State v Martin [2008] PGNC 7; N3274 (5 February 2008)

N3274

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS. 25, 578 & 1675 OF 2005

THE STATE

V

TOBATA SEBULON MARTIN, DAVID GAULIM,
TONY VARPIN & SIMON KILALA

Kokopo: Lenalia, J.
2007: 18th, 19th 23rd 24th April,
8th 9th 12th 13th, 20th 21st Nov.
11th & 20th December.
2008: 5 February

CRIMINAL LAW – Wilful Murder – Pleas of not guilty – Trial – Criminal Code,
s.299.

CRIMINAL LAW – Wilful murder charge – Not guilty pleas – Voir Dire Trial – Evidence – Standard of proof – Whether accused made confessional statement freely of his will – Whether the record of interview was obtained voluntarily or by duress.

CRIMINAL LAW – PRACTICE & PROCEDURE – Conduct of record of interview – Allegations of breaches of human rights – Exercise of rights under s.42 (2) of the Constitution – Nature of assault particularized in Notice of Voir Dire.

Cases cited.

R v Kar Moro & 16 Others [1975] PNGLR 14
Constitutional Reference No.1 of 1977 [1977] PNGLR 362
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Paro Wampa & 5 Others [1987] PNGLR 120
The State v John Ave & 2 Others (2004) N2622
The State v Raphael Walimini (2004) N2661
The State v Joanes Mesak (2005) N2853
The State v Towes Minmin (2005) N2915
The State v John Warkaul & Others – Unreported and unnumbered.

Counsels:

Mr. L. Rangan, for the State
Mr. Potoura, for the First Accused
Ms. S. Maliaki, for the Second Accused

5 February, 2008

1. LENALIA, J: Each of the four accused is charged with one count of wilful murder contrary to s.299 of the Criminal Code. On arraignment, all accused entered pleas of not guilty.

2. In the course of the trial of the four accused, Mr. Rangan of counsel for the prosecution sought to tender a number of documents. They included a confessional statement and the record of interview obtained from the first accused on 31 October and the 8 November respectively and the record of interview of the second accused David Gaulim. The voir dire trial only relates to the first and second accused Tobata Sebulon Martin and David Gaulim.

3. In case of the first accused, the allegations put on the notice of voir dire are serious. The grounds of objections are that, the confessional statement and the record of interview were obtained in breach of Section 28 of the Evidence Act because before the confessional statement and the record of interview were conducted, the accused is supposed to have been severely beaten up. There is evidence both by the State and the first accused that the same may have been beaten up not only by police personnel who arrested him but a number of relatives of the deceased who accompanied the police to the West Coast of Namatanai where they searched around for the accused and where he was finally located and arrested.

4. There is evidence by Sergeant Hillary Sirinjui that when he received the complaint, he made investigations into the killing which occurred at Napapar No.2 village, Gazelle District. The nature of such investigation was such that, on 30 October 2004, this witness together with a few other policemen and an unspecified number of deceased’s relatives had to travel to Mioko Palpal on the Duke of York Islands where he was dropped off. Other policemen and a number of civilians travelled to West Coast Namatanai in search of the first accused.

5. There is evidence from the first witness that, when the team returned from West Coast Namatanai to Mioko Island, the accused hands were tied to his back. All passengers alighted for a short period of time to pick up Sergeant Sirinjui. They took off from there to Kokopo beach front. The team arrived at Kokopo about 7 pm. The policemen then escorted the accused to the police station where he was locked up.

6. In cross-examination, Sergeant Sirinjui was asked if he saw the hands of the accused tied to his back. The witness answered in the positive. He was further asked if he at all saw anyone assault the accused. The witness replied that, "yes" he saw the accused being assaulted by a number of persons, but that there were many people who crowded around the boat and he could not clearly identify who was assaulting accused Tobata but he only heard the accused cry out in pain. Of course by 7 pm, I assume it must have been dark by then.

7. Sergeant Sirinjui denied assaulting the accused by himself during the record of interview. He was asked if he reminded the accused of the earlier beatings on 30th of October, the witness answered in the negative. The record of interview was conducted on 8 November 2004. The corroborator’s evidence is much similar to this witness and I think there is no need for me to go over his evidence.

8. The third witness, Constable Paul Wapinan was the one who obtained a confessional statement from the accused the day after the accused was brought in namely 31 October 2004. This witness said that, when the accused was handed over to him on the night of 30 October 2004, he locked him up in the cells.

9. The following day, he returned, and took the accused from the cells and interrogated him resulting in him obtaining a confessional statement from the accused. It is clear from this witness evidence that when the accused was handed over to him, he immediately escorted the accused to the cells as there were many people who were getting rowdy in and around the police station premises. As it appears from the evidence, "the people" were members of the relative of the deceased who was shot up at Napapar No.2 village.

10. Constable Wapinan was intensely cross-examined. He was asked if he ever saw any signs of beatings on the first accused’s face. He denied seeing any blood or swelling on the accused body. He confirmed that, when the accused was handed over to him, his hands were tied to his back. He denied seeing anyone assaulting the accused in and around the police station premises.

Defence evidence on the voir dire.

Accused Tobata Sebulon Martin.

11. The defence case on trial on the voir dire came from the accused himself and three others. Two of those witnesses are State prisoners who are now serving terms of imprisonments for various offences at the Keravat jail.

12. The first accused said, when the police arrested him at West Coast, Namatanai, he was severely bashed up. He said, he was booted, kicked and assaulted and hit with gun butts all over his body. He was punched many times over and kicked over and over again.

13. The accused said, as the result of the beatings he suffered, he bled from his nose and mouth. He was put on the dinghy and taken to Mioko Island. According to the accused evidence, when they arrived at the Kokopo beach front, he was again subjected to further assaults by members of the police force and the deceased’s relatives.

14. The accused confirmed in evidence that, they arrived at Kokopo around about 7 pm. Accused Tobata Sebulon Martin recalls that the next day, he was taken out to be interrogated. He said, when Constable Wapinan interrogated him, he denied being involved in the crime charged. The accused said that, when the confessional statement was taken, the policeman who took his story told him that, if he does not admit, the relatives of the deceased would be brought in to see the accused. The defence alleges that such suggestion put to the accused Sebulon Tobata was in fact threat creating fear and intimidation.

15. Part of this accused’s evidence is that, when he was finally interviewed on 8 November 2004, the record of interview was tainted by threats from Sergeant Hillary Sirinjui and Constable Francis Munap. According to the accused, the nature of the threat was that, if accused Tobata Sebulon Martin did not admit, the relatives of the deceased would be told to come in and deal with him. Accused said, as the result of these threats, he admitted to whatever allegations were being put to him by the interviewing officer.

16. The two State prisoners called were Emil Touralom and Kevin Norbert. In the month of October 2004, these two witnesses were in the cells at Kokopo. Both of these two witnesses corroborated each other and the evidence of the accused. They each said, when the first accused was brought into the Kokopo police station, they observed that, the face of the accused was completely swollen all over. Emil and Norbert had to assist the accused to eat as he could not eat properly due to the swollen and injured mouth. Each of them had to carry the accused to the toilet whenever the accused wanted to visit the toilet. Part of their evidence is that the accused Sebulon could not walk properly as the result of the injuries sustained in the ordeal.

17. In case of witness Norbert, he said in cross-examination in answer to a series of questions as to why he had to assist Sebulon Martin. The witness said that the accused could not properly see nor could he walk properly as his legs and eyes were swollen and he could see blackness all over the first accused’s face.

18. The last defence witness Michael Otto is a maternal cousin brother of the accused. He recalls that in October 2004, he visited the accused at the Kokopo Police Station. He observed that, the accused could not talk properly. He could not walk well and he had to be assisted. He said his face and eyes were all black and swollen. This witness said, he only stayed with the accused for a short time and left after giving some food to the accused.

Accused David Gaulim.

19. The evidence on the voir dire in favour of accused David Gaulim is much similar to the nature of the evidence adduced on this trial by the first accused. Similar in the sense that when David Gaulim was arrested at Navuvu plantation, the defence case is that, he was badly assaulted by members of the Police Mobile Squad.

20. David’s evidence suggests that, he was arrested at the above plantation where he was leaving with his sister and brother in-law Antonia Gaulim and Otto Peter. David said, the police mobile squad came and arrested him at night at the time his in-law and his family were already asleep and that he was beaten up very badly. When the police knock on the door to the room where he was sleeping, he came out only to be met by punches and kicks from the police mobile team. He staggered and stood up but again he received further punches and blows on his body and he immediately fell to the ground.

21. When David’s sister and brother in-law heard noises and came out from the room where they were sleeping with their children, they saw that a number of policemen were assaulting David Gaulim. They shouted to the policemen to stop assaulting the accused. According to David, he received a lot of injuries on his mouth, his face and other parts of his body.

22. Otto Peter, the brother in-law of accused David Gaulim confirmed that, on the night the accused was arrested, he was severely beaten by uniform policemen who arrested the accused at his residence at Navuvu plantation. According to Peter, there were about five policemen on the scene. The policemen lifted the accused up and dropped him onto the ground several times followed by kicks and punches. The accused was pulled along the road to the security gate that leads to the National Agricultural Research Institute (N.A.R.I.) at Keravat.

23. When they got to the gate that leads to N.A.R.I, he was lifted up and thrown violently into the police vehicle. The men who mishandled the accused got a spare tyre and placed it over his body. His hands were also tied to his back. In cross-examination, the witness was asked if, he actually saw what the police did to the accused. The witness said when he and his wife woke up, the accused was already out from the room on the lawn and they came out at the time when the accused was being kicked, punched and being lifted up several times and violently thrown onto the ground. He was asked if he and his wife ever tried to stop the police. The witness said, they both in fact called out for the police to stop what they were doing but their calls were ignored.

24. He was further asked if he actually saw the police punched the accused mouth or when he was lifted up and thrown down to the ground. The witness said, he was the eye witness to the brutal beatings sustained by the accused. He was asked if he could identify those who were responsible for the beatings. Otto said, it was dark then but he saw that, the men who were assaulting the accused were policemen. Asked further if he knew why the police came to arrest the accused. The witness said, he did not know.

25. Further evidence elicited in cross-examination was that, after the accused was assaulted, kicked, punched or hit with sticks and gun butts, he could not walk, so much so that, they merely pulled him along the road to the gate to the National Agricultural Research Institute premises. He could not walk alone and he had to be supported.

26. The last witness called by the defence for accused David Gaulim on the voir dire is Jeffrey Selu Tepi. This person is a remandee at the Keravat Jail. His evidence corroborates the evidence of the accused and his brother in-law that when the accused Gaulim was brought into the police station at Kokopo, he witnessed the injuries David Gaulim sustained.

27. According to Jeffrey, when accused David Gaulim was brought into the Police Station at Kokopo, the policemen put him down lying on the ground. When Jeffrey and a few other remandees came out from the cells to look at what was happening, they saw that the accused David Gaulim was lying flat on the ground. The cell-guard had to request the remandees including Jeffrey to come outside to carry the accused into the cells.

28. Jeffrey’s evidence is that, by that time he did not know who David Gaulim was, but said that, his observation of accused Gaulim was that, David Gaulim had been beaten up somewhere as he noticed that his face was swollen, he could not walk, and his face and eyes were black. This witness had compassion on David Gaulim and tried to assist in whatever way possible. He gave a few tablets to David, then after three days, accused Gaulim felt a little alright.

29. This witness reveals in his evidence that, when he first saw David, there was blood oozing from his nose and left eye. It was suggested to this witness in cross-examination that, what he told the Court was all lies as some parts of his evidence is different from what the accused said in his evidence. The witness said, what he was telling the Court is truth of what he saw at the time accused Gaulim was taken into the cells.

Submissions by counsels.

30. For the accused Tobata Sebulon Martin, Mr. Potoura spoke to his 14 page written submissions. I thank counsel for the work well done to assist the Court in the determination of the issues raised on the voir dire. Counsel submitted that, the Court should not accept the record of interview into evidence as it was preceded by beatings of the accused and since the accused confessional statement and the record of interview were conducted at the time he was overborne, those two documents should not be received into evidence.

31. On accused David Gaulim, I likewise thank Ms. Maliaki for her 9 page written submission. Ms. Maliaki submitted that, it is obvious that her client was severely beaten and threatened that, if he does not admit to committing the offence, the relatives of the deceased would be called in to further deal with him.

32. Counsel argued that only statements obtained voluntarily will be admitted into evidence, that is a confession made in the exercise of his free will and choice and not because his will was overborne or his statement made as the result of duress, intimidation, persistent importunity, undue insistence or pressure.

33. Counsel further submitted that, a confession will not be voluntary if it is preceded by threats or promise by a person in authority. Counsel urged the Court not to admit the record of interview into evidence.

34. Both counsels cited cases to support their arguments. I shall shortly refer to some of those cases a little later.

Submission by Prosecution on the Voir dire.

35. Mr. Rangan of counsel for the State argued that, if there is sufficient evidence to support the allegations put up by the two accused that s.28 of the Evidence Act had been breached, the Court must refuse to accept the documents sought to be tendered. Counsel further submitted that on the issue of breach of s.42 (2) of the Constitution, should this Court find that the policemen had failed to perform their legal obligations as required by the above proviso, the Court has "judicial discretion" to either admit into evidence or reject those documents.

36. Counsel further argued that, if a confession had a high probative value, that is essential for the prosecution case, but if the confession was obtained in violation of an accused’s right of the protection of the law, then whichever way the Court decides, it would contribute to the breach of the law.

37. If I can quote Mr. Rangan at page 2 of his written submission at the last paragraph where he says in the middle of the paragraph: "Either the court knowingly frees a guilty person or it knowingly allows the State to achieve its ends by breaching the law." That is in fact what a voir dire trial means.

Relevant law on voir dire.

38. I have said in the other two cases that if a confessional statement or a record of interview was obtained involuntarily, it is in the discretion of the Court to either admit or reject whatever document being sought to be tendered. Section 28 of the Evidence Act governs receipt of confessional statements. It says:

"28 Confessions induced by threats.

A confession that is tendered in evidence in any criminal proceedings 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."

39. The standard of "proof" required of the prosecution to prove voluntariness in a voir dire trial is that of "proof beyond reasonable doubt’: Regina v Kar Moro [1975] PNGLR 14 The State v Allan Woila [1978] PNGLR 99, The Sate v Kusap Kei Kuya [1983] PNGLR 263, (see also The State v Towes Minmin (2005) N2915), The State v Joanes Mesak (2005) N2853, The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622 and The State v Raphael Walimini (2004) N2621).

40. It has been a long standing and honoured practice that, before an accused is being interviewed or questioned for purposes of obtaining statements or where a record of interview is to be conducted, the caution contained in the Judges Rules must be given to an accused and the rights pursuant to s. 42 (2) of the Constitution must be complied with.

41. The criminal process from arrest to either conviction or acquittal is entrenched both in the Constitution and legislation. Thus under sections 3 and 5 of the Arrest Act (Ch.No.339) a policeman or a member of the public is authorized to arrest a person whom they believe to be about to or has committed an offence. Once a person has been arrested, in the course of the criminal processes, the law safeguards and ensures that an accused’s rights are protected.

42. In the case before me, there are three pieces of evidence which have been rejected by the defence namely, the confessional statement and the record of interview obtained from accused Tobata Sebulon Martin and thirdly, the record of interview had with accused David Gaulim for reasons that, such evidence were unfairly and involuntarily obtained.

43. On voluntariness, the law is that if the admissions made by the accused are unfairly obtained they cannot be admitted into evidence for the State and used against an accused in a criminal trial.

44. If the Court finds that, either the confessional statement or the records of interview were unfairly obtained, should the Court exercise its discretion to either reject or admit the three documents sought to be tendered against the two accused?

45. In both cases, I find from all the evidence both by the prosecution and the defence that the two accused were beaten very badly. I find that there was a certain threat issued to the two accused though such threats may have been uttered casually. The threats related to bringing in the relatives of the deceased if the two accused did not admit to the offence. In my view, the action by policemen responsible for the arrests of the two accused was couched with intimidation and duress.

46. People arrested for purposes of interrogation must be treated fairly in accordance with the law. The right to the protection of the law is provided by Sections 37 and 42 of the Constitution. In case of accused Tobata Sebulon Martin, he was badly beaten a day before the confessional statement was obtained.

47. The record of interview was conducted 8 days after the statement was taken. The threats can either be physical or oral: R v Loe (No.1) [1969 – 70] PNGLR 12. In Sebulon Tobata’s case, the threats were both physical and oral as I have found. Oral in the sense that, both accused were threatened orally that if they did not admit to killing the victim in this case, the police would bring the relatives to deal in any manner with the two accused. The Court must reject both the confessional statement and the record of interview.

48. In the case of the accused David Gaulim, I find from all evidence that he was physically assaulted as well. He sustained serious injuries. He was severely beaten at the place where he was arrested. It is clear from the defence evidence that, when this accused was seen by Jeffrey at the cells, he did not walk. He had to be carried from the lying position to the cell blocks.

49. In both cases, I find therefore that the confessional statement and the record of interview taken from accused Tobata Sebulon Martin and the record of interview had with accused David Gaulim were preceded by physical assaults, threats and intimidation was abuse of the Constitutional provision for the protection of the law. I must reject the record of interview and the confessional statement had with accused Tobata Sebulon Martin and the record of interview had with accused David Gaulim.

_______________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for 1st Accused
The Public Solicitor: Lawyer for 2nd Accused.