State v Garo [1996] PGNC 3; N1521 (11 April 1996)

Unreported National Court Decisions

N1521

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1449 OF 1995
THE STATE
v
BENJAMIN GARO

Popondetta

Batari AJ
9-11 April 1996

CRIMINAL LAW - Evidence - Confessions and Admissions - Record of Interview - Admissibility - Onus of Proof.

CRIMINAL LAW - Record of Interview - Where unsigned - Discretion - Interest of Justice - Unfair circumstances - Admissions excluded.

Cases Cited:

State v August Toiamia (1978) N145

R v Gelu Gava (1962) N265

State v Alan Woila [1978] PNGLR, 99

McDermott v R (1984) 76 CLR, 501

Driscole v R [1977] HCA 43; (1977) 137 CLR 517

State v Gou Mubin [1990] PNGLR 99

Voir Dire

This ruling was made on the admissibility of a record of interview.

Counsel:

D Mark for the State

R Tupundu for the Accused

11 April 1996

BATARI AJ: The accused has challenged the admission into evidence of a Record of Interview conducted between him and ConstSopale Apkas. He0; He claims hifessions ions were obtained contrary to s.28 of the Evidence Act, Ch. No.48 which provides:

“28. Confessions Induced by Threats

A confession that is tendered in evidence incriminal proceeding shall nall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.”

As it transpired during the voir dire, the accused also seeks exclusion of the confession on the basis of unfairness.

The alleged arson for which the accused is indicted and stands trial occurred at Gabone Village on 4 July 1995. P investigations into burn burning of a trade store owned by Alex Tali at the village led to the arrest and interrogation of the ed.

The first issue, which is whether the confession was induced by threats by persopersons in authority rests on the defence showing that the inducement preceded the confession and that such inducement had not been removed at the time of the interview. (Refer State v August Toi(mia (1978) N145). He must presvidence and crnd cross-examined the State witnesses on the facts he alleges. (See R v Gelu-Gaua2) N265)N265). The onus howeverains with with the Prosecution to prove beyond reasonaoubt that the confession waon was voluntarily made in the sense that it was made in the exercise of a free choice to speak or remain silen60; (See State v Alan WoilaWoila [1978] PNGLR, 99. See also StaKwanbol Embogombogol (1977) N91).

In his evidence, the accused stated that during the interview, Constable Sopale threatened to hit him with his fist when he denied the charge. Unersisthreats from the the the Constable he gave-in and simply agreed with what was put to him. He claimed the interview oiew onducted without a corroborator; he was not asked to read the document nor was the documentument read back to him; he was not caution explained his right to see a relative or lawyer of his owns own choice prior to the interview.

Constable Sopale’s evidence was that he interviewed the accused, in accordance with all proper safe guards. He advhim of his rights ants and administered the caution. He also al him the opportuportunity to see and talk to his relatives including a lawyer at 6 Mile Poltation where the interrogation was conducted. He denied hitd hitting or threatening the accused either before or during the formal conversation. The interview, was cted ined in the presence of Constable Mai.

His evidence continued that at the end of the interview, the document was signed by the accused and witnessed by Constable Mai. However whenronted with a th a document being proposed for admission into evidence and which document did not bear the accused’s signature, the Constable responded, &;I must have made a mistake...” The Constable hble had cl arly shifted his position when he realised that his assertions were contrary to the document in issue. It seems to me, ConstabpalSopale have given evidence ‘off the cuff’ sopeak. However it does does not necessarily followed that he had been untruthful about the accused signing the Record of Intervi160; The significance of thof that evidence became apparent when the accused’s testimony revealed the existence of another document which he actually signed. orroborator, Constable gave gave substantially the same evidence, though on some aspects, both differed when pressed on details.

Before I deal with the issue of inducement, I refer to the evidence which revealed the existence of a second document purportedly containing the accused’s confessions and bears his signature. That document, thnot the sthe subject of this voir dire was referred to several times by the accused in his evidence. The confusion over which dot was in issue was exacerbated by pointless cross examination on the existence of a documencument that State did not rely on despite its existence. I am satisfhe accused had had been truthful about being interviewed twice. He consistently stated that in one interview, he refused to sign the document but on another occasion he signed a two page document under threats from Constable Sopale. On both occasions, heed beed being cautioned or given his rights prior to the start of the interview. The evidence o existence once of the signed record is relevant in assessing the credibility of State witnesses and the accused.

I notice of objection to the admission of the Record of Interview, the accused specifically ally alleged that the investigating officeeatened to kill him. He also al the officer thrr threatened to hit him on his abdomendomen which, to the officer’s knowledge had a medical condition. Throughout his evidence however, he stated merely that the investigating officers threatened to hit him when he denied the allegations. I am not satisfied that he was threatened prior to his confession. Even if I find that hethre threatened, I could not be satisfied that the effect of the threats prevailed from the start and throughout the intervnd th was a decisive five factor in causing the accused to speak. (Mott v R (1984) 764) 76 C 76 CLR 501).

I now turn to the issue involving the unsigned record.

The learned authors of Cross on Evidence, 4th Aust. Ed., at p.978 para 33735 state:“An unsigned record cord of interview is admissible to the extent that the accused has adopted it; if part only is adopted, only that part is admissible. There is a discretion to exclude records of interview as unfairly obtained.”

That passage has two legs to it: An unsigned record of interview is admissible to the extent that the accused has adopted it; or sec, if part only is admitted tted only that part is admissible. Bituations relate to the cthe contents of the confessional statement or record of interview that must be considered for admission or exclusion from evidence.

The paramount requirement is the trial should be conduconducted fairly and that in all cases in which an unsigned record of interview is tendered, the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded. (See Driscoll v. R ) CLR, CLR, 517). Thus, the admn of an unsigunsigned record would in some cases weigh unfairly against the accused. In other ices, it would beld be plainly right to admit an unsigned record where it is subsequently shn court to have been fairlyairly obtained and properly recorded and adopted by the accused as in the case of The State v Gou Mubin [1970] PNGLR 99.

In this case, there is no evidence from Constable Sopale that he read the record back to the accused. The evidence on this came came from the accused who said he was not read the record nor was he asked to read it. I accept thesed&#s versionrsion as the State did not adduce evidence to the contrary. The evidencidence of Sopale which curiously stated the accused wanted to give his story in Court implies the accused had exercised his right to t to remain silent or that he had reservedversion to be given later in court. That statement also supo supported the accused’s evidence that he did not want to talk, but only did so after persistent questioning by the police. I evidence when asked the the reason he did not sign the record of interview, he stated, “I did not know about that thing, so I did not sign”.

On the whole of the evidence o taking of the accused̵’s confession, I am not satisfied that the accused was cautioned or given his constitutional right and the opportunity to exercise that right. I am also not sied that that the unsigned record was fairly obtained and properly recorded and adopted by the accused. I consider that its admn wion would tip the scales unfairly against him. I r the admisof the recorrecorrecord in the exercise of my discretion.

Lawyer for the State: Public Prosecutor

Lawyer for ccused: A/Public Solicitor