State v Blasius [2008] PGNC 169; N3518 (17 October 2008)

N3518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 882 OF 2006

THE STATE

V

JOHN BLASIUS

Kokopo: Paliau, AJ
2008: 14th, 17th October

CRIMINAL LAW – Verdict – Unlawful use of motor vehicle – Not Guilty Plea – Trial – Criminal Code s. 383(2).

CRIMINAL LAW – Practice and Procedure – Notice of Voir Dire – Voir Dire trial conducted – Whether admission in Record of Interview voluntarily made – Standard of Proof of Voluntariness of confessions is proof beyond reasonable doubt, with the onus upon the State

Cases cited:
R v. Fari Puko (1962) N259
R v. Amo and Amun [1963] PNGLR 22 at 23
R v. Wendo [1963] PNGLR 217 at 228
The State v. Allan Woila [1978] PNGLR 99

Counsels:
Mr. J. Wohuinangu, for the State
Mr. F. Kirriwom and Mr. P. Kaluwin, assisting, for the Accused

17th October, 2008

1. PALIAU, AJ.: A plea of not guilty was entered by the accused to one count of unlawfully using a motor vehicle Registration No. BBR 672.
   
2. The State alleged that on the 17th September 2005, between the hours of 8:30 pm and 12:00 pm a group of men about 5 of them stole a vehicle from the victim Andrew Pakili at or near Vunapalading and drove away after robbing him and his family of K 200.00 cash. On their way to Tamanairik they picked up the accused. They together with the accused abandoned the vehicle at Tamanairik and escaped. The accused was apprehended and later charged with unlawful use of a motor vehicle.
   
3. The accused appeared before Lenalia, J., on the 9th September 2008. His Honour ordered a mistrial and the trail dates were vacated. Basically a mistrial was ordered because a voir dire trial that was to have proceeded with did not take place.
   
4. When the trial commenced on the 9th September 2008, the prosecution called the corroborator and the interviewer who conducted the Record of Interview (ROI), namely Constables Patti Ami, and Joe Martin. Mr. Woihunangu for the Prosecution sought to tender the ROI in the course of examination in chief of Joe Martin. At this juncture the Court enquired with Ms. Ainui, the Defence Counsel, if she had any objections to the tendering of the ROI. She indicated to the Court that she had no objections. The Court thought that the defence had changed their position in relation to the voir dire trial and accepted the ROI into evidence as part of the prosecution case.
   
5. After the examination in chief of witness Joe Martin, the Court consulted with Defence Counsel if she no longer wish to pursue the voir dire trial. Both Counsels realised that they had gone past the stage where the voir dire trial should have commenced.
   
6. At the end of the submissions by Counsels, the Court raised concerns as to the wastage of time as the trial could not be continued and declared a mistrial. A mistral was declared by virtue of the Court’s inherent powers under Section 155(3) and (4) of the Constitution.
   
7. The voir dire trial was conducted before me on the 14th October 2008. The prosecution called one witness, Joe Martin, the interviewer and the Defence called the accused.
   
8. The issue that was before me for determination was whether the admission or confession by the accused in his ROI was obtained voluntarily or was obtained through unfairness and fear.
   

Evidence

9. By consent these documents were tendered as evidence:
   

(1)	Statement of Andrew Pakila – Pidgin	Exhibit "A"
(2)	Statement of Andrew Pakila – English	Exhibit "B"
(3)	Indemnity Receipt dated 18th September 2005	Exhibit "C"

10. Joe Martin who testified as the interviewer for the State stated that the accused admitted to the commission of the offence freely during the ROI. When put to him during cross-examination that the accused was assaulted by him and his corroborator, Constable Cheetah Moka, he denied that the accused was assaulted by him or Cheetah Moka. He further stated that at no time during the ROI was the accused assaulted by him and Cheetah Moka in order for him to admit to the offence. He admitted freely. He signed the record of interview freely, on his own free will. He also denied that he was aware that the accused was assaulted when he was apprehended by the Tomaringa Police personnel or at the Kerevat Police cells.
    
11. The accused stated in evidence that he was assaulted when he was apprehended by the Tomaringa Police personnel. He was also assaulted by Joe Martin and Cheetah Moka during the ROI. In examination in chief he showed to the Court where he was assaulted, a scar on the right of his forehead close to his eyebrow. He also stated in re-examination that he was in great pain and was fearful. When he was cross-examined as to whether he was able to produce any medical proof of his injuries, he was not able to produce any.
    
12. It is not disputed that the accused was cautioned and told of his constitutional rights as per Section 42(2) of the Constitution. What is being disputed is whether there was any real opportunity given to him to talk to his family.
    
13. The standard of proof of voluntariness of a confessional statement or admission is proof beyond reasonable doubt. The onus is on the State to prove that the confession or admission is made voluntarily beyond reasonable doubt. See R v. Fari Pako (1962) N 259, R v. Amo and Amuna [1963] PNGLR 22 at 23, R v. Wendo [1963] PNGLR 217 at 228 and The State v. Allan Woila [1978] PNGLR 99.
    
14. Has the State proven beyond reasonable doubt that the accused did freely admit or confessed in his ROI that he committed the offence of unlawful use of motor vehicle? Was his admission or confession voluntarily obtained? Has the State proven that beyond reasonable doubt?
    
15. The State only called the interviewer as its only witness. His demeanour during cross examination was uneasy. He became defensive when pressed to answer questions relating to whether the accused was assaulted.
    
16. There were other witnesses that the State could have called to corroborate the interviewer’s evidence. Cheetah Moka, who witnessed Joe Martin at the ROI as the corroborator should have been called. He is also an important witness for the State when the question of voluntariness of admission by the accused is an issue. Why wasn’t he called to give evidence? Another important witness for the State is Topati Army who received the accused at the Kerevat Police Station when he was brought by the Task Force on 16th December 2005. He questioned the accused and stated the accused admitted the offence. He later gave all the information to Joe Martin. He was not called. Why only the Prosecutions know. Of course a member or two of the Police Task Force could have also been called to clear any doubts as to whether the accused was assaulted by any of the Task Force members. This piece of evidence was also not obtained.
    
17. On the other hand, the accused when giving evidence spoke clearly and answered questions in particular when being cross-examined without hesitation. He was not shaken at all. His demeanour was credible. He even showed evidence of him assaulted by pointing to a scar at the left side of his forehead, close to his eyebrow.
    
18. All in all, I tend to believe the accused’s version of the story. I do not consider any reason why the accused should come to this Court and tell lies. He is a witness of truth.
    
19. As the burden of proof is on the State, it has not discharged that burden of proof. The State has not proven beyond reasonable doubt that the admission by the accused in his ROI was voluntary.
    
20. I therefore will not accept and admit the accused’s ROI into evidence as part of the prosecution’s case.
    
21. At this juncture, both the State and Defence formally closed their cases.
    
22. Counsels made submission on the verdict. The State submitted that because they relied on the admission by the accused in his ROI and because the Court has ruled that the admissions are inadmissible, the State offers no further evidence.
    
23. Defence submitted that the State has offered no evidence and the accused should be found not guilty, acquitted and discharged.
    
24. Having considered the submissions by both Counsels, I find the accused not guilty of the crime of Unlawful use of a Motor Vehicle. He is acquitted and discharged forthwith.
    

Ordered accordingly,

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