewrview of the accused Isoa Sui.

Counsel for the accused objected on d on the fthe following basis:

(1) ـ҈ these documeocuments were obtained involuntarily and therefore inadmissible.ible.&#160 The accusoa Sui was assaulssaulted e presence of the accused Debeni Maguma and Harua. They were all putear.

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(2) ;ټ Defmainfmain contecontention is that the village leaders were threatenedtened by the Police on the 21st of November, 1993. were threatey an to pe thpe the lthe list of suspects by 9:00 am on the 22ne 22nd of d of November, 1993. Failure would resulthe bure burning down of Merillage by the Police. That the alleg8220;appeal&peal&peal” was nothing more than threats.

(3) ҈ That ise lf s opectspects taken by the village leadersaders was obtained illegally and therefore inadmissible. The Police exceeheir s by the list to obtain statements from the accused Isoa Sui and John JulioJulio and and also also in conducting the six Records of Inte.

(4) & That there was a breach oach of s. 57 of the Nationalional Constitution.

Counsel:

K Popeu for the State

B Takin for the accused

21 March 1996

PASSINGAN AJ: The six accused pl notd not guilty to all seven counts of arson. On the voire direard evideevidence from six state witnesses and eight defentnesses.

The existence of the two alleged confessional statements are not in disputespute. Thused Isoa Sui and Johno ohno did not deny making the sthe statements to the two Investigating Officers. Though to a certain degend tended to confuse the dence between the statements and the actual Records of InterInterviews. It is also admitted that the six Records of Interviews oir contents were made by each accused.

Defence evideevidence on the voir dire consisted of the sworn evidence of the six accus160; the Village Councillor and the Village Court Magistratstrate. They were called in relation to the list of suspects they had provided to the Police at Moreguina.

Briefly, their evidence was that the village leaders had met and prepared the listout consultation with the six accused and the rest of thosethose on the list. The suspects wereed over tver to the Police on the 22nd of November, 1993. The ad also confirmed in e in evidence that they had no knowledge and were not aware of the listl Police at Moreguina called out their names on the 22nd ofnd of November, 1993. The following point broughrought out clearly in the defence evidence. The list of ct was prepareepared without the knowledge and consent of each accused. And that eachsed gave ae slse statement to the police about their involvnvolvements in the crime. They have done so onse froe from village leaderorder to protect Merani Village.

Now what is the Defence main point of objection ? An ? Are the documents inadmissible because were obtained under threats and actual assault on the accu accused Isoa Sui? Or simply that thtents of s of all those documents are false although made voluntarily.

The standard of proof of voluntariness of a confession is that of proof beyond&#16asonable doubt, with the onus upon the State. See thee the foll authorithorities RV Fari Pako (1962) No 259, RV Amo Amuna [1963] PNGLR 22, 23 and RV Wendo and Others [1963] PNGLR 217, 228.

The State must prove beyond reasonable doubt that the two csional statements and the sthe six records of interview were made voluntarily. In other words tate must pust prove that those statements were made in the exercise of a free choice to speak or remain silent. A statement of rinciple whle which have guthe courts in Papua New Guinea is set out in McDermott VR ( VR (1948) 76 CLR 501, 511, (quoted at p. 222 Criminal Law and Practice ofa New Guinea):

“If [the accused] speaks becausecause he is overborne his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement in thelt sult of duress, intimidation, persistent importunity or sustained on undue insistence or pressure, it cannot be voluntary.”

The present case hasown unique circumstances. Therebeen a robbery onry onry on the 11th of November, 1993. The dec who comes from Merm Merani Village was killed. Police went to illage and and made an “appeal” to the village leaders to assist identify persrom the village who might have been responsible for the dame damage caused to the Moreguina Department of Primary Industry Rubber Factory and other properties. Villeaders gathered and mand made a list of suspects. There is dispn whether or r or not the accused were at the gathering and had given their names voluntarily. ccused and others were hane handed over to the Police on thd of November, 1993. They were chargth various ious sous summary offences including the present charges of arson.

The eve is that on the 22nd of Noof November, 1993 the accused and others were handed over to the Moreguina Police Station. Senior Constabchols Wiugu iugu questioned the accused Mara Inimo in relation to the incident on the 11th of November. That the accused wutiond hind his constitutional rights explained. Sergeant Augustine a was pwas presenresent. The ac Mara agreed withconthcontents of the statement and signed. Therviewing officer then chen continued with thth the Record of Interview after administethe cn and again explaexplaining the accused’s constitutiotutional rights. Constable Allen Tabaru wes present during that interview. The Accused read the Record of Interview and signed it.

John Julio is the second accused whose confessional stateis objected to. He was brought into olice lice Statiotation by village leaders. A list of suspects anded oded over to the Police. ant Augustine Amarua took took charge of him, cautioned him and explained to him his constitutional rights. Constableolas was nt.&#16. The Accused then read tae stae statement himself and signed. Serg Sergeant Augustine nuntinued with the Recf Interview in the same manner. The cautid constitutional onal rights were explained.ined. At the end ofRecord of intf intervie accused read it and signed. The date whe allegalleged eged “appeal” was made is in dispute. State witnesses say s made on the 13th of November, 1993. Defwitnesstnesses say it w it was made on the 21st of November. De Counsel submits it coul could not be the 13th of November as the villagers were mourning the death of the victimictim of the robbery.

The next point of te concerns the events that took place on the 13th Novemberember, 1993. State’s evidence at that the Police Station Commander at Moreguina, the Mobile Police Commander and other policemen visited Merani village on the 13th of November. A meetith vi leaders was hwas held where some refreshments were sere served. The two police commanders then made an “appeal&#822 the village leaders to assist identify those who may have been responsible for the destrucstruction to various properties at Moreguip>

The Village Councillor and the Village Court Magistraistrate giving evidence for the Defence told the Court the visit on the 13th of November was brief. hat the demand for a list list of suspects was made on the 21st of November, 1993.

Counsel for the accused submits that it was more than an “appeal”. That the demands were e efhe effect that village leaders prepare a list of suspects by 9:00 am on the 22nd of November, 1993. Failure to do so would t iult in the burning down rani village. That this was a threat

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On the ethe evidence before me I find that those events alleged by the State took on the 13th of November, 1993. The e Station Coon Commandmmander was not cross-examined on this point.

It is not in dispute that the accused and others were handed over to Moreguina Police with the list on the 22nd November, some 9 days after police visit on the 13th of November, 1993.

Defence counsel submits that the facts and circumstances of this case are similar to the case of the State v Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138, a decision by his Honour Mr Justice Pratt. Thesed were on a trial on l on a charge of robbery. Objection was to the tend tender of confessional material and a record oerview conducted and recorded some eighteen hours after the confessional material had been been obtained. His Honour found the ssional statement to have bave been made voluntarily and admitted it. The Record of Interview was rejected. At pages 140-is Honour

“The upshot of this is that in my view the first point must best be decided against the accused. Iatisfeyondonable doubt thbt that the statement was taks taken voluntarily and secondly. I 0; I find nothisitive inve in the conduct e Police that should cause me to exercise my discretion against the admission of the confesonfessional statement. I therefore re intdence.&#ce. I will not however,t the rthe recordecord of interview. The essential point concerning that document is Anton should have been charged on the afternoon of 24th September and chawged with thth the serious offences which he originally adm to Sgt Major Purai.”

His Honour continued at d at p. 141:

“I do not think the system which seems to have beveloping of late of takingaking a detailed confessional statement followed up with a record of interview is one which should be encouraged by the courts. Eithe Police must be satissatisfied if they get a long confessional statement and leave it at that or they must avoid anything except perhaps the honest admission if they wish to pursue the matter by way of record of interview. Certainly they will be in great danger of having the records of interview struck down if it takes place on the day following the taking of a detailed confessional statement.”

With respect I adopt His Honour’s statements. The final testver, as I ha I have quoted earlier is whether or not the minds of the accused Mara Inimo and John Julio were overborne at the tiey made those statements.

I am satisfied beyond reasonable doubt that the statementsments of Mara Inimo taken on the 22nd of November, 1993 and the Statement of John Julio taken on the same day were obtained voluntarily. Accordingly, I admit both Statements into evidence. In thecise of my discretioretion I reject both records of interview taken shortly after those stats.

Defence Counsel further submits that this Court exercise its powers under s. 57(. 57(1) & (3) of the Constitution to re thae that the list of suspects was obtained illegally and that the four remaining records of interviews be rejected.

Sn 57 (1) of the Constitution provides:

“A right or freedom referred to in this this Division shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for that purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the Court, unable fully and freely to exercise his rights under this section by a person acting on his behalf whether or not by his authority.”

Section 57 (3) provides:

“A Court has jurisdiction under subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).”

Counsel for the accused made reference to a Supreme Court decision - Constitutional Reference no. 1 of 1977 [1977] PNGLR 362. It isitted that this CourtCourt has the power to declare that the list was illegally obtained and therefore the alleged confessional statements together with all the Records of interviews should be excluded from the evidence.

I find nothing positive in vidence as to s to the conduct of the Police on the 13th and 22nd of November, 1993. I am satisthat it was a no a normal police approach to make an “appeal” to the village leaders for assistance. I find there ievidence of e of any impropriety or assault on the accused or any villager for that maat matter. I am satisfied that the pions of s 42 of the Constitution were complied with. I am satisfied d reasonablonablenable doubt that the records of interviewsebeni Isoa Muguma and Horua were obtained voluntarily. I therefore athose recordecordecords of interview into evidence.

accordingly.

Lawyer wyer for the State: Public Prosecutor

Lawyer for the Accused: BT Gobu & Associates Lawyers