State v Tarangau [2008] PGNC 9; N3272 (5 February 2008)

N3272

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 227 & 322 OF 2004

THE STATE

V

KABAIA TARANGAU & MELBURNE ISRAEL

Kokopo: Lenalia, J.

2007: 9– 16 Oct,
7 - 9 Nov,
11 & 20 Dec.
2008: 5 February

CRIMINAL LAW – Rape – Plea of not guilty to each and severally – Trial – Criminal Code (Sexual Offences and Crimes Against Children) Act s.347

CRIMINAL LAW – Confessional statement – Record of interview – Admissibility of – Voir dire trial – Standard of proof – Whether admissions made were voluntarily made – Particulars of impropriety – Nature of impropriety particularized,

CRIMINAL LAW – Evidence – Record of interview and admissions made during the time accused was interrogated – Discretion to exclude.

CRIMINAL LAW - Evidence – Record of interview and Admissions –
Discretion to exclude – Impropriety of police investigating team – Accused assaulted when first arrested – Record of interview and confession statement obtained three days latter.

PRACTICE AND PROCEDURE – Constitutional rights – Right to the full protection of the law – Right to remain silent if he chose to – Protection of law commences at time an accused is arrested until conviction or acquittal – Record of interview rejected.

Cases cited

Papua New Guinea Cases:

R v Loe [1969-70] PNGLR 12
R v Joseph Kom [1967-68] PNGLR 265
The State v Rain [1976] PNGLR 43
The State v Allan Woila [1978] PNGLR 99
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Paul Brian Steven(2004) CR.No.342-351 of 2003
The State v Towes Minmin (6.10.05) N2915 Unreported Judgment

Overseas Cases:

McDermot v The King (1948) 76 C.L.R 501

Counsel:
Mr. L. Rangan, for State.
Mr. T. Potoura, for Accused.

5 February, 2008

EVIDENCE ON TRIAL

1. LENALIA, J: The two accused have been charged with two counts of rape contrary to s.347 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. In one of those two charges, the State alleges complicity against each of the two accused. The offences were allegedly committed at Utuan Island on the Duke of York group of Islands in Kokopo District on 25 September 2003.

2. There were two victims involved in these two cases. The State called ten (10) witnesses including the two victims who are twin sisters by birth. Because of the sensitivity of these cases, I will only refer to the two victims as D. T. and E. T. The first victim D. T was single at the time of the offence while her sister E. T was married to the third witness Tonga Arni Redin.

3. The prosecution led evidence which suggests that on the night of the above date, the two accused were to have used a humans skull to open the doors to Tonga Arni Redin’s house on Utuan island and they walked into the house and into the bed room where the two victims were sleeping with E. T.’s infant and undressed her and had sex with her without her consent.

4. In case of victim D. T. the State evidence is that, she was also undressed in the room and thereafter she was carried out of the house to somewhere on the beach front under a tree where she was sexually penetrated without her consent. After penetrating her she was carried back onto her bed in the house. The State’s case is that, when the two offences were committed, the two victims were both past asleep, and that what occurred to the two of them, they did not see or feel what was happening.

5. When E. T’s infant woke up early in the morning, it cried waking the mother up. When E. T woke up, she found out that she was completely naked except for her merry blouse. The pants and bra she wore the evening before she went to bed had been removed from her body and placed at different locations. This victim found semen oozing from her vagina. She also felt that the joints on her buttock where the legs are joined were really painful.

6. After finding out her predicament, E. T. woke victim D. T. up and asked her what had happened to her. When D. T woke up, she too found out that she was in much the same situation as her sister was in. While they were talking, she found that her bra was placed under her pillow, her pants and the calico were placed in the sink inside the house. She also felt pain in her body. She only had her merry blouse on and she too found human spermatozoa in her vagina. The joints on her legs were painful and she found sand on her body.

7. The third witness, Tonga Arni Redin is the husband of victim E. T. The prosecution evidence establishes that, Arni Redin first got married to victim E. T. but when news about the rape incident surfaced, the other twin sister D. T. with the consent of victim E. T. decided that they should both marry witness Arni Redin.

8. Asked in cross-examination why was it that, the two victims decided to both marry him. Arni said it was because of the incident that occurred in his house. He further said, because, there was a big story around the island about what occurred to the twin sisters in his house, the two victims decided to marry him. Currently, the three of them live together as husband and wives in one house on Mioko Palpal island.

9. Arni Redin slept in the same house where the offences took place, but he slept in the outer room or sitting room of some sort. Arni said in evidence that, when he slept in the sitting room, he did not feel or hear anyone coming into the house where or in which they were sleeping in. His wife woke him up and told him of the news that, both his wife and his sister in-law were naked and it looked like someone had raped them. Having heard of this news, Arni decided to go to To Rovia To Rumu who is his uncle and informed him about the news.

10. When To Rumu heard of the sad news, he decided to put up a set of security and safety measures to protect the family. He did that by placing innocent sorcery on the four corners of Arni’s house. When I say "innocent sorcery" I mean sorcery that is not intended to produce, and does not purport to be calculated or able or adapted to produce any harmful or unlawful results. The definition of innocent sorcery can be found in Schedule 1 of the Sorcery Act Chapter No.274.

11. The evidence of Orim Tokar is only relevant in so far as he claims that, when he came with the manager of Ulu Plantation to sell a volume of bags of cocoa at AGMARK in Kokopo, he met the accused Kabaia Tarangau and asked him about the rumours that he had heard on the island about what the two accused did to the twin sisters.

12. Orim said after he asked him, the accused Kabaia Tarangau told Orim about what he and Melbourne Israel had done to the two victims. That piece of evidence must be treated with caution as it might border on the rule against hearsay evidence as well as it could also be accepted on the basis of its circumstantial nature.

13. Jack Ephraim is a Councillor of the Utuan Ward in the Duke of York Islands. He should be about 60 years of age and he has been a Councillor for the last 15 years, a very well respected person in his community. This witness evidence is mostly hearsay and circumstantial in nature. He confirmed that he had heard stories about the rape in Arni Redin’s house and he came in to try and find out more about the stories and their veracity.

14. Councillor Jack was asked about his experience in custom and whether he knew of a practice in custom where people had used human skulls to cause people to have very deep sleep and carry out unlawful activities such as stealing or conducting other unlawful purposes in other peoples’ houses as was in the circumstances of this case.

15. His answer was that although he had heard old stories told to him by his great grand parents about such practice, during his life time he had not seen or heard anything like what happened on the date and the night in issue. He further said, since the Gospel message came to the Island, he had never seen or heard of anything of the type that happened to Arni Redin’s family.

16. The next witness was Rex Au. This witness comes from Lae in the Morobe Province. Around about the time the offence was committed, he was employed by Ulu plantation on Watnabar Island adjacent to the island where the offence was alleged to have been committed. He is no longer employed in that plantation. He is currently employed by the Rapopo plantation along the road to Tokua airport. Rex was asked in chief as to what he knew about the allegations made against the two accused.

17. Rex recalled vividly that on 1 October 2003, after getting treatment in the nearby Health Centre at Watnabar on Ulu island, relatives of a deceased had asked him to buy garden vegetables such as yams and taro from his garden for the feast of the dead person. He consented to the idea but he told those who asked him to wait until after he got treatment.

18. After getting his medication, he took those who asked for garden vegetables to his garden. There were a number of boys who went with Rex and whilst in the garden, he collected taro and asked the boys to bundle the taro up. On the same manner, yams were collected and tied together.

19. Rex recalls that, in the course of collecting yams and taro, the accused Kabaia Tarangau was present.

20. Rex’s evidence suggests that, when the boys were tying the taro together and collecting yams, they would occasionally laugh as they were speaking in their language. This witness was suspicious as to why the boys including the accused Kabaia Tarangau were laughing and he thought that they were laughing at him (Rex) and teasing him because he did not understand their language.

21. He then asked the boys why they were teasing him. In answer to his question, accused Tarangau is supposed to have told this witness that, they were laughing because of what, Tarangau and Melbourne Israel had done to the twin sisters. The twin sisters are the victims in this case.

22. In cross-examination, this witness was asked about what exactly did the accused Tarangau told him. Rex said he spoke to Kabaia and told him that, he had heard rumours about accused (he was talking to) and the co-accused about an incident at Utuan Island involving the twin sisters and whether it was true that, he (Kabaia) and Melbourne Israel had carried one of the two sisters out of their house at night and took her down to the beach where sexual intercourse was had with her.

23. Rex’s reply was that, when he enquired with Kabaia, the accused is supposed to have told him and the other boys that, he and the other boy had carried a human skull to Redin Arni’s house and carried Arni Redin’s wife and her sister to the beach and removed their clothes.

24. This witness was vigorously cross-examined as to the veracity of what he actually heard from accused Kabaia Tarangau. He gave the same answer as stated above. The defence counsel took advantage of this contradiction and further cross-examined the witness about the statement he made to the police investigating officers on 11 November 2007.

25. In his statement, on the second and third last paragraphs, this witness said:

"Kabaia I kirap itok, long nait sampala lain ikisim tupala meri. Meri blong Redin na tambu meri blong em na kisim igo long nambis na rausim ol samting blong tupala na tupala islip naked. Bihaen tasol long tok save mi continiu long buddalim olo taro. Mi givim ol taro igo long ol na oli go pas long peles".

26. The above statement is quite inconsistent with this witness evidence in Court. In his evidence in Court, he said when he asked accused Tarangau as to the rumours that he had heard from others about the incident at Utuan Island, accused Tarangau is supposed to have told him that, Tarangau and Melbourne carried the twin sisters down to the beach and undressed them.

27. The above Pidgin quotation is in fact saying that, accused Kabaia said, that, he was not responsible but that some unknown persons had gone to the victims’ house, carried them to the beach and removed their clothes and they laid naked on the beach somewhere. After asking a long series of questions the defence counsel sought leave to produce the statement to the witness. There was no objection and after having identified such statement, counsel tendered it as evidence of previous inconsistent statement. (See Exhibit "D.2").

28. Oscar Tobing was one of those policemen who arrested the two accused. Before 16 October 2003, he was directed by the Officer-in-Charge of the Criminal Investigation Branch here at Kokopo to make preliminary investigations into an alleged rape of a twin sister which took place at Utuan island on the Duke of York Islands.

29. The reason for this direction was because, this witness comes from Mioko Palpal Island adjacent to the island where the offences were committed. Mioko Island is also on the Duke of York group of islands.

30. Before the above date, Oscar and a number of police personnel went to Utuan Island to investigate. They met village elders including Councillor Jack Ephraim and received more information about the alleged rape. After receiving information about the suspicious nature of the rape, they returned to Kokopo after which he reported to the officer-in-charge of the Criminal Investigation Branch.

31. By the 16th of October 2003, the complainant in this case, Tonga Arni came to the C.I.D. office in Kokopo and lodged an official complaint. He is the complainant as well as the husband of the twin sister, the victims in this case. The complainant then led, this witness together with one civilian and another policeman to Butan block where suspect Kabaia Tarangau was working. Butan block is situated along the road to Putput on the south eastern coast of this Province.

32. After locating the accused Kabaia at the above block, he was informed of why he was being arrested. He was taken back to the Kokopo police station on that same date. Then immediately after they had arrived at the police station, Oscar Tobing obtained a confessional statement from the accused Kabaia Tarangau.

33. The Court noted this document (See Exhibit "2") though it has been tendered has not yet been accepted. He handed over the accused to the female counterpart Policewomen Constables Kolish Moab and Sunema Vue. A short statement by Oscar Tobing was tendered and accepted as evidence, (see Exhibit "1")

34. Oscar was crosses-examined about the alleged police brutality at the time he denied assaulting the accused Kabaia. He also denied seeing any policemen assaulting the accused.

35. Both the above policewomen were called to give evidence. In case of policewoman Constable Kolish Moab, she has had 8 years experience in the C.I.B here in Ralum Police Headquarters. She actually works and deals with cases that come through the Sexual Offences Squad (S.O.S.). She was the investigating officer in the case of the accused Kabaia Tarangau while her colleague Policewoman First Constable Sunema Vue was the corroborator.

36. In the case of accused Melbourne Israel, First Constable Sunema Vue was also the corroborator. Through Constable Moab two documents were tendered. They were marked for identification as Exhibit "4" (the statement by Constable Moab with accused Melbourne Israel and Exhibit "5.1" & "5.2" – Pidgin and English translation).

37. According to Constable Moab, she recalls that during the record of interview, no duress, intimidation, threats, promise or any other impropriety of any sorts were applied to the two accused and particularly on accused Kabaia Tarangau. This witness was asked in chief and cross-examination if she ever saw any injuries on the facial area of the accused who filed the Notice of the voir dire. She denied seeing any injuries on Kabaia’s face.

38. In cross-examination, this witness was asked about the date on which, Oscar Tobing questioned and obtained the confessional statement from accused Kabaia. She answered she could not recall the actual date and despite the defence series of questions on that issue, the witness said, she can not now remember how long or how soon afterward was it that she interviewed the two accused.

39. It was put to this witness if she was not present in the S.O.S office on 16 October 2003 when witness Oscar Tobing obtained the confessional statement the subject of the voir dire trial. She said she was present. She was asked as to what position in office Rolland Funmat held at the time the two accused were interrogated. The witness said, Sergeant Funmat was the Officer-in-Charge of the S.O.S office.

40. Sergeant Saint Luke Maibongu was the next witness. His evidence mainly deals with a set of 5 photographs he took on the rape scenes. This witness made certain observations and drew a sketch map of Utuan Island which is attached to his short statement. In his statement, the witness explains the set of photographs from photograph No.1 to No.5. They are self-explanatory.

41. In chief, this witness revealed that, he was one of those policemen who went to Butan block to arrest accused Kabaia Tarangau. In cross-examination, he was asked about the alleged brutality committed by witness Oscar Tobing as alleged in the amended notice of objection to the admissibility of the confessional statement obtained from accused Kabaia Tarangau.

42. This witness is one of the senior officers in the Police Force as he has been in the Force for over 27 years. Out of that stated period, he has served in the Criminal Investigation Division for nearly 27 years to the date he gave evidence. This witness denied seeing Oscar assaulting accused Tarangau.

43. The last witness in this case was Policewoman First Constable Sunema Vue. She was the corroborating officer in case of these two cases under consideration. Her evidence is very similar to Policewoman Constable Kolish Moab. The witness denied seeing any policemen assaulting accused Tarangau during the record of interview or at the time when she was at the station when accused Tarangau was being dealt with.

44. Her statement was tendered through her and marked for identification as Exhibit "7". In cross-examination, she was asked and asked again if she saw Sgt. Roland Funmat or Oscar Tobing assault accused Tarangau. She maintained her cool and replied that, she did not see anyone assaulting Kabaia Tarangau or Melbourne Israel.

Defence case

45. On this trial, the first defence witness called was the accused Kabaia Tarangau. This witness recalls that on the date he was arrested, he was working in Birau Redin’s block at Butan. While he and Lepi were working, a police vehicle came and stopped. Lepi is Birau Redin’s brother who was working with the accused Kabaia in that block.

46. When they saw, Birau Redin alighted, they thought he had come to see and check them. They continued working. Then they saw the policemen came out together with Arni Redin Tonga. Lepi got up and whispered to the accused concerned that something must have gone wrong.

47. Birau called out for accused Kabaia to come over to where they were standing near the police vehicle on the road and asked Kabaia if he had done anything wrong. Accused Kabaia replied that, he had not committed any trouble. He was asked to board the police vehicle and they took off. When they came to Gelegele, Birau Redin got off.

48. Kabaia said, as soon as they arrived at the Kokopo police station, he was placed in the cells. Next day, he was taken out to the C.I.D office where Oscar Tobing questioned him. He said during the course of questioning, he denied the allegations put against him. He said however that while he was being questioned by Tobing, another policeman came in and started to assault him. Kabaia referred to that other policeman as "of Sepik origin".

49. The nature of assault was kicking by boots and that he was threatened that, if he did not admit, he would be hit with the piece of timber. Kabaia further stated that after he had been beaten very badly, he admitted to committing the offence only to safe his life. From this witness evidence, there is a possibility that another policeman might have been involved in the alleged assault.

50. He was asked where about on his body was he assault. He replied that, it was on his jaw and that there was blood coming out from his mouth and face. He marked the length of the piece of timber which he was threatened with to be about a meter long.

51. This witness was asked about the prosecution evidence about him and Melbourne using a human skull to make magic which caused the victims a deep sleep and thereafter the two of them carried one of the victims to the beach where one of the accused had sexual intercourse with her while the other co-accused had sex with the other victim in the house.

52. The witness replied that these were allegations put against him and Melbourne without any proof and that those allegations were developed from discussions had with the witnesses at Utuan Island on the Duke of York Islands. He was asked about the evidence of witness Rex Au that, he (Kabaia) had told Rex about him and Melbourne carrying a human skull to Tonga Redin Arni’s house and thereafter, had sex with the two victims.

53. The witness simply replied that such evidence was not true. Kabaia’s evidence is that after he had been beaten he was asked to sign his signature. He only put an X mark.

54. In cross-examination Kabaia was asked if he received any injuries on his face or any part of his body. His answer was that, he did not receive any scars, however he sustained a swollen face and the pain on his body troubled him for sometime. Later, the evidence by Emmanuel Auka will show that, when he came to see the accused in Sergeant Roland Funmat’s office, Emmanuel could not recognize the accused Kabaia as Kabaia’s face was beyond recognition.

55. The second accused gave evidence on account of how he was apprehended and locked away in the cells at the Kokopo police station for over one week. Then he was taken out to the C.I.D office where he was interrogated. He recalls that, when he was in the cells, the police kept them separate in two different rooms. It is not clear from this witness evidence if the two separate rooms mean two different cells.

56. He said, when the two policewomen asked him about the alleged offences and about his involvement in the two crimes, he said he denied all allegations.

57. This witness tells of an incident when the two of them went for the record of interview to be conducted. Before they were handed over to the two policewomen Constables, they were ordered to lift and carry each other and ordered them to walk around to the fence around the police station.

58. Melbourne was asked in cross-examination if he ever witnessed police exercising brutality to accused Kabaia Tarangau. He said, he did not see this but said after Kabaia had been bashed up, he noticed that his co-accused’s face was quite swollen with black eyes. It is clear from this witness evidence, that the record of interview with him was conducted in an orderly manner.

59. Birau Redin is a block owner at Butan where the accused Kabaia Tarangau was working when he was apprehended. This witness did not see much of what happened in this case as well as what happened between the accused Kabaia and the policemen who allegedly assaulted him. Sergeant Oscar Tobing went to this witness office and asked him if he could assist the police to locate accused Kabaia.

60. They took off from Kokopo and Birau guided the police vehicle to Butan blocks where this witness owns a block. They stopped and Birau asked Kabaia if he had committed any offences at home.

61. When Kabaia replied in the negative, the police invited accused Kabaia to accompany them to the police station. This witness said on their way back, he was dropped off at Gelegele where he was then residing. The two policemen Sergeant Oscar Tobing and Sergeant Saint Luke Maibongu contradicted themselves when asked in cross-examination if witness Birau Redin was dropped at Gelegele or not.

62. Both policemen said, they came with him to town and dropped him at Kokopo. I would accept the version given by the defence evidence that, on the trip back from Butan block, witness Birau Redin was dropped at Gelegele and not at Kokopo town.

63. The next defence witness was an impressive one. He is Emmanuel Auka from Ravat village in Kokopo District. He is married to a woman from Utuan Island where the two accused come from. He was formerly a soldier in the PNG Defence Force. Emmanuel told the Court that, he was aware of the two accused being arrested for the alleged offences.

64. This witness said, on the date he came to see accused Kabaia Tarangau at the Kokopo police cells, he asked permission from Sergeant Rolland Funmat to use his office so he could see accused Kabaia. He was given permission and then asked if Kabaia Tarangau could be brought in for him to see him. The reason he wanted to see this accused was because, he had heard from a friend that, accused Kabaia had been badly assaulted by police.

65. He was asked in chief if he actually saw accused Kabaia. He answered in the positive and added that, though he did not bring any food for the accused, his brother-in-law Lapi Redin brought some flour balls with some protein foods. He was further asked if he noticed anything about accused Kabaia’s appearance.

66. Emmanuel replied that, when accused Kabaia was brought into Sergeant Funmat’s office, he could not recognize him because, his face was totally swollen up with black eyes. The accused concerned told this witness that, he had been bashed up by police. Emmanuel said, he can not hide anything as he is related to the accused Kabaia Tarangau.

67. Accused Kabaia is the son of Emmanuel’s wife’s sister. The witness said that, when this witness and Lapi offered food to Kabaia, he tried to eat but he found it hard to eat as the accused could not easily open his mouth. According to this witness, the accused also suffered from dislocated jaws.

68. Before he left, Emmanuel thanked Sergeant Funmat for the use of his office. Sergeant Rolland Funmat was called by the defence to confirm the defence case that, Emmanuel used his office to see and speak to accused Kabaia Tarangau.

69. The last defence witness is the prisoner of the State, Paul Vuliau. This witness was arrested in the month of July in 2003 for an offence of armed robbery. He was kept in the police cells at Kokopo for a period of four months.

70. He identified the accused Kabaia Tarangau as the person with whom he was together with in the police cells at Kokopo in July 2003. He recalls that Kabaia Tarangau and his co-accused where arrested and brought into the same cells on or about October of that year.

71. Paul’s evidence shows that, when accused Kabaia was brought into the cells in the afternoon on the date he was arrested, the next day he was taken out to be interrogated. That after he was interviewed, he was brought into the cells and he then observed that the accused Kabaia’s face was swollen all over and the mouth was also swollen. He said when accused Kabaia asked to be taken to the hospital, police refused to take him down to the hospital.

72. He also noticed that, Kabaia could not properly eat because, his jaws were swollen and he concluded that, the accused jaws were dislocated. When he saw this, he decided to be a Good Samaritan for accused Kabaia and he provided assistance to the said accused for one week. He said Kabaia suffered great pain which lasted for one week and he named another prisoner Francis Tigalia who assisted the accused on this voir dire. That witness was not called.

Defence submission on the voir dire

73. I thank both counsels for your written submissions. For the defence, Mr. Potoura argued that, threats can be physical or oral and it can be implied and any promises made are just as fatal to the prosecution case. He cited the case of R v Loe [1969-70] PNGLR 12 and R v Joseph Kom [1967-68] PNGLR 265 in support of his argument.

74. Counsel further submitted that, his client was badly assaulted a few days after the confessional statement and the record of interview were obtained and as such they should not be accepted into evidence as such documents were obtained contrary s.28 of the Evidence Act.

75. He submitted that because the accused was overborne at the time the accused made the confessional statement and the answers given in the record of interview, those documents were involuntarily obtained in the circumstances of this case and the Court should use its discretion to reject such evidence.

Submission in reply on voir dire by prosecution

76. Mr. Rangan of counsel for the prosecution submitted in reply by making reference to a number of cases saying that, a person is arrested when the police tell the person that, he should come with them to the police station that, that is the time he is arrested. That issue is not before the Court so I must not distract my mind from the essential question of the manner under which the record of interview and the confessional statement were obtained. Counsel submitted that it is up to the State to negate the allegations on the criminal standard of proof that is "proof beyond reasonable doubt".

77. Mr. Rangan submitted that, the issue of whether or not a statement has been made voluntarily is a discretionary matter for the jury to decide. He cited the case of The State v Rain [1976] PNGLR 43.

78. Well, my view is that Papua New Guinea does not have the jury system to decide the issues of facts leaving the issues of law to be decided by the judge. A judge in Papua New Guinea is both a judge of facts and of law and therefore, if there is an allegation of police brutality, it should be decided there and then. That is why somewhere in the Criminal Practice Rule requires that 14 days before the trial starts, an accused or his lawyer should serve on the State counsel a Notice of Voir Dire.

Relevant Law on voir dire

79. The principle of law in relation to receipt of a confessional statement or the record of interview into evidence for the prosecution is well covered both by legislation and practice. To start with every citizen and every non-citizen has equal rights to the protection of the law. That is why Section 37 (1) (2) (3) & (4) of the Constitution state:

"(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution."

80. Complementing Section 37, other provisions such as s.36 on freedom from inhuman treatment, s.42 on the liberty of all persons, s.43 on freedom from forced labour and s.44 on freedom from arbitrary search and entry, Section 28 of the Evidence Act Ch.No.48 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."

81. When a confessional statement or a record of interview for that matter is challenged on the basis of involuntariness, the onus is on the prosecution to prove beyond reasonable doubt that the conduct of interview or any statement was done in a fair and lawful manner and it is established law that, the standard of proof required of the prosecution to establish voluntariness is ‘proof beyond reasonable doubt": The State v Allan Woila [1978] PNGLR 99 or The State v Kusap Kei Kuya [1983] PNGLR 263. (See also cases such as The State v Towes Minmin (2005) N2915 or that of The State v Paul Brian Steven (2004) CR.No.342-351 of 2003).

82. According to some of the cases I have cited, any admissions made either in the record of interview or a confessional statement is preceded by inducement of any sort such as threats, promise, or if a statement is obtained as a result of duress, intimidation, persistent importunity, pressure, undue insistence cannot be voluntary: McDermot v The King (1948) 76 C.L.R 501.

83. 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.

84. The criminal process from the time an accused is arrested to the time he or she is convicted or acquitted 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, the criminal process commences from then and onward until conviction or acquittal and in the course of that process, the law safeguards and ensures that an accused’s rights are protected.

85. In the case before me, there are two pieces of evidence which have been rejected by the defence namely, the confessional statement and the record of interview for reasons that, such evidence were unfairly obtained.

86. On voluntariness, the law is that if the admissions made by the accused are unfairly obtained they cannot be accepted into evidence for the State and used against an accused in a criminal trial: McDermot v The King (1948) 76 C.L.R. 501.

87. Accused Kabaia Tarangau gave evidence that, while Sergeant Oscar Tobing was interrogating him, another policeman came into the C.I.D office and assaulted him by using safety boots which caused injuries. The accused himself said, he was interrogated a day or so after he was arrested. It is quite evident that accused Kabaia Tarangau must have been intimidated, he was physically assaulted, put under duress and so much pressure was applied on him so that, the documents sought to be tendered cannot be accepted into the prosecution evidence.

88. There was evidence from Emmanuel Auka that, when he came to see the accused Kabaia Tarangau at the police station, he could not recognize the said accused as his face was completely swollen and beyond recognition and when he was offered food, he could not eat because the accused’s mouth was swollen and Emmanuel assumed that, Kabaia Tarangau’s jaws were as well dislocated.

89. Perhaps an independent witness called by the defence was Paul Vuliau. His evidence goes to corroborate that of Emmanuel Auka on the injuries received by the accused Kabaia. Because of the above evidence, the State has not discharged the onus of proving voluntariness beyond reasonable doubt.

90. I find from the evidence on this voir dire that accused Kabaia Tarangau was badly beaten a day or two after he was arrested. His facial appearance was seen by a number of defence witnesses confirmed that, accused Kabaia Tarangau was in fact assaulted.

91. If Sergeant Oscar Tobing did not assault the accused, there is evidence, that another policeman of Sepik origin had assaulted him. The accused referred to that other police man as he had seen given evidence in his case. I find therefore that the accused’s confessional statement and the record of interview were preceded by physical assault, intimidation and duress and they cannot be accepted into the State’s evidence.

92. On the basis of the foregoing evidence and the discussion on voluntariness, I rule that, this Court must not accept the confessional statement and the record of interview conducted with the accused Kabaia Tarangau. This is my ruling on the voir dire.
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The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the 2 Accused.