State v Mesak [2005] PGNC 99; N2853 (26 April 2005)

N2853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1563 of 1995

THE STATE

v.

JOANES MESAK

Kimbe : Sevua, J

2005. : 16th March

& 26th April

CRIMINAL LAW – Admissibility – Confessions/admissions – Record of interview – Voir dire – Onus and standard of proof – Whether admissions voluntary – Particulars of allegations of assault not fully set out in notice of objection – Defence failure to put allegations to prosecution witnesses in cross examination – Defence cross examination on allegations of assault not stated in notice of objection - Whether accused should be permitted to adduce such evidence – Rule in Browne v. Dunn.

EVIDENCE – Admissions – Discretion to exclude – Unfairness to accused – Judicial discretion based on Constitution – Fairness and impropriety of police investigators relevant – Record of interview – Taken forty seven days after detention and without a charge and without being brought to Court – Whether circumstances amounted to unfairness or impropriety.

CONSTITUTIONAL LAW – Constitutional rights - Right to full protection of the law – Right to be promptly informed of reason for arrest and detention – Right to communicate with family member, friend or lawyer – Right to give instructions to lawyer – Right to be brought to Court without delay. Constitution, Sections 37 (1), 42 (2), (3) and (4).

DISCRETION – Admissibility - Record of interview - Rejected in the exercise of judicial discretion on ground of impropriety.

Held:

(1) It is trite law that the defence must put its case to the prosecution witnesses during cross examination in accordance with the rule in Browne v. Dunn (1883) 6 R 67 (HL) so that the prosecution is given the opportunity to refute it or offer an explanation.

(2) Where the accused was detained in the cell for forty six days without being charged and without being informed of reason for detention and without being brought before a Court, and then, on the forty seventh day interviewed and formally arrested and charged, the combined effects of ss. 37 (1) and 42 (2), (3) and (4) Constitution make the circumstances of constitutional breaches serious and improper.

(3) In the exercise of judicial discretion, the record of interview is rejected.

Cases cited in judgment:
Browne v Dunn (1883) 6 R 67 (HL)
State v. Simon Tanuma unreported, N1872, 4th June 1999
The State v Allan Woila [1978] PNGLR 99
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Simon Ganga [1994] PNGLR 323
Reference No 1 of 1977 [1977] PNGLR 362
The State v. Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138
The State v. Mana Turi [1986] PNGLR 221

Mr. Popeu for State
Mr. Inua for Accused

26th March 2005

SEVUA, J: The accused, Joanes Mesak of Angelep village, Kandrian, is charged with armed robbery contrary to s. 396 (1) and (2) (a) & (b) of the Criminal Code Act. He pleaded not guilty to the charge.

In the course of the prosecution’s case on 16th March 2005 when the prosecuting counsel sought to tender a record of interview, the accused, through his counsel, raised objection to the tendering of the record of interview on the basis that admissions made were not obtained voluntarily as the accused’s will was overborne. The Court then conducted a voir dire, which is like a mini trial within the main trial if one needs to describe it that way, perhaps for the benefit of the accused.

Particulars of the allegations of impropriety against police are set out in the accused’s Notice of Objection filed on 10th Match 2005, and I set them out here because of its significance to the defence case.

............the accused was severely beaten by police officers during his apprehension on the 09th June 1995 (sic). In the process, two wounds were inflicted in him (sic); one on his right hand by a knife, and the other on his right calf muscle. Then, almost 46 days later on 26th July 1997, (sic) (amended to 1995 with leave) during the conduct of the Record of Interview, he was threatened by the use of the words; "Yu totktok, yu save wanem samting bai mi wokim", or words to this effect, simultaneously loading a pistol and showing it to him and placing it on the table before him, by the Interviewing Officer, one Constable Willie Wirenu. Further, he was subjected to more than 40 days incarceration without being brought before a Court.

All these acts rendered the accused (sic) mind to be ‘overborne’, which is contrary to S. 28 of the Evidence Act, Ch 48 and Constitution, S. 42. Secondly, his incarceration for more than 40 days without being brought before a Court, is unconstitutional, and breaches S. 42 (3) (b) Constitution.

The State adduced evidence from two witnesses; Sgt. Willie Wirenu and Nick Roape. Wirenu was the investigating officer who arrested and charged the accused. At the time of the arrest, he was a Constable of Police attached to Traffic in Kimbe, but has since been transferred to Lae. Nick Roape has since left the Constabulary. However, at the material time, he was a Constable of Police attached to Kimbe Police Station Traffic Section.

The evidence adduced from both the prosecution and defence in the voir dire, which I accept is quite simple and brief. A complaint was received from the victim of the armed robbery, Andrew Tiong, Camp Manager of Ribunan Hijau Logging site at Kandrian. Sgt. Wirenu was assigned to head a team of policemen to go to Kandrian to investigate the complaint. He was assisted by four members of a Mobile Squad in Kimbe. When the team arrived at Kandrian, it was met by the victim who briefed the team on what had been done to him. With the assistance of another local employee from Kandrian, Michael Kabon, the policemen set out to the villages near the logging camp led by Michael Kabon. He led them to different locations where the police picked up the suspects and some cash and home made guns. This accused had K69.00 in his possession whilst another suspect had the sum of K1, 100.00 and one other had K1, 000.00.

Police also recovered four home made guns, one from this accused at his village and three others from two other suspects.

One of the suspects was John ToPaep, the son of a policeman based at Kimbe. He had two home made guns with him and two bags of coins amounting to more than K2, 000.00. He was the one who led the policemen to this accused’s village where he was subsequently picked up by the police team. It is undisputed that the accused’s identity and location were readily supplied by John ToPaep, a member of the gang allegedly involved in this crime.

Both prosecution witnesses denied any knowledge of assault, threats and impropriety committed upon the person of the accused. In fact, the wounds alleged to have been inflicted on the accused, which are alleged in the notice of objection were not said to have been inflicted by any named policeman, let alone the arresting officer. However, in the defence case, which I will be shortly discussing, the accused said that the wounds were inflicted by Sgt. Wirenu and I will refer to the Court’s ruling on that piece of the evidence later. In essence that is the case for the prosecution in the voir dire.

However at this juncture, the Court observes that the notice of objection did not contain detail allegations against any particular police officer including Sgt. Wirenu. The accused and his counsel had failed to clearly identify by name, the police officer who is alleged to have assaulted the accused, the place of such assault and the nature of injury if any, inflicted by that particular police officer. The Court considers this crucial because of the rule in Browne v. Dunn (1883) 6 R 67 (HL), which will be discussed later in this judgment. I consider that they cannot be entitled to the protection of the Court in running a voir dire, because particulars of allegations they rely on have not been specific. It is trite law that one must put forth his case to the other side in cross examination so that the other side is given the opportunity to refute any allegation or offer an explanation. We do not conduct, nor do we allow trial by ambush. That is a rule of fair play.

The accused said he was arrested by police on 9th June 1995 in his village as a suspect in an armed robbery case and then taken to the Ribunan Hijau Logging Camp Site, but he did not know why he was taken there. At the camp, the policemen started to assault him with timber and chains. He named the investigating officer, Willie Wirenu as the policeman who pulled out a pocket knife and cut his right arm with it. The accused said Wirenu also pushed heated metal on his right leg.

At this stage, the Court became concerned that the evidence being adduced then was unfair to the State because they were not put to Sgt. Wirenu in cross examination nor were the allegations of such brutality particularized in the notice of objection. The Court at that stage then raised the principle in Browne v. Dunn (1893) 6 R 67 (HL) and disallowed the evidence for the above reasons. Whilst the State would have had the right to recall Sgt. Wirenu so that these allegations could be put to him, the Court considered it unfair because the same allegations were never particularized in the notice of objection. I will revert to this issue later in the judgment. The rule in Browne v. Dunn (supra) was relevant to this situation.

The accused continued with his evidence and said he was interviewed by police on 26th July 1995, which would have been 47 days from being taken in from Kandrian. The interview was conducted by Sgt. Wirenu who got the accused into the Traffic Office at Kimbe Police Station and told him to sit on a chair. Wirenu then took out a revolver, from where, the accused did not say, and he also took out a bullet from his pocket and inserted it into the bullet chamber and told the accused, "Yu save wanem samting bai yu toktok go ahead na ko-oporeit wantem me long intaviu", which can be translated as, "you know what to say so you cooperate with me in this interview".

One important consideration I make here is that what the accused said on oath is not the same as what is stated in his notice of objection. In the notice, the threat allegedly issued by Wirenu was: "Yu toktok, yu save wanem samting bai mi wokim".

Other important considerations I make from the accused’s sworn testimony are these. He makes no mention of the presence or non - presence of the corroborator, Nick Roape. He did not mention that he had asked Sgt. Wirenu to take him to the hospital until the Court asked if he did, and then he further alleged that Sgt. Wirenu told him to remain and die in the cell. In the notice of objection, the accused and his counsel alleged that the accused was kept in the cell f more than forty six days before being interviewed and his evidence supports that. The notice of objection also stated that the interrogating officer had loaded the pistol and then put it on the table, but the accused did not give that evidence in his sworn testimony. He gave the impression that Sgt. Wirenu held the revolver in his hand after loading the bullet so that he (accused) was being threatened by that.

Mr. Inua, counsel for the accused, submitted that the circumstances of this case amounted to one where the accused’s will was overborne because he was afraid. Counsel referred to the The State v. Simon Tanuma, unreported, N 1872,4th June 1999 especially what the Court said on page 3 of the judgment and submitted that based on that case the accused’s mind was overborne before and during the record of interview, so much so that he made admissions in the record of interview. Therefore, Mr. Inua further submitted that the record of interview should not be tendered into evidence.

I think there is a fundamental misconception here by counsel. So let me clarify that for his benefit and perhaps also for the benefit of young and inexperienced lawyers running a voir dire in criminal trials.

I think it is true to say that many young criminal lawyers including some experienced lawyers are still making the same mistake these days in running voir dire trials. It is not correct in law to say that an objection made in relation to the tender of the record of interview by the prosecuting counsel is taken on the actual tendering of a Record of Interview (ROI) per se, and sometimes, a confessional statement. The objection is not to the tender of the document, but on the admissibility of confessions contained in the ROI or confessional statement. Such documents would usually contain confessions or admissions by accuseds, which the Court has not yet had the opportunity of seeing or reading as the document has not yet become part of the evidence in the State’s case.

Therefore, when a defence counsel objects to the tender of the document, he is actually raising an issue of law, which is the admissibility of such document into evidence, to support the State’s case in securing a conviction. It is not so much opposing the tender of the document per se, but objecting to the Court formally admitting into evidence the document containing the confessions or admissions. Therefore what defence counsel ought to say is, I object to the admissibility of the record of interview or the confessional statement, which ever document that is being sought to be tendered. Counsel should not say, I object to the tender of the record of interview or confessional statement because that is not strictly correct and is misleading as well.

Having made that clarification for the benefit of the defence counsel in this case, and perhaps for the young lawyers at large, let me briefly canvass the submissions by Mr. Popeu, counsel for the State. He submitted that the State relies on the evidence of both the Investigating Officer and the Corroborating Officer. Counsel submitted that during the record of interview, Sgt Wirenu did not threaten the accused, he was not armed with a pistol or any other firearm and did not load a bullet into the pistol as alleged by the accused. That evidence, Mr. Popeu submitted, is supported by that of the corroborating officer who was present during the record of interview and did not see a pistol being loaded with a bullet by Sgt. Wirenu and also that he did not hear any threat being issued by Sgt. Wirenu. Counsel further submitted that the issue here is who the Court should believe.

The law on onus of proof in voir dire trials is clear. In The State v. Allan Woila [1978] PNGLR 99, the Court held:

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.

Again 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 of 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.

What should be appreciated is that at the time those decisions were made, the Criminal Practice Rules had not yet been promulgated, therefore the requirement to provide notices of objection and give particulars of allegations of impropriety leading to the confessions being extracted from an accused as opposed to voluntary admissions had not yet arisen. However, the rule in Browne v. Dunn (supra) had existed long before those cases and there is no excuse for a lawyer not to be aware of the requirement involved in the principle enunciated in that case which has received approval in our jurisdiction by virtue of Schedule 2.2 Constitution.

In respect of the evidence in this voir dire, I agree with the prosecuting counsel that it is who the Court believes although the State has the onus to prove that the confessions made by the accused were made voluntarily. It is a matter of witness’ credibility and demeanour. Unfortunately, there are convincing reasons that the Court is unable to believe the accused. Some of these reasons have been adverted to in the observations the Court has already made and which I need not repeat here. But the most important consideration here, in my view, is that if the notice of objection was drawn up from instructions from the accused then his evidence on oath which the Court had directed to be struck off from the record was recent invention even though those are not in evidence. It is necessary to ask why he didn’t give full or detailed instructions to his lawyer as to exactly what had happened to him and who, or which policeman, had caused what kind of injury to him. These are the matters that should have been stated in his notice so that the State is given the opportunity to call rebuttal evidence and refute the evidence or offer any explanation. As I alluded to, that is the reason some of the accused’s evidence were struck off the record.

To that extent it is relevant to refer to the rule in Browne v. Dunne (supra).

Without specifically citing all the cases in PNG, Australia and England on the relevant principle enunciated by the House of Lords in that case, it suffices to say only that if the accused had desired to impeach the evidence of Sgt. Wirenu on the allegations of assault, full or all the particulars of the assault made against the sergeant should have been stated in the notice of objection so that the witness could answer those allegations and be cross examined on them. I think that is the essence of that rule.

It is trite law that a party must put its case to the opposing party in cross examination in accordance with the rule in Browne v. Dunn so that the prosecution, in this case, is given the opportunity to refute it or offer an explanation. It is not proper for the accused to keep his case a secret until it presents it then adduces the evidence he had failed to put to the prosecution in cross examination. The rule was extensively reviewed by the Court in The State v. Simon Ganga [1994] PNGLR 323 and it is not necessary to refer to all the cases cited therein and what the Courts said in those cases. However it is advisable to say that all lawyers not familiar with this rule must read and re-read those cases so that they are familiar with the rule and they know what is expected of them in the conduct of a voir dire.

In any event, I do not believe the accused because his demeanour in the witness box did not impress me at all. Here is a man suspected of having taken part in an armed robbery at a logging camp near his village and who was identified by another co-suspect, who had a substantial amount of cash and two home made guns and who led the police to the accused at his village where the police recovered a home made gun and a small amount of cash and he has failed to explain the existence of the cash and the gun in his possession. Instead, he has made very serious allegations of impropriety against the investigating officer, but has not given the opportunity to the investigating officer to rebut some of those allegations because particulars of those allegations have not been given to the State, let alone the Court. In my view, that is not the action, nor the attitude, of a honest man fighting his innocence.

The Court therefore finds that the accused was not a truthful witness and his evidence in relation to police brutality and assault is therefore rejected as having no credibility that the Court ought not to give any credence to. On the contrary, the Court finds that Sgt. Willie Wirenu and Nick Roape are witnesses of truth and accepts their evidence. I find that no assault as alleged by the accused was committed upon the person of the accused by Sgt. Wirenu at the Traffic Office at Kimbe Police Station on 9th June 1995. Furthermore, I do not believe that he was knifed, belted with a chain and burnt with hot metal at Kandrian.

Having said all these, I find that the accused was not assaulted or threatened either at Kandrian at the time he was picked up by police or at Kimbe Police Station during the time of the interview. I do not believe that the allegations of assault he made against Sgt Wirenu are true. The Court therefore rejects the accused’s evidence of assault as concoction and fabrication. The Court will not reject the reception of the record of interview on the basis of involuntariness alone.

However, in his notice of objection, the accused had raised a constitutional issue, namely, breach of s. 42 (3) (b) in that he alleged that he had been incarcerated for more than 40 days without being brought before a Court. Although he did not pursue this issue, it is in his notice and the Court has taken note of it and as it is a constitutional issue, the Court just cannot ignore it or brush it aside and pretend it was not raised. The Court does not understand why counsel for the accused did not pursue it, but he had not told the Court either that the accused had abandoned the issue. The accused should have also raised s 42 (2), and (4) and s 37 (1). In any event, the evidence of the accused supports this alleged breach of constitutional rights, which the State did not deny or refute. It has not adduced any evidence to refute the evidence of the accused on this issue. So I accept the accused’s evidence of the breach of his constitutional rights.

Briefly again, the accused was picked up by police at Kandrian on 9th June 1995 and brought to Kimbe on the same day where he was locked up in the cell at Kimbe Police Station without being charged with armed robbery or any other offence. He was not told the reason for his detention. He was not brought before a Court therefore was not formally remanded by a statutory warrant of remand. He was not informed of his rights to talk to a lawyer or a member of his family or a friend. He was not interviewed until 26th July 1995, forty seven days after he was detained in the cell, when his rights under the Constitution were administered according to the evidence of the two State witnesses even though they could not remember the date of the interview when the accused, an illiterate villager, could remember the date of the interview.

Mr. Inua has referred the Court to Simon Tanuma (supra) and quoted some parts of the judgment at page 3, which relates to the mind of the accused being overborne and therefore submitted that the record of interview should not be admitted into evidence because the accused’s will in the present case was overborne. There are two reported cases in that judgment which I prefer to refer to. The State v. Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138 and The State v. Mana Turi [1986] PNGLR 221. But at this juncture, it is important to highlight one aspect common in all three cases and that is, the accused in each of those cases had been detained without being charged and confessional statements had been obtained from them prior to them being interviewed and further admissions obtained in their records of interview. Thus, the facts in those cases are different.

However, I would like to refer to the second case because I consider it relevant to the present case and it is on the basis of the principles the Court established in that case that the final outcome of the issue of admissibility of the record of interview in the present case will be determined.

In relation to the issue of objection to the admissibility of the record of interview, the Court held in Mana Turi (supra) inter alia that:

In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness, regard should be had to any breach of the rights given by the Constitution, s 37 (1), (the full protection of the law) and s 42 (2), (3) and (4) (the rights of persons arrested or detained) judged according to the degree of seriousness or impropriety involved.

Whilst the Court acknowledges that the Supreme Court in Reference No 1 of 1977 [1977] PNFLR 362 said that:

Failure to comply with all or any provision of s. 42 (2) does not for that reason alone render later admissions inadmissible in evidence at the accused’s trial.

the Supreme Court also said held:

But the National Court under s. 57 (1) of the Constitution, in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of s. 42 (2) of the Constitution should be excluded from evidence in the trial.

If in a particular case it appears that there has been a breach of s. 42 (2) then this is a matter for the trial judge to take into account together with all the circumstances of the case when exercising his discretion whether or not to admit evidence obtained following the breach.

From all the evidence in the voir dire, I find that the accused had been detained in the cell at Kimbe Police Station since 9th June 1995 until he was interviewed on 26th July 1995. In that period, the accused was never informed of any charge against him until 26th July 1995 when he was formally arrested and charged. I also find that during the period of detention, the accused was not informed of his rights to talk to a member of his family, a friend or a lawyer. I further find that the accused’s right was further breached when he was not brought before a Court immediately. I have considered the combined effects of ss. 37 (1), and 42 (2) (3) and (4) of the Constitution and it is my opinion that there had been serious breaches of the Constitution in the present case, the circumstances of which amounted to impropriety.

Accordingly, I am satisfied that there had been breaches of s. 37 (1) of the Constitution (the right to full protection of the law), and s. 42 (2), (3) and (4) the rights of persons arrested or detained. I therefore consider that the forty six days detention without being advised of his rights to a lawyer, without being brought to Court, without a charge or judicial remand and his interview on the forty seventh day of detention amount to serious breaches of the Constitution and impropriety that warrants the exercise of the Court’s discretion in favour of the accused. In the words of the Supreme Court, this Court has power to make the appropriate order or declaration in respect of the breach of s. 42 (2).

I am of the opinion that the combined effects of the breaches alluded to amount to circumstances which the Court can give effect to the principles of constitutional law pronounced by the Supreme Court in Reference No 1 of 1977 (supra). In the exercise of its judicial discretion therefore the Court will reject the reception of the record of interview into evidence. The principles set out in Turi’s case are also adopted and applied in the present case.

Ruled accordingly.

Addendum: After this ruling State closed its case and defence submitted a no case to answer, which was upheld and the accused was acquitted and discharged.

Lawyer for State : Public Prosecutor
Counsel : Francis Popeu
Lawyer for Accused : Paul Paraka Lawyers
Counsel : Riben Inua