State v Hasu [2018] PGNC 495; N7595 (3 October 2018)

N7595

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 179 of 2018

STATE

V

TONY HASU

Waigani: Berrigan J
2018: 18, 21, 24 September & 3 October

CRIMINAL LAW– Evidence – Voluntariness of a confessional statement in the form of a statutory declaration

Cases Cited:
Papua New Guinea Cases

Wendo v R [1963] PNGLR 242
R v Tovarula [1973] PNGLR 140
R v Kar Moro [1975] PNGLR 14
The State v Peter Joseph Hayden, unreported, 10 November 1976, N70A
The State v Kwambol Embogol (1977) N91
The State v Allan Woila [1978] PNGLR 99
Gasika v The State [1983] PNGLR 58
The State v Kusap Kei Kuya [1983] PNGLR 263
Awoda v The State [1984] PNGLR 165
The State v John Yambra Pai (1986) N535
Epeli Davinga v The State [1995] PNGLR 263
The State v John Michael Awa & Others CR No 905 of 1998, 15 May 2000
The State v David Yakuye Daniel (2005) N2869
Bukoya v The State (2007) SC887
The State v Balana [2007] unreported, PGNC 12, 21 March 2007
The State v Ereman Donald Kanailom (2008) N3273
James Paru v The State (2017) SC1632

Overseas Cases

R v Zaveckas (1969) 54 Cr App R 202
R v Howden-Simpson [1991] Crim LR 49 CA
R v Bertrand [2008] VSCA 182; [2007] 188 A Crim R 223
McPherson v R [1981] HCA 46; (1981) 37 ALR 81
R v Rennie (1981) 74 Cr App R 207

Counsel

Ms T. Aihi with Mr T. McPhee, for the State
Mr E. Sasingian, for the accused

DECISION ON VOIR DIRE

3 October, 2018

1. BERRIGAN J: The accused is charged with one count of dishonestly applying to his own use and to the use of others K20,000, the property of the National Capital District Commission (NCDC), contrary to S.383A(1)(a) and (2)(d) of the Criminal Code (Ch. 262) (the Criminal Code). It is alleged that the monies were intended for the National Police Women’s Conference which was being organised by RPNGC Inspector Jennifer Wakore.
   
2. On opening its case, the State sought to tender a number of documents by consent, including a statutory declaration by the accused. Counsel for the accused objected to the tender of the statutory declaration on the basis that it was obtained from the accused by the complainant, Inspector Wakore, under force. The State then informed the court that the document was provided by the accused to the investigating officer.
   
3. In response to a question from the bench, defence counsel confirmed that he was objecting to the admission of the declaration on the ground that it was not given voluntarily but “under force”. On that basis it appeared to me that there was a real question to be determined as to admissibility and that this could only be resolved by holding a voir dire: See McPherson v R [1981] HCA 46; (1981) 37 ALR 81 at 88. See also Bukoya v The State (2007) SC887; Awoda v The State [1984] PNGLR 165; and Epeli Davinga v The State [1995] PNGLR 263 regarding the overall duty of the trial judge to ensure that only legally admissible evidence goes in to the record of the trial.
   
4. The matter was accordingly adjourned to allow counsel for the accused to file a Notice of Voir Dire stating the grounds of objection and for the State to prepare and call additional witnesses if necessary: James Paru v The State (2017) SC1632.
   
5. The Public Solicitor filed a Notice of Voir Dire on 18 September 2018 alleging that the accused was under undue influence and in fear of being imprisoned at the time he signed the statutory declaration.
   
6. An amended notice was filed on 24 September challenging the translation of Question and Answer 13 of the English version of the record of interview as fabrications. This is not a matter for the voir dire. The admissibility of the record of interview is not challenged and even if it were, dispute as to whether or not certain parts were fabricated is not an issue for determination on a voir dire: The State v John Yambra Pai (1986) N535 and The State v Ereman Donald Kanailom (2008) N3273.
   

Evidence

7. The State called 4 witnesses. The first and most critical witness for the State was Inspector Jennifer Wakore, Training Coordinator, Bomana Training College. Not only was Inspector Wakore the accused’s effective boss at the Bomana Training College, she was the principal complainant in the case against him.
   
8. Inspector Wakore gave evidence that she attended the Boroko Criminal Investigation Division (CID) on 20 November 2017 following a call from the accused’s wife that he had been picked up by the police. There she found the accused with Detective Constable, Raphael Kurugl, the investigating officer at the time. She says that the accused had made several promises prior to that day to repay the monies the subject of her complaint but had failed to do so. On that basis she asked the accused to provide a written assurance in the form of the statutory declaration. The statutory declaration was drafted by the investigating officer. She says the accused agreed and was taken to the Police Legal Officer’s Office where he signed the statutory declaration in the presence of the Chief Inspector, Herman Habak, the Divisional Legal Officer, Detective Constable Kurugl, the investigating officer, and herself.
   
9. Inspector Wakore struck me as an honest witness. Whilst she maintained that she saw no fear in the accused, she willingly agreed that the whole idea was hers and not the accused’s. It was she who demanded a written assurance from the accused. It was she who asked for the statutory declaration. She also willingly agreed that the accused was not allowed to leave the police premises that morning and that she would have had him immediately arrested and locked up if he did not sign the statutory declaration. He was released without charge that day because he signed the statutory declaration.
   
10. Detective Constable Kurugl gave evidence that following the failure of the accused to respond to prior invitations to attend for an interview, he picked the accused up from his residence at Bomana Police College on 20 December 2017 and took him to CID at Boroko Police Station. He says he was preparing to charge him when the accused offered to pay certain monies. He then called Inspector Wakore to come to the office and sought advice from the Police Legal Officer who suggested a statutory declaration. Later on he said it was the accused’s idea to provide a statutory declaration. Neither pieces of evidence align with that of either Inspector Wakore or Chief Inspector Habak. Detective Constable Kurugl confirmed that if the accused had not given the statutory declaration he would have been locked up; and that once the accused signed the statutory declaration he did not arrest him but let him go.
    
11. Sergeant Lawrence Torres was also present on the day and was involved in bringing the accused to the station. He said that it was the accused who came up with the idea to make the statutory declaration but on the evidence of the other witnesses it does not appear that he was an actual party to the discussion between the accused and Inspector Wakore and Detective Kurugl or to the meeting in Chief Inspector Habak’s office.
    
12. Chief Inspector, Divisional Legal Officer, Habak says that on that day he was in his office at Boroko Police Station when Detective Constable Kurugl brought in the accused and the principal complainant, Jennifer Wakore, with a statutory declaration for him to commission. He said to the accused: “It’s a criminal offence that’s been committed, or alleged to have been committed and now you make the statutory declaration.” He also said: “I am your lawyer. You make an undertaking to repay. That is okay.” He then signed it, asked the accused to sign it, stamped it and the others walked out. Whilst he says there was no force or threat made to the accused in his presence, he agreed that the accused made the declaration because he did not want to get arrested and locked up.
    
13. The accused gave evidence on the voir dire that on 20 November 2017 he was apprehended by the police at his home and brought to the Boroko Police Station. Inside the police station he felt intimidated by the presence of many other police officers on duty. He was not free to walk about. He says that after Inspector Wakore arrived at the station she put pressure on him and told him that he had to repay the money or she would have him arrested. Inspector Wakore told the investigating officer to draft the statutory declaration and they both told him he had to sign it. He signed the statutory declaration because he was pressured and intimidated by Inspector Wakore and the investigating officer and because he was afraid they would have him arrested and locked up. After he signed the declaration he was released.
    

Voir Dire

14. The Supreme Court in Gasika v The State [1983] PNGLR 58 held that on a voir dire to determine the admissibility of a confession the matters for determination are: (a) the question of its voluntariness; and (b) whether in all the circumstances of the case it would be unfair to admit the material against the accused. Apart from the particular discretion to exclude evidence of a confessional statement, a trial judge has a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value.
    
15. It is well established in this jurisdiction that an out of court statement or confession is not admissible unless it is voluntary. Section 28 of the Evidence Act 1975 (Confessions Induced by Threats) 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.”

Furthermore, “the common law is also in force ... and under that law whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or remain silent, it must be shown to have been so made before it can be admitted in evidence against him.”: Wendo v R [1963] PNGLR 242 to 245 per Dixon CJ, Owen and Tailor JJ; The State v Kwambol Embogol (1977) N91. See also The State v Balana [2007] PGNC, 12, 21 March 2007.

16. The onus of proving that a confession is voluntary rests with the prosecution and the standard of proof required to establish voluntariness is "proof beyond reasonable doubt": The State v Allan Woila [1978] PNGLR 99; see also The State v Kusap Kei Kuya [1983] PNGLR 263. (As to the shifting burden of proof, see The State v John Michael Awa & Others CR No 905 of 1998, 15 May 2000 applied in The State v David Yakuye Daniel (2005) N2869.)
    
17. Upon hearing the voir dire, the judge may read the statement of confession in considering the credibility of conflicting evidence: R v Tovarula [1973] PNGLR 140; and in the exercise of his general or residual discretion: Gasika v The State, supra. The better practice, in most cases, is for the trial judge to hear the evidence of both sides on the voir dire, and then to consider, with the help of any submissions from counsel, whether some assistance might be obtained from looking at the document: Gasika v The State, supra.
    

Analysis

18. As part of its argument, the accused has raised a breach of Section 9(1) of the Oaths, Affirmation and Statutory Declaration Act, 1962 on the basis that the accused did not physically draft the statutory declaration himself. That is not my understanding of the provision and, as the State points out, statutory declarations are often properly drafted by lawyers and others for consideration by the proposed deponent. In any event, a breach of the Act is not the determinative issue for the purposes of this voir dire.
    
19. The State also takes issue with the submission that the accused was intimidated by the fact that he was in the presence of many police officers. I agree that the mere presence of other police officers would not normally be sufficient to raise the issue of voluntariness.
    
20. Similarly, the fact that the accused might have feared arrest would not of itself be sufficient. As the Court of Appeal (England and Wales) said in R. v. Rennie (1981), 74 Cr App R 207 at p. 212:
    

“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.”

21. The State relied heavily on the fact that there was no actual or threatened violence. It has asked me to distinguish The State v Balana, supra, in which a record of interview was excluded following physical abuse, a long period of uncharged incarceration and express denial of rights, as being far removed from the circumstances of this case.
    
22. I agree that this case is quite different from that in The State v Balana. It is also true that the vast majority of challenges to the voluntariness of statements in this jurisdiction concern confessional statements or statements contained in a record of interview following violence or threats of violence. Violence, however, is just one means by which a person’s will may be overborne. It may also be achieved by other types of threats and even by promises: The State v Kusap Kei Kuya, supra.
    
23. In The State v Peter Joseph Hayden, unreported, 10 November 1976, N70A the confession of a sophisticated man was thrown out following instructions by police that: “We will now interview you. I shall ask the questions, you will answer, and Constable S will type the answers on the typewriter”. These were regarded as words of compulsion that implied a threat of prejudice if not answered. (Cited in The State v Embogol, supra).
    
24. Other jurisdictions have also considered what might raise a reasonable doubt as to the voluntariness of a statement. In R v Zaveckas (1969) 54 Cr App R 202 the defendant asked: “If I make a statement, will you grant me bail now?”. The officer’s reply: “Yes” was held by the Court of Appeal (England and Wales) to be an inducement. In R v Howden-Simpson [1991] Crim LR 49 CA, the police told a defendant that if he confessed they would proceed on just two specimen counts, if not they would bring separate charges for each offence. The Court of Appeal (England and Wales) held that the statement should have been excluded.
    
25. More recently in R v Bertrand [2008] VSCA 182; [2007] 188 A Crim R 223 the applicant challenged the admissibility of a record of interview on the basis that it was provided following an implicit threat that the applicant would be kept in custody if he refused to answer questions. The applicant had been cautioned, spoken to a legal practitioner and received legal advice. He then agreed to be interviewed. During the interview he said that it was a serious offence and he wasn’t sure if he should say anything. He then asked the interviewing officer whether, if he didn’t say anything, he would be locked up or allowed to go home that day. In response the officer made it clear that it was not a matter for him to decide and reiterated the earlier caution. He then suspended the interview to allow the accused to obtain further legal advice. The Supreme Court of Appeal of Victoria dismissed the appeal finding it was difficult to see how what was said by the officer could amount to a threat, and if it did it had been dissipated by reason of intervening events.
    
26. Returning to the present case. No evidence was led to show that the accused had been informed of his rights pursuant to s. 42(2) of the Constitution. There is no evidence that he had been cautioned. The accused, a Senior Constable, is an experienced police officer of some 20 years’ standing and was well aware of the nature of the charge against him. The mere lack of a caution in those circumstances would not render the statement involuntary. Nevertheless, regard may be had to the surrounding circumstances to ascertain whether the accused spoke because of some importuning or threat: The State v Kwambol Embogol, supra.
    
27. Whilst I agree with the State that there are some anomalies in the accused’s evidence, a number of matters are clear. The accused was in custody. He had been taken from his home that morning and was not free to go. The investigating officer was preparing to charge him. As the principal complainant, Inspector Wakore was an interested party. She was also a senior police officer and the accused’s immediate supervisor. She went to the police station on hearing from the accused’s wife that he had been picked up and effectively took over from the investigating officer. On the basis of prior dealings with the accused as the principal complainant, she told the accused that he had to repay the moneys the subject of her complaint or she would have him arrested and locked up. She demanded that he provide a written assurance in the form of the statutory declaration for this purpose, the terms of which she dictated to the investigating officer. Had the accused refused to sign the statutory declaration she would have had him immediately arrested and locked up. On the evidence of all concerned, the accused was well aware of this.
    
28. In the circumstances, I find that there was at a minimum a clear, albeit implied, threat of prejudice to the accused if he refused to sign the statutory declaration.
    
29. I do not wish to speculate upon what would have been required to remove the inducement, other than to say that what happened in the Divisional Legal Officer’s office was not sufficient.
    
30. The State placed considerable reliance on the failure of the accused to raise the voluntariness of the statutory declaration in his record of interview as evidence of recent invention. The interview was conducted some 6 months later, on 7 June 2018, and its admissibility is not challenged. The accused was not cross-examined on this issue. In any event, whilst this case is very different from that of R v Kar Moro [1975] PNGLR 14, the general principle remains that the failure of an accused to complain, when given the opportunity, that a confession has been obtained by force or threats, does not necessarily outweigh other factors suggesting the confession was so obtained.
    
31. In the circumstances I cannot be satisfied beyond reasonable doubt that the statutory declaration was voluntary and I rule it inadmissible against the accused.
    

Orders accordingly.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused