State v Balana [2007] PGNC 12; CR 522 of 2003 (21 March 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 552 of 2003

STATE

v

MICHAEL BALANA

Kokopo: Lay J
2007: 13, 14 & 21 March

CRIMINAL LAW– voir dire --- confessional statement - record of interview - Judges Rules - Constitution s.42(2) - Evidence Act s.28.

Facts

The accused was arrested in the early hours of the morning of 4 December 2002 and bashed by police until he mentioned names of persons in answer to their demand to know "who he was with". On the afternoon of that day a "confessional statement" was taken. The first question was asked without administering the judges rules caution. No Constitution Section 42 (2) caution was administered. It appeared that the accused did not understand the judges rules caution he was given concerning his right to remain silent. The confessional statement was followed 10 minutes later by a record of interview, which was suspended for two months when the accused asked to see his sister. During the two months the accused was unlawfully held at Kerevat CIS without charge. On resumption of the interview on 3 February 2003, there was no evidence that the police made any effort to obtain a visit from the accused’s sister. The judges’ rules warning on the right to remain silent was repeated but the Constitution Section 42 (2) caution was not repeated. The confessional statement was read to the accused when he gave answers inconsistent with its contents.

Held

1. The accused was entitled to a Constitution section 42(2) caution immediately on being brought to the police station;
2. The accused was entitled to real efforts from the police to obtain a visit from his sister and there was no evidence this had been done;
3. The court could not be satisfied that the confessional statement was not induced by the bashing the accused received that morning and consequently the confessional statement was inadmissible pursuant to Evidence Act Section 28;
4. A break of two months in the middle of the record of interview was too long to regard the two parts of the interview as one event. On resumption of the interview the accused should have been advised again of his Constitution s.42 (2) rights.
5. The circumstances of the record of interview were grossly unfair to the accused;
6. The practice of taking a confessional statement followed by a record of interview is improper and should be discouraged.
7. Pursuant to Constitution Section 57 question and answer 25 to the end of the record of interview will not be admitted into evidence.
   

PNG Cases Cited
R v Wendo [1963] PNGLR 242
The State v Kiki Hapea [1985] PNGLR 6
R v Sira Kuras [1964] PNGLR 18
R v Fari Pako (1962) No. 259
R v Emanuel Patrick-Domara (1953) No. 43
The State v Joseph Maino [1977] PNGLR 216
R v Gelu-Gaua (1962) No. 256
The State v. August Toiamia. (Is 1978) N 145
R v Amo and Amuna [1963] PNGLR 22
R v Wendo [1963] PNGLR 217
State v Peter Moripi and Gaela Wagisa [1987] PNGLR 356
R. v ToVarula [1973] PNGLR 140
Uda Liki Garika v The State [1983] PNGLR 58
Constitutional Reference No.1 of 1977; [1977] PNGLR 362
State v Songe Mai & Gai Avi [1988-89] PNGLR 56
The State v Paro Wampa [1987] PNGLR 120
The State v John Joga Ivoro (1989) N772
R v Kar Moro [1975] PNGLR 14
The State v Anton A mes Turik and Wickie Jack Peltham [1986] PNGLR 138
The State v Mana Turi [1986] PNGLR 221

References
Arrest Act
Constitution
Evidence Act

Counsel
S. Luben, for the State
L. Siminji, for the Accused

Ruling on Voir Dire

21 March, 2007

1. LAY J: The accused has entered a plea of not guilty to one count of armed robbery contrary to section 386 of the Criminal Code.

2. The State case, as contained in the brief facts on arraignment, is that on the 26 November, 2002 in the evening between 6 p.m. and 7:30 p.m. the accused was at Toma, Kokopo District. He and some accomplices went into the yard at Lito Farina's house and waited for him to bring the day's takings from Ngatia Enterprises Bakery. When Mr Farina arrived he was held up with a spear and bush knives and a money bag containing K1760, the property of Ngatia Enterprises, was stolen.

3. The State called First Constable Wapinan who gave evidence that he corroborated the taking of a confessional statement and then took a record of interview with the accused. The confessional statement is dated 4 November 2002 which the witness said is a slip, it was actually taken on the 4 December 2002.

4. In cross-examination the witness denied that the accused was arrested in the early hours of the morning of 4 December 2002, badly bashed by policemen and interviewed that day while being shown a piece of timber in the office. The witness maintained that the accused was arrested on the weekend by others and interviewed by him on Monday 4 December 2002 and showed no signs of being bashed. The record of interview commenced at 2:45 p.m. and it was suspended at 3:07 p.m. to enable the accused to speak with his sister but she did not come to the police station and the accused was taken up to CIS Kerevat without charge. He was not brought back again to Kokopo Police Station until 3 February 2003, when the record of interview recommenced and was concluded on that day.

5. The State sought to have the confessional statement and record of interview tendered into evidence but counsel for the accused objected on the basis of a notice of voir dire served on the morning of commencement of the trial. The notice of voir dire raises issues of involuntariness and breach of section 42 of the Constitution. The State applied to have the objection raised on the voir dire overruled on the basis that the notice had not been served sufficiently before the trial to enable the State to investigate the allegations in the notice and to call the appropriate witnesses. Counsel for the accused explained that he was hampered by the fact that the co-accused were on bail and not contactable. It was only possible to draw the notice when it became apparent that the accused’s trial would proceed without the co-accused. I ruled extempore that the objection in the notice could be tested by voir dire but that the State would have an adjournment to obtain any additional witnesses required. It being approximately 2:30 p.m. at the conclusion of Constable Wapinan's evidence, an adjournment was granted on application of the State to 9:30 a.m. the following day.

6. The State called Sergeant Yagiri. He denied any threats or inducements were offered to the accused during the taking of the confessional statement and the record of interview. Specifically he denied pointing to a plank of wood when urging the accused to "tell the truth". It was put to him that the accused was bashed up when he was arrested in the early hours of the morning of 4 December 2002 to which the sergeant replied that he would not know because he was not there, not being a member of the arresting party.

7. The accused gave evidence that he was arrested in the early hours of the morning at his village by the Baliora police unit, taken to the police vehicle, had his hands tied behind his back and was then bashed and asked who he was with during the robbery. When he randomly called out some names police stopped bashing him but he felt pain. The police then arrested the others named by the accused. They were driven to a local shop where their hands were untied and they were instructed to fight with each other. He was then taken to the police station and interviewed twice later that day. He was then taken to Kerevat CIS stayed for some time and then was brought back down to Kokopo police station when the interview was completed.

8. Counsel for the accused submits that the confession was not voluntary and should not be admitted. The record of interview was obtained in breach of the Constitution and in a most unfair way to the accused and should also not be admitted. Counsel for the State has submitted that both the confessional statement and record of interview were properly obtained because the accused was not threatened or forced into making admissions during his interviews with Sergeant Yagiri and Constable Wapinan. Both counsel cite McDermott v King (1948) 76 CLR 501.

The Law

9. The court must be satisfied that a confession which is tendered in evidence has been made voluntarily because the Evidence Act section 28 provides:

"A confession that is tendered in evidence in any criminal proceeding shall 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."

and also because:

"... the common law is also in force...and under that law whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or to remain silent, it must be shown to have been so made before it can be entered into evidence against him.":R v Wendo [1963] PNGLR 242 to 245 per Dixon CJ and Tailor and Owen JJ.

10. And that the statement was made voluntarily will not necessarily be established by the recitation of a formula of words because:

"it is an essential condition of voluntariness of a confession that the accused person should really understand that he is under no compulsion to speak, that he is free to speak or not to speak.": See R v Sira Kuras [1964] PNGLR 18 at 19 Smithers J.

12. The accused must understand their position even when it requires the interviewer to use additional words to those set out in his instruction manual and where a doubt remains, to get the accused to express in their own words their understanding of the right to remain silent: See R v Fari Pako (1962) No. 259, R v Emanuel Patrick-Domara (1953) No. 43, The State v Joseph Maino [1977] PNGLR 216 and R v Gelu-Gaua (1962) No. 256.

13. The general onus is still upon the State to prove voluntariness: R v. Fari Pako (1962) No.259, R v Amo and Amuna [1963] PNGLR 22 at 23 and R v Wendo [1963] PNGLR 217 at 218.

14. As the tribunal of fact I must decide what I believe from the conflicting accounts the evidence presents. I may read the confessional statement to assist me in considering credibility: R. v ToVarula [1973] PNGLR 140 per Minogue CJ,, but the best practice is to hear the evidence from both sides and then decide whether a reading of the statement would assist: Uda Liki Garika v The State [1983] PNGLR 58.

Constitution section 42 (2) to (4) provides:

"(2) a person who is arrested or detained-

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest of his rights under this subsection.

(3) a person who is arrested or detained-

(a) for the purpose of being brought before a court in the execution of an order of the court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph

(c), shall not be further held in custody in connection with the offence except by order of a court or judicial officer.

(4) the necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.

15. Section 42(2)(a) to (c) of the Constitution is reproduced in the Arrest Act at Section 18 (1) (c) as rights for the arrested or detained person which the officer in charge of the police station has the duty to inform the person of promptly in a language they understand. Then at Section 18 (2) those same rights and duties are given to the officer in charge of the police station and the arrested or detained person to be permitted "at all times".

16. The majority held in the case of State v Songe Mai & Gai Avi [1988-89] PNGLR 56 that detention short of arrest is illegal. The effect of the rights granted by Constitution Section 42 is that "... before any questions are asked about a person's participation in a crime he is to be informed of his rights.": The State v Paro Wampa [1987] PNGLR 120, Kapi DCJ (as he then was). The rights under Constitution s 42 (2) and Arrest Act s 18 become available when a person is detained or arrested. They are not linked to confessional statements or record of interview. Advising the person detained of those rights should not be delayed until a record of interview is taken, unless the record is taken immediately upon the person being brought to the police station.

17. A breach by the police of Constitution Section 42 (2) does not automatically, for that reason alone, exclude a confessional statement as was helped in Constitutional Reference No. 1 of 1977 [1977] PNGLR 365, Frost CJ, Prentice DCJ, Williams J., Kearney J. and Prichard J. The findings in that case are set out succinctly in Criminal Law and Practice of Papua and New Guinea, Chalmers Weisbrot, Injia and Andrew, 3rd edition (1985) at page 659 as follows:

"The Court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion, the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the court . Failure to comply with the provisions of s42(2) of the Constitution, for that reason alone, does not render subsequent admissions by an accused person necessarily inadmissible. However, the court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s57 of the Constitution to exclude the admission. Upon the facts of a case, the court may very well feel bound, as the only way to protect the accused's rights, to reject an admission obtained in consequence of the breach."

18. I have read both the confessional statement and the record of interview in this case because I formed the view that they would assist me in understanding the evidence and counsels submissions.

19. In this case there is unrebutted evidence from the accused that he was bashed when he was arrested and then forced to fight with his co-accused. I have no confidence in the evidence from Constable Wapinan that the accused showed no signs of bashing when interviewed. That is because the Constable's recollection of other events was demonstrably wrong. For example he said that the accused was arrested on a weekend and the interview took place on the following Monday being the 4 December 2002. The 4th December 2002 was a Wednesday as Sgt Yagiri and the accused said. The same day the accused was subjected to the taking of a confessional statement and then 10 minutes later a record of interview.

20. The confessional statement commenced satisfactorily enough with the arresting officer explaining to the accused why he was arrested and why he was at the police station. Then, without cautioning the accused in terms of the judges’ rules and without giving him his caution pursuant to Constitution Section 42 (2) he was asked "what have you got to say to me? ". After providing an incriminating answer the accused was then cautioned in terms of the judges rules right to remain silent. He was then asked "do you understand that?". The accused did not reply to that question, he simply continued the narrative he had been giving before the caution. Again no Constitution Section 42 (2) caution was administered.

21. The taking of the confessional statement ended at 2:35 p.m. At 2:45 p.m. a record of interview commenced. Again it was explained to the accused why he was at the police station. He was given a caution in terms of the judges’ rules. He was advised of his rights pursuant to Constitution section 42 (2). He asked to see his sister.

22. The interview was suspended and not resumed until 3 February, 2003 at 10 a.m. During that time, a period of two months, he was unlawfully held without charge at the Kerevat CIS and deprived of his right to be taken before a court. Up to and including 3 February 2003, the accused had not seen his sister whom he had requested to see on 4 December 2002 after the arresting officers promised to arrange the visit.

23. On resumption of the interview the accused informed the interviewing officer that he had not seen his sister. There is no evidence that the police took any steps to arrange a visit to the accused by his sister. He was asked do you wish the interview to go ahead and he answered "yes". The accused then denied any involvement in the crime until he was shown and had read to him the confessional statement taken on the 4 December 2002.

24. In the case of The State v John Joga Ivoro (1989) N772 Brunton AJ said:

"in most cases the police have formed the view that the person is a suspect before they go to the trouble of setting up a formal record of interview, and have no intention of letting the suspect go free. In those cases the full constitutional caution must be administered first".

25. I consider that this was just such a case, the police had gone to the trouble of having a dawn raid for the specific purpose of arresting the accused and bringing him into custody as a suspect. I am sure they had no intention of letting him go again. In those circumstances the accused was entitled to his full caution in terms of the judges’ rules, by which I mean his right not to say anything, the use to which anything he did say might be put, and the Constitutions 42(2). When he was partially cautioned in accordance with the judges’ rules about his right to remain silent and did not give an answer which indicated that he understood what was said to him, that issue should have been pursued. The interviewing officer should have gone over the issue again using whatever words he could find until he had communicated the meaning and was satisfied that the accused understood.

26. Accepting the unrebutted evidence of the accused that he was bashed up for the purpose of making him talk on arrest in the early hours of the morning, one can fully understand the accused regarding the caution he was given when confronted by two policemen in an interview situation on the same day, as being a mumble of technical words which had no application to him.

27. Sergeant Yagiri whilst giving his evidence seemed to think that the confessional statement was some sort of internal police procedure not subject to the judges’ rules and the Constitution. That is of course not the law.

28. I cannot be satisfied that the confessional statement was not induced by the physical violence which the accused suffered on arrest. I find that the confessional statement was involuntary. And therefore it is not admissible pursuant to the Evidence Act. Even if that were not so, I consider it would be unfair to admit this confessional statement against this unsophisticated young man when he was not advised of his full constitutional rights and gave no indication that he understood the caution which he did receive.

29. Turning to the record of interview commenced on 4 December 2002 and completed on 3 February 2003, I consider it to have been improper to regard the interview on those two days as a single event. Far too much time had elapsed between administration of the caution and the recommencement of the questioning. The advice of Constitution Section 42 (2) rights should have been readministered and the offer to assist in contacting a lawyer or a relative renewed. What actually happened was simply a repeat of the 'right to remain silent' caution.

30. The confessional statement having been taken in unacceptable circumstances, it was then used at question 25 of the record of interview to induce the accused to change the story he was then telling the interviewing officer. When a confession is not admissible, a subsequent confession is equally not admissible unless it can be shown that the circumstances under which the confession was rendered inadmissible have dissipated: R v Kar Moro [1975] PNGLR 14. I cannot be satisfied that the circumstances had dissipated where they were followed by two months of unlawful imprisonment without charge and the interview resumed without any renewal of the constitutional caution and advice of rights and no further tangible steps to facilitate the visit of the accused’s sister to him.

31. The issue of delay in finalising the record of interview and charging the accused was such an obvious one in this case that the State should have called any evidences it had to explain it rather than simply rely on the terse statement in the record of interview that the delay was due to transport problems. In the State v Peter Moripi and Gaela Wagisa [1987] PNGLR 356 a delay of 6 weeks was condemned but the record of interview was admitted because the accused was an escaped prisoner who was going to be in custody in any event, so that the delay did not affect him. That is not the case here where the accused was awaiting his Constitutional rights to be dealt with through the judicial system. The longer the imprisonment the more likely that the person in custody will be vulnerable to every influence which might impact on his future: The State v. August Toiamia. (1978) N 145. The circumstances were grossly unfair to the accused.

32. The practice of having an informal chat with the accused after arrest without administering a caution, or of taking a confessional statement, then conducting the record of interview at a later date is improper. It has the danger that the accused will feel that he has committed himself to a certain version of events before he has learned of his rights and thus, when a proper caution is administered he will feel he cannot take advantage of what he then learns, rendering the caution meaningless. If the Court continues to accept records of interview obtained in this way then policemen will not cease this practice. It is a practice which is unfair to the accused and which appears to some extent to have been followed in this case. The practice was condemned by Pratt J. in The State v Anton A mes Turik and Wickie Jack Peltham [1986] PNGLR 138 and McDermott J. in The State v Mana Turi [1986] PNGLR 221. The practice should be discouraged.

33. For those reasons, I consider that the record of interview from question 26 to the end should not be admitted and I so order pursuant to Section 57 of the Constitution.

_________________________________

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