N4139

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 251 0F 2010 &
1455, 1457, 1433, 1444, 1447, 235 & 287, 78 & 79,
1459, 1431, 76 & 77, 239, 237 & 235 OF 2009

THE STATE

V

WILLIAM NANUA KAPRIS
(1st accused),

JACOB PENINGI OKIMBARI
(2nd accused),

COLLIN MASILO
(3rd accused),

BONNY SOLOMON
(4th accused),

JOHNNY GUMAIRA
(5th accused),

DAMIEN INANEI
(6th accused),

KITO ASO
(7th accused),

JOYCE MAIMA
(8th accused),

KIA WARREN
(9th accused),

BOBBY SELAN
(10th accused),

RUBEN MICAH
(11th accused),

ISABELLE KIVORE
(12th accused),

ELVIS BALA AKA
(13th accused) &

PETER ALLAN POPO
(14th accused)

Madang: Cannings J
2010: 13, 14 September, 5 October

EVIDENCE –admissions in record of interview – voluntariness – Evidence Act, Section 28

EVIDENCE –admissions – whether circumstances in which police interviews conducted make it unfair for record of interview to be admitted into evidence against an accused – discretion of trial judge to refuse to admit evidence improperly or unlawfully obtained.

During a trial, objection was taken by an accused to the admission into evidence of two records of interview, on two grounds: (i) the statements recorded in each document were made involuntarily (as the accused had been assaulted by police officers) and (ii) it would be unfair to allow the statements to be admitted into evidence, as the police acted improperly and breached the accused's human rights. 

Held:

(1)	As the accused gave evidence of being assaulted and intimidated by police officers, it is incumbent on the State to prove beyond reasonable doubt that the statements were made voluntarily.

(2)	The State failed to prove beyond reasonable doubt that the accused made the statements voluntarily.

(3)	As the accused was also alleging unfairness arising from the circumstances in which the interviews were conducted, it is the accused who bears the onus of proving unfairness on the balance of probabilities and of convincing the trial judge that the discretion should be exercised to refuse to admit the statements into evidence.

(4)	Unfairness, arising from a succession of police improprieties and human rights breaches, was proven, and the court decided that it would be unfair to allow the accused's admissions to be admitted in evidence.

(5)	The court refused to admit into evidence both records of interview.

Cases cited

The following cases are cited in the judgment:

Constitutional Reference No 1 of 1977 [1977] PNGLR 362
R v Kuras [1964] PNGLR 18
The State v Anton Turik [1986] PNGLR 138
The State v David Yakuye Daniel (2005) N2869
The State v Goi Mubin [1990] PNGLR 99
The State v Joanes Mesak (2005) N2853
The State v Kevin Everitus [1985] PNGLR 109
The State v Kwambol Embogol (1977) N91
The State v Linus Rebo Dakoa (2009) N3586
The State v Michael Balana (2007) CR 552 of 2003
The State v Silih Sawi [1983] PNGLR 234
The State v Simon Tanuma [1999] PNGLR 475
The State v Suk Ula (No 1) [1975] PNGLR 123

Dates

The events referred to in this judgment occurred in 2008 unless otherwise indicated.

VOIR DIRE

This was a voir dire held to determine whether two records of interview should be admitted into evidence.

Counsel

P Kaluwin & A Kupmain, for the State
D Dotaona, for the 1st accused
M Mwawesi, for the 7th, 12th & 13th accused
A E Raymond, for the 2nd, 3rd, 4th, 5th, 6th, 9th & 14th accused
S Daniels, for the 8th, 10th & 11th accused

1. CANNINGS J: This is a ruling on an objection by the 14th accused, Peter Alan Popo, to the admission into evidence of two records of interview, dated 27 August and 20 October 2008.

2. Objection is taken on two grounds:

•	First, involuntariness. It is argued that the statements recorded in both documents were made involuntarily. This is the primary ground of objection set out in the notice of voir dire filed on 6 August 2010. 

•	Secondly, unfairness. This ground of objection is alluded to in the final paragraph of the voir dire notice, where there is a reference to Section 42(2) of the Constitution. Issues of unfairness were also raised in the course of cross-examination of State witnesses. 

3. I am going to consider that the objection is based on those two grounds, even though on the face of it the objection was only on the ground of involuntariness. This is not unfair to the State, as it was apparent from the evidence that serious unfairness issues were being raised. Also, the State has had a reasonable opportunity to respond to the serious allegations of breaches of constitutional, or human, rights that have been raised during the voir dire.

4. In giving a broad interpretation to the voir dire notice, I am taking the same approach that I took in The State v Linus Rebo Dakoa (2009) N3586, a Kimbe case in which the accused was charged with two counts of wilful murder and the State relied on a confessional statement, which the accused claimed was extracted from him involuntarily and unfairly. In that case, the involuntariness objection failed but the unfairness objection succeeded.

FIRST GROUND OF OBJECTION: STATEMENTS MADE INVOLUNTARILY

Defence evidence

First defence witness: the accused

5. Peter Alan Popo, a Chimbu man living in Lae, gave sworn evidence that the police arrested him without warrant at his residence in Eagle St, Lae, on the morning of Monday 7 July 2008. The police officers were from the National Crimes Intelligence Unit. He was in a vehicle with his family and the police forced everyone out of the vehicle and forced him to lie on the rain-sodden ground. Guns were pointed at his head and other parts of his body. His house and vehicle were searched.

6. In charge of the police team was Inspector Chris Kunyanban, who assaulted the accused and then ordered that the accused's family (his stepmother, Jiwaka, his wife and two small brothers) be driven to the police station. The police drove him and a friend, Stanna Koi, around Lae, in the process assaulting him with gun butts, buttons and other weapons and swearing at him, yelling at him 'Admit! Admit!', and kicking him while he was lying face down in a Toyota Landcruiser 10-seater. Two vehicles were used.

7. He and Stanna Koi were taken to Namanula Hill and pulled out of the vehicle. He was further assaulted badly, a gun was cocked and pointed at his leg. He was crying and shouting. They were taken to Top Town police station and Stanna was left there. He was driven to the town market area and asked more questions about the BSP Madang robbery. He was taken to Maus Markham where a heavy chain was placed around his neck. He was made to lie face down in the vehicle, still with the chain around his neck. The vehicle was driven through potholes and the policemen had their boots on his back. At one stage the vehicle was driven to Kamkumung as the police were searching for an escapee, then to Town, then back to Kamkumung. He was told by a mobile squad member: 'If you do not talk, Chris will kill you. Chris is very angry about the escape. When he comes you should talk.' So he asked them to get Chris.

8. He was taken to the police station at about 4.00 pm. Inspector Kunyanban came, and the chain was removed but he said 'I do not think he will give us a correct story, so take him out again'. This time, he was driven to Malahang, then to Voco Point, back to Malahang and past the Besta factory. By this time it was 12 midnight or 1.00 am on 8 July. He was taken to a house where he thought he would be assaulted or shot. He told the police that he would tell them whatever story they wanted. He asked again that they call Chris, which they did.

9. He was taken back to the police station. By this time it was about 2.00 am on Tuesday 8 July. He made a confessional statement. He was shown a photo file and asked to say if he knew the people and he said yes. He was in fear and pain and signed a statement before Chris Kunyanban and George Avali. The police charged him with kidnapping and unlawful deprivation of liberty and locked him up in the cell.

10. He was later taken to Madang and detained at the Jomba cell. He was taken to the CID office at Madang police station for an interview. Chris Kunyanban was in Madang at that time. For the first interview, he told the police that he wanted to see a lawyer. His father had engaged Bilding Tabai of Tabai Lawyers but his phone was off. Sgt Ray Ban, who conducted the interview, told him 'You should say what you have already stated'. Sgt Ban said 'If you do not talk, we will get Chris'. He was in fear. He had already heard Inspector Kunyanban tell Sgt Ban and others 'This man will co-operate with you. If he does not, you tell me'. Sgt Ban said 'There is no other time, you should co-operate. It will assist you in your case'. The police forced him to agree to names of people that he did not know.

11. As for the second interview, the police said that they had missed some questions and needed to do another interview.

12. In cross-examination, the accused agreed that on 7 July, before the police came to his house and apprehended him, he had been drinking at Phil's Hotel until the early hours of the morning. He was with Stanna Koi and a Koiari man called Martin. He also agreed that he knows a woman called Helen Mark Kuipa and that she stayed a night at his house, with his stepmother, Jiwaka. He agreed that the police searched the vehicle he was driving – without a warrant – and retrieved about K28,000.00 from it. 'But it was not my money', the accused said. Stanna was not in the house with him. When the police put him (the accused) in the vehicle, Stanna was already there. He maintained the story given in examination-in-chief about being driven around Lae, assaulted and chained, upon the orders of Chris Kunyanban, and forced to give a statement to the police in early hours of Tuesday 8 July.

13. It was probably on Friday 18 July that he was brought from Lae to Madang. He maintains that he was forced to sign the records of interview. At all times he was being interviewed and asked to sign he was in fear of further intimidation and brutality. He was not directly threatened or assaulted while in Madang but was nevertheless forced to say what the police wanted him to say. He was forced to sign by Sgt Ban and other police officers.

2nd defence witness: Stanna Koi

14. He is from Western Highlands Province. He knows the accused as they live in the same area in Lae. He gave evidence of being arrested at Phil's Hotel on the morning of Monday 7 July. He was put in one of two police vehicles and taken to Eagle St, where the police searched Peter's house. Peter's wife was put in the vehicle he was in. Peter was in the other vehicle. They were taken in those two vehicles to Namanula Hill – the water tank area. He was told to kneel down near a fence and a gun was pointed at him. The police took Peter to the side of the road and shouted at him 'Talk!' The beatings went on for a while. Then there was a radio call and they were taken to the Papuan Compound. Then they became separated. He was taken back to the police station but Peter was not brought in.

15. In cross-examination Stanna Koi agreed that he had been drinking at Phil's Hotel, with Peter (until he left) and two or three others. Peter had picked him up in a grey sedan on Sunday afternoon. Peter left in the early hours and he was in the process of looking for him, asking two girls in a room, when the police knocked on the door and took him outside. That is when he was put in a police vehicle and taken to Peter's house. He knows Inspector Kunyanban. He was in the vehicle that he, Stanna, was in. He was locked in the police cell for four days. Quizzed over how he could say that the accused was beaten up by the police at Namanula Hill, Stanna Koi said the accused was the only one pulled out of the vehicle. He heard screaming and heard something being hit against a human body. 'It could only have been Peter who was being assaulted.'

16. That was the close of the defence case.

The State's evidence

First State witness: interviewing officer, Sgt Ray Ban

17. He is based in Madang. He has been a member of the Police Force for 20 years and spent 17 years in the CID. When the accused was first brought from Lae to Madang, he was regarded as a witness but it was later decided that he should be charged.

18. For the first interview, he cautioned the accused about his right to remain silent. No threats were made by himself or by the corroborator, Richard Sibolo. The second interview was conducted on 20 October as he had received certain information after the first interview that needed to be followed up; so had to do a supplementary interview. No threats were issued at that time either.

19. In cross-examination Sgt Ban said he did not know that the accused had made a confessional statement to Lae police. The statement was not given to him. He just framed his questions according to what the accused had told him. He did not forced him to sign either record of interview, did not tell him he had to cooperate and does not recall being told by Chris Kunyanban that 'he will cooperate'. He does not recall putting names on the board in the CID office and does not recall telling the accused to admit to his involvement in the BSP robbery.

20. He agreed that he took the accused to Gum village and to Malolo Lodge and the accused told the police where he stayed. He confirmed that it was initially intended that he would be a witness but then the BSP bank manager, Mathew Manowo, saw the accused one day outside Jomba police station and said 'that's one of them who was guarding us'. Quizzed as to why he had not organised a proper ID parade for the accused, Sgt Ban responded that it was not considered necessary in light of the records of interview and other evidence implicating the accused.

21. Sgt Ban said that he does not know anything about any beatings in Lae. The accused was asked to sign both records of interview, he was not forced to sign them.

2nd State witness: Snr Const George Avali

22. He works in the NCIU at Lae. He assisted in the apprehension of the accused early on 7 July. By that time the police knew of the BSP robbery. They had been informed of it on the night of Saturday 5 July. The accused was behaving suspiciously at Phil's Hotel, Eriku. Snr Const Avali went to the hotel. He apprehended Stanna Koi, who gave the name of the accused, so they went to the house in Eagle Street, in 'hot pursuit'.

23. The accused and his family members were ordered out of the vehicle that the accused was driving. The accused was very drunk and unsteady on his feet. Snr Const Avali instructed his members to search the car and they found a large amount of cash.

24. He took the accused to the police station, and then spent half a day looking for another suspect, Martin Dila, of Siassi-Central origin. He returned to the police station between 6.00 and 7.00 pm. He asked the accused if he wanted to make a statement, which he did. Snr Const Avali was asked if it was true that the accused was taken to Namanula Hill, driven around in a police vehicle and mistreated. None of those things was true, he said.

The accused was taken to Madang on 18 July, using four police vehicles.

25. In cross-examination, he agreed that no search warrant was obtained prior to the search of the accused's house and car but said that this was not necessary as the police were acting in hot pursuit. Asked about the intervening period between when he took the accused to the cell and when he returned, Snr Const Avali was less firm in his denials of mistreatment. For example he said that 'I am not in a position to comment on that' or 'I believe he was in the cell all that time'. Was the accused driven to Malahang? 'I would not know about that', Snr Const Avali replied.

That was the close of the State's case.

The rule on voluntariness

26. For a record of interview to be admitted into evidence, the statements of the accused recorded within it must be made voluntarily. A statement that is made involuntarily is inadmissible. Two issues immediately arise. When is a statement made involuntarily? And who has to prove it: the prosecution or the accused?

When is a statement made involuntarily?

27. A voluntary statement is one made in the exercise of a free choice to speak or to remain silent. It is an essential condition of voluntariness that the accused must appreciate that he or she is under no obligation to speak, that they are free to speak or not to speak (R v Kuras [1964] PNGLR 18).

28. An involuntarily statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means he was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistences or pressure, it cannot be voluntary (The State v Kwambol Embogol (1977) N91). Likewise, if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 (confessions induced by threats) of the Evidence Act, which states:

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.

Onus of proof

29. Does the accused have to prove that the statement was not made voluntarily? Or does the prosecution have to prove that it was made voluntarily?

30. The rule operates in this way. First, the accused must adduce evidence that on the balance of probabilities supports the allegation of involuntariness. If that burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible. If the burden is discharged, the onus shifts to the State to negate the allegations beyond reasonable doubt.

This case

31. The accused has adduced evidence that on the balance of probabilities supports the allegation of involuntariness. He has given vivid details of abuse. The manner in which he gave his evidence makes it believable. His evidence was corroborated by Stanna Koi, who also gave evidence in a manner that suggested he was telling the truth. The onus therefore shifts to the State to disprove the allegations.

32. The person in the best position to disprove them did not give evidence: Inspector Kunyanban. As for Sgt Ban, he was a generally credible witness, he was understandably not in a position to disprove the allegations of beatings in Lae, but some parts of his evidence were difficult to believe. As for Snr Const Avali, there was a large part of the day on Monday 7 July 2008 that he was unable to account for. He admitted that for a number of hours the accused was not in his custody.

33. The State has failed to disprove the allegations of assault and abuse and I therefore find as a fact that the accused was beaten and assaulted by police, in the manner alleged, at Lae on 7 July.

34. Does that mean that the statements made and recorded in his records of interview of 27 August and 20 October were not made voluntarily? It could easily be determined that his confessional statement in Lae was not made voluntarily but the police interviews were at a different time and place. As pointed out by Doherty J in The State v Goi Mubin [1990] PNGLR 99, there might be a sufficient lapse of time after which the effect of threats and intimidation and further violence dissipate.

35. Again, the State bears the onus of proof. The accused has given evidence that he was still being intimidated by Inspector Kunyanban in Madang who was in Madang and saying things that could be interpreted as threats. This was not disproved by the State, despite the opportunity to do so. Given the ferocity of the beatings endured by the accused in Lae, which can be fairly described as torture, it is reasonable to presume that a person in the accused's position would be still scared. I find that the accused's will was overborne. The effect of what happened to him in Lae was not neutralised by him being in a different place and time.

36. I am not satisfied that the State has proven beyond reasonable doubt that when he participated in the two police interviews and signed the records of interview the accused was not overborne by reason of his having been assaulted and threatened in Lae.

The first ground of objection is therefore sustained.

SECOND GROUND OF OBJECTION: UNFAIRNESS TO THE ACCUSED, GIVEN THE ENVIRONMENT IN WHICH HE WAS REQUIRED TO MAKE STATEMENTS

The allegations

37. Mrs Raymond submitted that it would be unfair to allow the confessional statement and the record of interview into evidence, as the police acted improperly in a number of respects. In particular:

•	The environment was not conducive to a fair and free dialogue between the accused and the arresting officer.

•	He was required to undergo a formal interview after he signed the confessional statement, which covered the same ground and was conducted unfairly.

38. The court should therefore exercise its discretion to refuse admission of the documents, Mrs Raymond submitted.

Nature of the unfairness objection

39. It is a different type of objection to the involuntariness objection in ground 1. An objection grounded on unfairness requires the court to take a broader view of all the circumstances in which the incriminating statements and admissions were made. The court makes an assessment of whether any of the accused's human rights (his rights as an accused person set out in the Constitution) were breached; or whether there was any other impropriety in the way that the police investigated the case or dealt with the accused. The question then to ask is: given all the circumstances, in particular the extent and number of breaches of the law or instances of impropriety, would it be unfair to allow the statements to be adduced in evidence? Because voluntariness and unfairness are different types of objections, it is possible that one will fail but the other will succeed (eg The State v Suk Ula (No 1) [1975] PNGLR 123, The State v Joanes Mesak (2005) N2853, in each case an involuntariness objection failed but the unfairness objection succeeded).

40. Another difference between an involuntariness objection and an unfairness objection concerns the burden of proof and the standard of proof. With an unfairness objection, the burden of proving unfairness lies on the accused (the State does not have to prove that the police acted fairly or with propriety). The standard of proof is on the balance of probabilities, not beyond reasonable doubt (The State v Silih Sawi [1983] PNGLR 234; The State v Kevin Everitus [1985] PNGLR 109).

Findings of fact

41. I am satisfied that the defence has proven on the balance of probabilities that:

•	The accused was assaulted and tortured by the police in Lae and denied his constitutional rights.

•	He was intimidated by the presence in Madang of Inspector Kunyanban.

•	He was not given adequate opportunity to get a lawyer.

•	He genuinely feared for his safety and security.

•	The records of interview were based on the confessional statement. I cannot accept Sgt Ban's evidence that he had no knowledge of that statement, which was obtained unfairly as it followed a series of beatings and Snr Cons Avali admitted that no caution was administered prior to the statement being taken.

42. I consider that it was unfair in these circumstances to conduct a full interrogation, in a formal question-and-answer interview, after the accused had signed a confessional statement under duress, without a lawyer being present. It was one of the reasons that the record of interview in Mana Turi's case was ruled inadmissible. Other cases in which the courts have disapproved of the practice of subjecting an accused to a full interview after improperly obtaining a confessional statement include The State v Anton Turik [1986] PNGLR 138, The State v Simon Tanuma [1999] PNGLR 475 and The State v Michael Balana (2007) CR 552 of 2003.

43. In Balana the police took down a confessional statement by the accused without notifying him of his right to remain silent or his Section 42(2) rights, and then took a record of interview. Lay J held that this was unfair to the accused:

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.

44. As I indicated in The State v David Yakuye Daniel (2005) N2869 (where I allowed a record of interview to be admitted, despite it being taken after the accused signed a confessional statement) each case must be assessed on its merits. It is not intrinsically unlawful for a record of interview to follow a confessional statement. Where, however, the accused is not given his Section 42(2) rights prior to the confessional statement, it will inevitably be unfair to require him to undergo a full question-and-answer interview after that, without the police ensuring that the accused has a lawyer present when undergoing the interview.

45. Those were the circumstances prevailing in the present case. I therefore find that both interviews were conducted improperly.

Discretion

46. The court now has a discretion to exercise: to admit, or refuse to admit, the records of interview. I am not obliged to decide, simply because they have been obtained improperly or following a breach of the Constitution, that they are inadmissible (Constitutional Reference No 1 of 1977 [1977] PNGLR 362). I must consider the nature, seriousness and extent of the improprieties and breaches of constitutional rights, and then decide whether, in all the circumstances, it would be unfair to allow the statements to be adduced in evidence.

47. I reiterate that it has been proven that the environment was not conducive to free and fair dialogue between the accused and the interviewing officer and that the accused was required to undertake a formal interview after having already signed a confessional statement, which was obtained unfairly, in that it was extracted from him after having been assaulted, tortured, and then not given a constitutional caution.

48. In these circumstances, it is incumbent on the Court, in order to enforce the accused's right to the full protection of the law, to exercise its discretion to refuse to admit the two records of interview into evidence.

49. The second ground of objection is therefore sustained.

RULING

(1)	Objection to the admission into evidence of the records of interview of the accused, Peter Allan Popo, dated 27 August and 20 October 2008 on the ground of involuntariness is sustained.

(2)	Objection to the admission into evidence of the records of interview of the accused, Peter Allan Popo, dated 27 August and 20 October 2008 on the ground of unfairness is sustained.

(3)	Neither document shall be admitted into evidence.

Ruling accordingly.

___________________________

Public Prosecutor: Lawyer for the State 
Dotaona Lawyers: Lawyers for the 1st Accused 
Public Solicitor: Lawyer for the 2nd, 3rd, 4th, 5th, 6th, 9th & 14th Accused
Public Solicitor: Lawyer for the 7th, 12th & 13th Accused 
Daniels & Associates: Lawyers for the 8th, 10th & 11th Accused