State v Walimini (No 1) [2004] PGNC 154; N2621 (17 June 2004)

N2621

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1374 of 1999
CR 1375 of 1999
&
CR 1389 of 1999

THE STATE

v.

RAPHAEL WALIMINI

Kimbe: Sevua, J
2004: 10th, 11th & 17th June

CRIMINAL LAW – Armed robbery – Evidence – Confessions – Admissibility – Objections to – Voluntariness contested on voir dire – Standard of proof

Cases cited:
The State v. Allan Woila [1978] PNGLR 99
The State v. Kusap Kei Kuya [1983] PNGLR 263

Counsel:
F. Popeu
O. Oiveka

17th June 2004

SEVUA, J: This is a trial on indictment in which the accused is charged with one count of attempted armed robbery, one count of armed robbery and one count of unlawful use of motor vehicle.

In the course of the prosecution seeking to tender a confessional statement and the record of interview, the accused raised objections to the tender of these documents on the grounds that the admissions in both documents were obtained under duress after the accused was assaulted by policemen and threats of violence issued to him. The Court should clarify that the objection is not an objection to the tender of the documents as such, but objection to the admissibility of such evidence on the basis of voluntariness.

The accused had filed two notices of objection, firstly on 5th April 2004, and again on 8th June 2004, two days prior to the trial. In the first notice, the accused in a general way, alleged that he was assaulted by policemen in the CID Office prior to the conduct of the interview by the arresting officer, and as a result he suffered pains in his jaws and therefore made confessions in the record of interview under duress. It must be noted that no specific policeman was named in this notice and the nature and details of any injury were not stated. These were allegations of a general nature.

In the second notice filed two days prior to trial, the accused alleged brutality and impropriety against the two prosecution witnesses and also a policeman named as Samson Fanaso, and others he did not named but who were masked. They blindfolded him then assaulted him. They used pocket knives to pierce him all over his body including his backside. He was blindfolded and taken to Buvussi Mountain where he was subjected to further assaults and his body further pierced with pocket knives and forced to confess to the crimes. The blindfold was later removed from his face and he was able to see a bullet being loaded into a shotgun and he was threatened to confess, and as a result of these assaults and threats, he made confessions.

In relation to the Notice of Objection filed on 8th June 2004, the State objected to the defence relying on it because counsel, Mr. Popeu submitted the State was prejudiced because one of the policeman named in the notice, Samson Fanaso was attending a course at Bomana Police College and therefore not available to rebut any evidence against him.

The Court accordingly refused leave to the accused to rely on that notice on the ground that it was unfair to the State because one of the named policemen was unavailable and was unable to defend himself from allegations of assault by him. Besides, the Court was of the view that the accused had had more than ample time to raise these matters adequately in his notice filed on 5th April 2004. That is the subject of another ruling. However, the accused was directed that he could rely on the grounds of objection filed on 5th April 2004.

Following the refusal of leave, the accused made another application for an adjournment so that his notice filed on 8th June would give sufficient time to the State. The Court was asked to adjourned to the next sittings and return to deal with this case. That application was refused and the trial ordered to continue.

In view of the course this trial had taken, a voir dire was then conducted. The prosecution’s evidence came from the Investigating Officer, Detective Constable Mike Phillip, and the Corroborator, Detective Constable Willie Clemus.

The two detectives, Micky Phillip and Willie Clemus denied all the allegations of assault and threats made by the accused. They said they did not assault or threaten the accused, and that no other policeman assault or threaten him. They said the confessions were made voluntarily and willingly by the accused.

On the other hand, the accused who also testified on oath said that he was apprehended on 11th October 1998 and was badly beaten up that he almost died. On 12th October 1998, he was removed from the cell to the CID Office by Constable Micky Phillip and Samson Fanaso who bashed him in the office. On 21st October, at the time of the record of interview, he was severely beaten by policemen. He was hit with gun butts and whipped with a hose. His knees became weak and his mouth swollen. Because of these assaults he lied that he committed the offences, but his admissions were not true. One observation is that if he lied to the police, what guarantee is there he is not lying to this Court.

Having observed the demeanour of each witness on oath, I do not believe the accused. He appeared quite arrogant and aggressive in his evidence. He gave no specific instance of assaults and no particulars of injuries he sustained. If I accept that he was badly beaten up with gun butts and rubber hoses, the accused would have shown scars or wounds of the injuries he sustained as a result of these beatings. He has not shown any scars or wounds of any injury he suffered at the hands of the police. He has not described in any detail what each policeman did to him and the nature of injury he sustained from the assault occasioned by each policeman.

With respect, the evidence by the accused was very general in nature. The generalized manner in which the accused made these allegations against the policemen is such that his evidence is not credible. I was expecting the accused to demonstrate if he could, how he was assaulted and on which part of his body. I was also expecting him to show any scars or wounds. He did neither, and I do not believe that he was telling the truth. It appears obvious that the accused bears some personal grudges against police, judging from the aggressive attitude he displayed during his testimony. I do not believe him and I reject his evidence.

On the other hand, the two policemen gave evidence on oath in the usual forthright manner without trying to over express themselves or attempting to over emphasise any part of their evidence. They appeared calm and repose, and there is no reason the Court should disbelieve them. I accept their evidence that they did not assault the accused or threaten him as the truth.

The standard of proof in determining whether a confession was made voluntarily is proof beyond reasonable doubt and the prosecution bears that onus. That is, the prosecution needs to prove beyond reasonable doubt that the accused made the confessions or admissions voluntarily. In The State v. Allan Woila [1978] PNGLR 99 the Court held that:

"in determining whether a confessional statement was made voluntarily, the standard of proof to be applied by the trial judge is that of proof beyond reasonable doubt."

In a subsequent case, The State v. Kusap Kei Kuya [1983] PNGLR 263; the Court said:

"On a voir dire to determine the voluntariness of confessional material sought to be used in criminal proceedings the prosecution bears the onus pf proving "voluntariness" and to that end should produce full and proper evidence which will cover any ground of attack of which the prosecution has been apprised."

Having observed the witnesses and considered all the evidence, I am satisfied that the State has proven beyond reasonable doubt that the confessions made by the accused in both the confessional statement and the record of interview were made voluntarily. The documents shall therefore be admitted and marked as exhibits, subject to clarification by the State as to the number of documents.

Lawyer for State : Public Prosecutor
Lawyer for Accused : Public Solicitor