State v Malepo (No 1) [1996] PGNC 80; N1448 (9 April 1996)

N1448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 903 OF 1991

THE STATE

v

JEFFERY HAROLD MALEPO (NO. 1)

WAIGANI: PASSINGAN AJ
1996: 9 APRIL

Evidence - Confession - Admissibility - Failure to inform accused of his right to speak or remain silent caution not understood - Questions and answers in the Pidgin language - Statement recorded in English - improper and unfair.

Constitution s 42 - Non-compliance - Effect on admissibility of confession - Court's discretion to exclude confession.

VOIR DIRE

Jeffery Harold Malepo was charged with Wilful Murder pursuant to s 299 of the Criminal Code. In the course of the trial the Prosecutor sought to tender an alleged Confessional Statement made by the accused at the Madang Police Station on the 27th day of July, 1993. Counsel for the accused objected on the following basis:

(a) Unfairness to the accused - the questions and answers were in the Pidgin language but the statement was recorded in English; and

(b) that the accused did not understand the caution.

L Maru, for the State.
L Siminji, for the accused.

9 April 1996

PASSINGAN AJ: The Accused had pleaded not guilty to one count of wilful murder alleged to have been committed on the 26th of October, 1991.

The State alleges that on that day between 9:00 am and 10:00 am the deceased, her two children and her mother had parked their vehicle in front of the Regal Bakery at Hohola. The deceased had gone into the bakery to buy some bread. She returned to the vehicle, got in and was about to start the engine when the accused and four others ran towards the vehicle. One of them ran to the deceased, sat on her laps and snatched the keys from her. She struggled and got out and attempted to assist her mother and the children. The five men were already inside the vehicle and had started the engine. Whilst attempting to free the mother from the seat-belt she got tangled. Both were dragged along the road towards the Eki Vaki Community School. The mother managed to free herself. The deceased was dragged for about 3 kilometres, suffered injuries and died as a result. State alleges that by dragging the deceased along despite her screams for assistance the accused and others intended to cause her death.

The State called two witnesses, the Informant and his corroborator on the vior dire.

The evidence was that prior to the 27th of July, 1993 the accused was in custody at the Beon Corrective Institution. At the request of Sergeant Bernard Mingnaut the accused was brought from Beon to the Madang Police Station. He was taken out from the cells to the Serious Crimes Office. It is an open office where every officer had a table and was attending to his duties at that time. The witness had wanted to ask the accused questions in relation to his escape in 1988. Senior Constable Richard Sibele was present.

Sergeant Minugnaut communicated with the accused in the Pidgin language. The questions were put in the Pidgin language and the accused answered in that language. The Statement was recorded in the English language. The Sergeant's evidence was that in the course of inquiries into the accused's escape he wanted to make confessions in relation to other offences he committed whilst he was at large. At that point the Sergeant cautioned him in the Pidgin language in these terms:

"Nau mi mast toksave long yu olsem, sapos yu laik yu ken toktok, tasol sapos yu bekim sampela toktok long dispela, bai mi raitim go daun long pepa na givim long Kot yu klia long dispela?

The accused answered "yes". The statement was then written down in the English language. He made confession of his involvement in various robberies and in the murder of the deceased the subject of this charge. The Sergeant's reasons for taking the statement in English was that he wanted it to be simple. He wrote it down in English because he did not wish to do a translation at a later date. The statement was then read back to the accused in the Pidgin language. The Statement was give to the accused who had a look at it and then signed.

The witness then instructed his corroborator, Richard Sibolo to confirm the murder the accused was confessing with Boroko Police. This evidence was confirmed by Senior Constable Sibolo. He called Port Moresby Police to confirm all the dates and charged the accused in the afternoon on the 27th of July, 1993. When asked in cross-examination why they did not sign the statement, they said, it was normal for the accused to sign alone.

DEFENCE EVIDENCE ON VIOR DIRE

The accused gave sworn evidence. He was at Goroka on the 26th of July, 1993. Police brought him to Madang arriving at midnight. He was asked about this trouble whilst at Goroka. He did not say anything. He was threatened by Police at Goroka. He was told he can speak about it whilst in Madang.

On the morning of the 27th of July, 1993 he was questioned in relation to his escape. Then the Police asked him about this trouble saying that they had information about it. He was not in a good mood, was in pain, sleepy and hungry. He did not say anything. He agreed he was cautioned in the Pidgin language. The statement was then explained to the accused in these words- "They told me, what you have told us is in this paper".

The following questions and answers appear from the accused's evidence in chief:

"Q. Did they say, 'You are not obliged to say anything...(caution)?

A. Yes.

Q. Did you understand the questions?

A. Yes.

Q. Why were you afraid?

. I have said, I was not in a good mood, I was sleepy and hungry.

Q. What language was used to caution you?

A. I think it was in Pidgin.

Q. Police tell you, you have a right to remain silent?

A. I can't recall."

The onus is on the State to prove beyond reasonable doubt that the alleged confessional statement taken from the accused on the 27th of July, 1993 was made voluntarily. Whether the accused made those statements in the exercise of a free choice to speak or remain silent. A statement of the principles is set out in the case of McDermott v R (1984) 76 CLR 501, 511 (quoted at p 222 Criminal Law and Practice of Papua New Guinea):

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

Evidence was led by the State to show that the accused was born in the Manus Province. He was brought up at Bulolo Morobe Province. He was educated to Grade 7. I consider this evidence relevant in assessing the accused's claim that he did not understand the caution. The accused says he is now 27 years old. He would have been 24 years old in 1993.

On the evidence before me I am satisfied that the accused's background and education level enabled him to understand the form of caution administered to him by Sergeant Mingnaut. Even if no caution was given to the accused or the form of caution was not sufficient the confessional statement is not in admissible for that reason alone. The warning or caution need not follow a prescribed form but sufficient for the accused to understand is right to remain silent. The Court must consider "the surrounding circumstances to ascertain whether an accused person spoke because of some importuning or threat or whether it was because he chose to do so. The exercise of that choice is a fact to be determined by the trial judge on the materials before him: "State v Kwambol Embogol (1977) N No. 91, a ruling on a voir dire by His Honour O'Meally, AJ. No suggestion of impropriety is made against Sergeant Mingnaut or Senior Constable Richard Sibolo. But it is agreed that Sergeant Mingnaut did fail to administer the provisions of s 42 of the Constitution, that he failed to inform the accused of his rights.

Sergeant Mingnaut was attached to the Serious Crimes Squad at the Madang Police Station. He had an obligation to carry out the investigation into alleged escapes by the accused. I find no evidence of any threats or assaults by him on the accused. He was questioning the accused in relation to allegations of escapes not about this matter. Can the Court exercise its discretion against that failure on the part of the witness? Is there anything improper or unfair about the Sergeant's manner of approach to the accused that day. On the question of what is "unfair" I refer to what His Honour O'Meally AJ said in the State v Kwambol Embogol (Supra) at p 3 of his judgement:

"What is unfair will need to be determined by the circumstances of each case together with a consideration of factors such as the age, education, sophistication, intelligence and background of the accused."

Considering the circumstances of this case I cannot see anything unfair or improper about the handling of this matter by Sergeant Mingnaut on the 27th July, 1993. He gave an explanation for the course he took. He had wanted it to be simple. He did not wish to go back and do a translation at a later date. I can see the reason here. He was questioning the accused in relation to allegations of escapes and not this murder. I accept his explanation.

I find that:

(a) The caution written in the Pidgin language was administered sufficiently in that language;

(b) the accused understood the caution; and

(c) there was nothing improper or unfair about the statement being recorded directly in the English language.

On all the evidence before me I find that the State has proved beyond reasonable doubt that the alleged confessional statement taken by Sergeant Mingnaut on the 27th of July, 1993 was made voluntarily. Further, I find that the accused has failed to satisfy me why I should exercise the Court's discretion in his favour to exclude the Statement.

I order that Jeffery Harold Malepo's statement be admitted in the trial as evidence against him.

Rule accordingly.

_______________

Lawyer for the State: Public Prosecutor.
Lawyer for the Accused: B T Gobu & Associates Lawyers