State v Joe (No.1) [2021] PGNC 543; N9389 (4 October 2021)

N9389

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 851 OF 2019

THE STATE

V

KELLY JOE

(NO. 1)
Waigani: Ganaii, AJ.
2021: 29^th, 30^th September, 04^th October

CRIMINAL LAW – Evidence – Admissibility of Record of Interview – Accused was Threatened and Assaulted - Accused made Verbal Admissions but No Confessional Statement Obtained - At time of Interview, Threat no longer Real – Fear had Dissipated – Failure to administer Constitutional right under Section 42 (2) – Exercise of Discretion in favour of Accused - ROI not admitted

Held:

(1) Where the onus shifts to the State to negate the allegations by proof beyond

reasonable doubt and the State had failed to negate the allegations of Police impropriety that the accused was threatened, assaulted, locked in the cell for four days without a charge, and not brought before a court, the benefit of the doubt was given to the accused. State v John Michael Awa and Others Cr No 905 of 1998, 15 May 2000 and State v Paru No 1 of 2021) N9108, CR 289 of 2012, Waigani: Berrigan J, 2021: 2^nd, 3^rd June and 15^th July) are applied. The accused was indeed threatened and assaulted prior to the interview.

(2) The three main matters for determination by the court on the admissibility

of confessions are: firstly, whether the admissions were voluntary; if they are not, they are not admissible and that is the end of matter. If they are, secondly, whether in all the circumstance of the case it would be unfair to admit that material against the accused; this involves the exercise of the court’s discretion. Thirdly, whether in the exercise of the court’s residual discretion, it can disallow the admittance of a confessional material where that material has a more prejudicial effect on the mind of the judge than the effect of proving the issue at hand. (The SC case of Uda Liki Gasika v The State [1983] PNGLR 58 (15 March 1983), Paru v The State (2017) SC 1632 applied.

(3) On the question of voluntariness, as a matter of fundamental principle, and as adopted from common law into this jurisdiction, an out of court statement or admission is not admissible until it is shown that it was made ‘in the exercise of a free choice to speak or remain silent’. See The State v Balana [2007] PGNC 12 and Paru v The State (supra).

(4) In the exercise of its discretion, the court can exclude the admission of a confession despite finding that the confession was made voluntarily. That will be so if the accused shows that it is unfair in the circumstance of the case to admit it. R v Lee [1950] HCA 25; 82 CLR 133; R v Wendo [1963] PNGLR 217 at 232; Gasika, Paru (supra).

(5) Where there is no evidence on the nature of the threats, where the injuries were not life threatening, and where no further threats and assaults were issued or effected, the fear held by the accused from the threats and assault issued and effected four days prior to the interview had dissipated. Any admissions in the ROI were voluntary. The court is mindful of the correct legal position that the issue with respect to voluntariness is not the propriety of the police, but the effect of police conducts in all the circumstances on the will of the accused. In determining this issue the Court has had regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made. Refer to Brennan J in Collins v R [1950] HCA 25; (1980) 82 CLR 133 at 149, applied in Paru (supra).

(6) There had been breaches of s. 37 (1) of the Constitution (the right to full protection of the law), and s. 42 (2) and (3) rights of persons arrested or detained. The four days detention without being advised of his rights especially to communicate with a family member, a friend or a lawyer, without being brought to Court and without being interviewed and charged, in the circumstance where the accused is an unsophisticated villager, all of the actions and omissions by those in authority amounted to serious breaches of the Constitution and impropriety that warranted the exercise of the Court’s discretion in favour of the accused. Reference No 1 of 1977 (supra) State v Dakoa [2009] PGNC 8; N3586 (9 February 2009) and State v Dauma (No 1) N9135, Cr No 477 of 2019 (13^th September 2021) applied.

(7) In the exercise of the Court’s discretion in favour of the accused, the record of interview of the 20^th of December 2018 is not admitted into evidence.

Cases Cited:
Papua New Guinea Cases

Gasika v State [1983] PNGLR 58
Maino v The State [1977] PNGLR 216
R v Tovarula [1973] PNGLR 140
R v Wendo [1963] PNGLR 217
Schliebs v Singh [1981] PNGLR 364
SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362
State v Balana [2007] PGNC 12
State v Dakoa [2009] PGNC 8; N3586
State v Dauma (No 1) N9135, Cr No 477 of 2019 (13^th September 2021)
State v Goi [1990] PNGLR 29
State v James Paru (No 1 of 2021) (2021) N9108
State v John Michael Awa and Others Cr No 905 of 1998, 15 May 2000
State v Mana Turi [1986] PGNC 55; [1986] PNGLR 221; N579
State v Mesak [2005] PGNC 99; N2853
Paru v The State (2017) SC 1632

Overseas Cases

Collins v R [1950] HCA 25; (1980) 82 CLR 133 at 149

Cornelius v. The King [1936] HCA 25; (1936) 55 C.L.R. 235 at p. 247
McDermott v R [19 48] 76 CLR 501 @ 511
R v Lee [1950] HCA 25; 82 CLR 133

The King v. Lee and Others [1950] HCA 25; (1950) 82 C.L.R. 133

Laws Cited

Criminal Code, Chapter No. 262, Section 229A
Evidence Act, Chapter No. 48, Section 28
The Constitution, Section 37, 42

Counsel

Ms Mercy Tamate, for the State
Mr David Kayok, for the Accused

DECISION ON ADMISSIBILITY OF THE RECORD OF INTERVIEW

04^th October, 2021

1. GANAII, AJ: The accused Kelly Joe is indicted on three counts of sexual penetration of Child under section 229A of the Criminal Code. This is a ruling on a voir dire conducted into the admissibility of the accused’s Record of Interview (ROI).
   

2. The defence objected to the tender of the ROI. Through the Notice of Voir Dire, and in summary, the grounds relied on are that the answers in the ROI contained admissions obtained after the accused was threatened, assaulted, intimidated and forced to make admissions four days prior to the interview. The defence argued that as a result the accused was under duress and his will was overborne at the time of the conduct of the interview and when he made admissions. Defence also agued that the accused’s right under section 42 (2) of the Constitution was not administered.

Particulars of the Objection

3. The Notice of Voir Dire was filed on the 07^th of September 2021. A summary of the allegations is:

1. On the 16^th of December 2018, when the accused was taken to Boroko

Police Station, he was beaten up by uniformed and armed policemen who then forced him to make admissions. They booted the accused and used the butt of the gun to hit his head and face. As a result of the assaults, the accused suffered serious injuries to the head and he was he was bleeding profusely;

2. The accused was threatened to be shot if he did not admit. He was assaulted

continuously until he made admissions;

3. The accused was in pain and was bleeding when he was locked in the

Boroko Metropolitan cells without medication or treatment for his injuries and without being charged for four days;

4. The accused was not accorded his rights under section 42 (2) of the

Constitution to see or communicate with a family member, a friend or a lawyer and was locked up without a charge for four days; and

5. On the 20^th of December 2018, when the accused was interviewed by

Policewoman (PW) Esther Bavi in the CID office, at the Sexual Offences Squad, the corroborator Adriana Kamasunga was not present. The conduct of the interview was uncorroborated.

Issue

4. The main issue is whether the accused has provided sufficient evidence to raise the question on the grounds of his objections, and if so, whether the prosecution has proven beyond reasonable doubt that the admissions in the record of interview had been obtained following due process.

Law

5. Before I discuss some case precedents on the question of voluntariness, s 28 of the Evidence Act states:

"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."

6. In State v Balana [2007] PGNC 12; CR 522 of 2003 (21 March 2007), the Court held that where it could not be satisfied that the confessional statement was not induced by the bashing the accused received that morning the confessional statement was inadmissible pursuant to Evidence Act Section 28; applied in State v Dauma (No 1) N9135, Cr No 477 of 2019 (13th September 2021).

7. When the defence raises objection to any material containing admissions, the burden of proof is on the accused on the balance of probabilities to adduce evidence to support the claim that an admission has been obtained involuntarily. If that burden is discharged the onus shifts to the State to negate the allegations by proof beyond reasonable doubt: State v John Michael Awa and Others Cr No 905 of 1998, 15 May 2000 is applied and applied in State v Paru No 1 of 2021) N9108, CR 289 of 2012, Waigani: Berrigan J, 2021: 2^nd, 3^rd June and 15^th July).

8. The SC case of Uda Liki Gasika v The State [1983] PNGLR 58 (15 March 1983), establishes that in a voir dire, the three main matters for determination by the court on the admissibility of admission are: firstly, whether the admissions were voluntary; if they are not, they are not admissible and that is the end of matter. If they are, secondly, whether in all the circumstance of the case it would be unfair to admit that material against the accused; this involves the exercise of the court’s discretion. Thirdly, whether in the exercise of the court’s residual discretion, it can disallow the admittance of a confessional material where that material has a more prejudicial effect on the mind of the judge than the effect of proving the issue at hand. (Paru (supra) applied).

9. On the question of voluntariness, as a matter of fundamental principle, and as adopted from common law into this jurisdiction, an out of court statement or admission is not admissible until it is shown that it was made ‘in the exercise of a free choice to speak or remain silent’. See The State v Balana (supra) and Paru v The State (2017) SC 1632.

10. The principle of exercise of free will is one that connotes to fairness. Consequently, the exercise of free choice means that an admission by an accused is obtained freely and voluntarily. Where an admission is not free and voluntary so that the will of the accused was overborn, any admission obtained by a person in authority through duress, intimidation, persistent importunity, or sustained or undue insistence or pressure becomes unfair to admit. Refer to Paru (supra), citing Dixon J’s decision in McDermott v R [19 48] 76 CLR 501 at 511. Where a statement is not voluntarily made, it becomes unfair to admit the material against the accused.

Discretionary Exclusion of a Voluntary Admission

11. In the exercise of its discretion, the court can exclude the admission of a confession despite finding that the confession was made voluntarily. That will be so if the accused shows that it is unfair in the circumstance of the case to admit it. R v Lee [1950] HCA 25; 82 CLR 133; R v Wendo [1963] PNGLR 217 at 232; Gasika, Paru (supra). The court can also refuse admission on grounds of public policy and on the question of prejudice to the accused. (Gasika, supra).

12. In SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362, (Per Frost C.J. with whom Kearney J. agreed), the court held that:
“..the National Court under s. 57(1) of the Constitution, in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of s. 42(2) of the Constitution should be excluded from evidence in the trial”.

13. Per Williams J, in SCR No 1 of 1977 (supra), if in a particular case it appears that there has been a breach of s. 42(2) then this is a matter for the trial judge to take into account together with all the circumstances of the case when exercising his discretion whether or not to admit evidence obtained following the breach. Refer to Berrigan J at paragraphs 23, 25 and 26 in Paru (supra).

14. In State v Mesak [2005] PGNC 99; N2853 (26 April 2005), in relation to the issue of objection to the admissibility of the record of interview, the Court, in citing the case of State v Mana Turi [1986] PNGLR 221; expressed:

“In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness, regard should be had to any breach of the rights given by the Constitution, s 37 (1), (the full protection of the law) and s 42 (2), (3) and (4) (the rights of persons arrested or detained) judged according to the degree of seriousness or impropriety involved.”

Reading of Confession or Admission

15. On a voir dire, the judge may read the statement of confession in assessing the credibility of the accused and the interviewer: R v Tovarula [1973] PNGLR 140 applied; and in the exercise of his or her 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 and Balana (supra).

The Evidence
Prosecution Case

16. State called the Arresting Officer, First Constable (F/C) Ester Bavi, who gave sworn oral testimony. Her evidence is summarised here.

Examination in Chief

17. The case Investigating Officer, F/C Esther Bavi is attached to the CID, Sexual Offences Squad of Boroko Police Station. Her evidence is that she conducted the interview on the accused at the Boroko Police Station, Sexual Offences Squad. The usual procedures were followed. Firstly, she introduced herself and the police corroborator to the accused. She then said, ‘if the defence lawyer was present, she would have introduced him’. She didn’t do that because there was no lawyer present. She then went ahead with the interview by cautioning the accused. She informed him of his Constitutional rights and he understood. F/C Bavi asked questions and the accused responded. After completing all the questions, she asked the accused if he had anything to say. He said no and signed the ROI.

18. The contents of the Notice of Voir Dire were read to F/C Bavi in cross-examination and she said she had no idea that the accused was assaulted on the 16^th of December 2018. At that time, she had no contact with the accused nor anyone else and had no knowledge that he was assaulted by policemen. She said she was not aware that the accused was left in the cells for four days and that he was suffering from serious injuries.

19. F/C Bavi saw the accused for the first time on the 20^th of December 2018. Prior to that date she had not known that the accused was in the police cells. She saw that the accused person’s physical appearance was normal. There were no bruises on his body, no scars on his head, face or body and he appeared fine. There were no blood stains on his clothes.

20. F/C Bavi said the police corroborator P/W Adriana Kamasunga was present all though out the interview. She described their sitting positions as them all sitting together during the interview. During the interview, the accused did not appear scared or afraid as he was smiling through-out the duration of the interview. She said they did not issue any threat or assault nor intimidate him. The accused did not appear to be under duress.

21. This witness described the office environment as having her OIC as the only male officer and all other officers being females or policewomen. Her office space was an open workstation and not an enclosed cubicle. There were no policemen present at the time of the interview. There were six Policewomen attached to their unit and they were attending to their cases. At her workstation, there were only three of them seated. During the conduct of police interview, they put up a notice outside on the door indicating that the interview was in progress and no one was allowed inside.

Cross-Examination

22. In cross-examination, the witness said she received the crime report for this case on the 18^th December 2018. On the 20^th December 2018, she took the accused from the holding cells to her office at the Boroko Police station for questioning. She came to know that the accused was in the cells on the morning of that same day, i.e., on the 20^th December 2018. She had not known that the accused was taken into the cells on the 16^th December 2018. She said she had not known that the accused was in the cells for a number of days until on 20^th December 2018 when she took him in for questioning. At the interview, she saw that the accused appeared fine when she got him out of the cells for the interview. The witness had not known that the accused was in the cell for four days without a charge. She also did not know which policemen detained him in the cells. She was told only by the cell guards that the accused was in the cell.

23. When it was put to her that she knew that the accused was assaulted, she said no and maintained her evidence that she didn’t see any injuries to his face and body when she interviewed him. She did not agree with the defence that the corroborator was not present. She denied knowing that the accused was in the cells for four days till the 20^th December 2018. She did not know if the accused was not taken for medical treatment for his injuries. Finally, she did not agree with the defence case that the accused was not thinking straight during the interview and said he was smiling throughout the duration of the interview.

Re-Examination

24. In re-examination, the witness said it was not normal practice to ask for information on how long an accused person was kept in the cells for. But when asked, she said she did enquire but was not given any information on how long the accused was detained in the cells for before she took him out to conduct the police interview. The shift guards who had detained the accused had gone home after their shift. The witness said again that when she went to get the accused for the police interview, he appeared fine, he smiled and he happily followed her to the interview room.

Defence case

25. The accused gave sworn oral evidence. A summary of his evidence is restated.

Examination in Chief

26. In examination in chief, the accused said he had come from the village and lived with his sister at Nine Mile, Bush Wara at the time of his arrest. On the 16^th of December 2018, his sister took him to the Waigani Police Station. They went to the Police Station for the accused to explain himself as he heard his name being mentioned for allegations he is now in court for. Police asked him questions about the allegations. They then assaulted him badly and locked him up in the cell. He was detained for four days before his interview, arrest and charge.

27. The accused said after he was assaulted, he was locked up in the cells for four days and was never given an opportunity to contact his family members or they were not allowed to visit him nor taken to the hospital or before a court. On the 20^th December 2018, the accused was taken out of the cell by the case investigating officer F/C Bavi for an interview in the CID office. In the CID office, at the Sexual Offences Squad, the accused said there were police officers there but they were scattered. F/C Bavi conducted the police interview. Other officers were on their own tables. During the interview, the accused said the corroborator was not present. There was only him and F/C Bavi.

28. The accused said he had previously been threatened and assaulted by Police officers and sustained the following injuries namely: broken right side of the mouth when hit with gun but; hit on right eye, he was bleeding and blood covered face. He said his injuries were not treated. He washed his injuries with water. At that time, he was feeling bad and coughing out blood. The accused said during the interview, persons inside the CID office told him to tell the truth and he felt afraid when he gave his answers because he had already been threatened and assaulted.

Cross-examination

29. In cross-examination, the accused said he brought himself to the Police Station to clear his name as he was innocent. His name was called for nothing by relatives of the child victim so he went to clear his name. He went to the Waigani Police Station with his sister Maggie Michael. His sister lives at Gerehu and she drove to Makana, Nine Mile, picked him up in her vehicle and drove him to the Waigani Police Station. Upon arrival at the Police Station, the first thing he did was that he went to the counter and informed the Policeman about his story. That policeman did not introduce himself and the accused did not ask for his name. The accused said as he was telling his story to the policeman, some other policemen came and told him that he was lying and they assaulted him. Of those policemen who assaulted him, some were in uniform and others were not.

30. The accused said his sister was outside the police station and she did not know that the Policemen assaulted him inside. After the assault, the policemen locked the accused in the cell for five days, at the Waigani Police Station without a charge. After five days, the accused said F/C Bavi went and took him to the CID office for the interview. When F/C Bavi took the accused for the interview, the accused said he did not tell her what happened to him. He agreed that F/C Bavi picked him up at Waigani and took him to the Boroko Police Station. The accused then said she took him to the CID office at Waigani Police Station and not at CID Boroko Police Station.

31. The accused agreed that earlier on he had told his lawyer that on the 16^th of December 2018, he was kicked with boots, almost loosing a tooth, gun butted on the head sustaining a deep cut on his upper lip and injured on his right eye. The first time he told his lawyer about the assault was when the lawyer saw him at Bomana CIS. He said that was when Justice Mogish presided in his case and another lawyer saw him. It was before counsel Mr Kayok from the Public Solicitors Office got instructions from him. When he first told the first lawyer about the assault, the lawyer did not do anything. He agreed that after the assault on the 16^th December 2018, till when he saw F/C Bavi, he was not assaulted further.

32. When it was put to him that the police never assaulted him at the Waigani Police Station, he said they assaulted him. When it was put to him that when F/C Bavi went to get him, she didn’t see any injuries on him, he said, he was injured for five days and his injuries dried up. He said his skin dried up whilst in the cell for the four days. When it was put to him that when Constable Bavi conducted the interview, he freely gave his answers and he was not threatened or intimidated, he said he was in fear when he gave his answers. He agreed that the corroborator was there but she was a bit further away and F/C Bavi was near him. He also agreed that during the interview there were no policemen present. There were other Policewomen who talked hard to him and were shouting at him.

Re-examination

33. In re-examination the accused said he was locked up at the Waigani Police Station, taken into an office at the back of cell and interviewed by the Police.

Defence Submissions

34. Defence submitted that the admissions made by the accused during the interview, and as contained in the ROI were made because of the assault on him and in fear of being further assaulted. The accused was interviewed after being threatened, assaulted by Police Officers and detained for four days without a charge. He said he was in pain, under duress and in fear of his life at the time the interview was conducted.

35. Further, Defence submitted that the accused’s Constitutional rights were not administered when he was not given any opportunity to speak to a family member, a friend or a lawyer. The answers or admissions he made therefore were not made voluntarily and fairly. The grounds that the defence relied on were that his section 42(2) Constitutional rights were breached when he was locked up for four days without a charge and whist injured. The ROI was influenced by threat and assault effected on him days earlier.

36. Defence also submitted that the test for admission of ROI is whether it was made voluntarily. Evidence of any assault raises doubt on the reasonableness of the voluntary admission. Defence relied the case of Balana (supra), among others and submitted that the accused is entitled to a Constitution section 42(2) caution immediately on being brought to the police station; the accused is entitled to real efforts from the police to obtain a visit from his sister and there was no evidence this had been done; and where the court could not be satisfied that the confessional statement was not induced by the bashing the accused received that morning, consequently the confessional statement was inadmissible pursuant to Evidence Act, Section 28. Defence submitted that where the Constitutional rights were not administered, the ROI cannot be admitted against the accused.

37. On the evidence, Defence submitted that the accused was assaulted prior to the interview and was not in a proper state of mind to be interviewed. The corroborator was not present or was seated away from them. Other Policewomen were present and they shouted at him and forced him to make admissions. When he was taken in, he was in fear of his life, his mind was overborne at the time of the interview.
38. Defence also submitted that there was no real opportunity given to the accused to talk to a family member, a friend or a lawyer, and that was a breach of his right under s 42 (2) of the Constitution. He was detained in holding cells for five days without a charge. Defence sought that the ROI be not admitted into evidence for these reasons.
State Submission

39. The particulars of the Voir Dire contained in the Notice of Voir Dire was insufficient. The state was not able to call appropriate witnesses to disprove the allegations. The State called only the case investigating officer.

40. On the allegations raised by the accused, F/C Bavi did not notice anything about the accused that required her to assist him to the hospital to seek medical help. Her evidence is that the accused was arrested on the 16th of December 2021, then interviewed on the 20th December 2021. There was no credible evidence from the accused.
41. Prosecutions submit that the evidence of F/C Bavi is reliable. The accused was never assaulted; nor threatened and there was no duress. All three persons were present at the police interview. F/C Bavi recorded the questions and answers and all three persons signed. She said the accused was smiling throughout the interview and there were no evidence demonstrating the accused to be threatened or under duress. The normal process of interviewing suspects was followed. F/C Bavi placed a notice on the door of the interview room indicating that the police interview was in progress.
42. Prosecutions relied on the principle in the case of State v Goi [1990] PNGLR 29 and submitted that the State had negated the doubts on involuntariness and unfairness of the conduct of ROI and submit that it was obtained voluntarily. F/C Bavi’s evidence is that the lawyer was not present and the accused agreed to go on with the interview. He was given his Constitutional rights and cautioned.
Defence Reply
43. Defence reply submission was that F/C Bavi said there was introductions made but she failed when she did not explain if the accused was told to see a lawyer of his choice and that no real opportunity was given to the accused to do that.
Application
Purpose of Voir Dire
44. This voir dire is conducted to ascertain whether or not the accused’s admissions would be rendered inadmissible due to the effects of the allegations of threats and assaults on him and the effects of the exercise of discretion due to a breach of his constitutional rights under section 37 and 42 of the Constitution by persons in authority.
Understanding the Defence case
45. It is not clear in the Notice of Voir Dire as well as in the defence submissions whether a Confessional Statement was obtained on the 16th of December 2018. In the accused’s evidence, he did say he was threatened and assaulted, told to make admissions that day and did make verbal admissions. Since, this was not reduced into writing, there is nothing in evidence to confirm that the Police had obtained an admission from the accused on this date. The defence objection as it is, is on the accused’s admissions in the ROI conducted on the 20th of December 2018, four days after the alleged threats, assault and verbal admissions were made on the 16th of December 2018.
46. This court’s assessment of the credibility of the witnesses is discussed in the course of determining the respective issues raised.
Adequacy of Information in the Notice of Voir Dire
47. On the Notice of Voir Dire, whilst I can agree with the learned State prosecutor’s submissions that it contained insufficient details in order to allow the State to call the relevant witnesses to negate by proof beyond reasonable doubt the allegations of threat and assault, in so far as naming the policemen allegedly involved in the assault was concerned, I am mindful, that according to paragraph (b) of the Notice, and in assuming that the assault occurred, the accused would not have been able to name those particular policemen by name as he did not know them prior to the alleged threat and assault. It would therefore be an unrealistic expectation from the State on the accused.
48. What is sufficient though, and in my view, is vital in this voir dire is that even though the Notice did not contain names of specific policemen, it did contain relevant information and clues for the case investigator. These are the date of the alleged assault which is the 16th of December 2018 and the place of the alleged assault, which is at the Boroko Police Station where the accused was taken.
49. I now turn to the application of the law to the evidence in consideration of the main issue in the voir dire.
Whether the State had negated by proof beyond reasonable doubt that the accused was assaulted?
50. F/C Bavi received the crime report relating to this case on the 18th December 2018. Two days later, on the 20th December 2018 she conducted the interview. She was not able to say whether the accused was assaulted or not and by whom. According to the Notice of Voir Dire and the evidence of the accused, the alleged threats and assault occurred on the 16th of December 2018 prior to the interview date. Her other evidence is that there was no indication by way of injuries, scars or blood stains on the accused to show that he was assaulted and did suffer from the injuries sustained as a result. She said physically, the accused appeared fine.
51. I accept that F/C Bavi would not have witnessed the assaults prior to the 20th December 2018 when she took the accused out of the cell to conduct the Police interview. She also stated that there were no signs of injuries on the accused. In the accused’s own evidence, when cross-examined about his injuries, he said ‘his skin dried up whilst in the cell for the four days’. I take that to mean that if he was in fact assaulted, his injuries had healed up. Consequently, I accept F/C Bavi’s evidence that she would not have seen or noticed any signs of or any injuries on the accused. That is not to say that she had not become aware of the threats and assaults done to and on the accused. I explain this below in my assessment of F/C Bavi’s oral testimony.
Assessment of F/C Bavi as a Witness
52. Proper and thorough investigations by F/C Bavi on the circumstances surrounding the surrender and detainment of the accused on the 16th of December 2018 would have assisted the court. Good investigation practice dictates that for her own appreciation and information, as the lead investigator in the case, F/C Bavi would have investigated the history of her suspect’s surrender to the Police and his consequential incarceration. For her to say that it is not a normal practice to do this, is in my view, a shallow response for an investigator of many years of experience. This demonstrates unprofessionalism by her as the lead investigator.
53. Further laxity is also evident where her evidence revealed that on the 18th of December 2018, two days prior to the interview date, she became aware of the case against the accused, her suspect, through her receipt of a crime report, brought to her attention in the regular course of her duties, yet she generally stated she was not aware that he was in the cell. This manner of response indicated to me that F/C Bavi deliberately avoided explaining why she delayed the interview until two days later. This created gaps in the State’s case in negating the allegations raised by the accused that he was threatened, assaulted and left in the cells without being charged.
54. The information surrounding the surrender and incarceration of the accused that F/C Bavi would have otherwise diligently obtained in the course of her investigations, should ideally be reduced into evidence in her own statement, and this would have formed a part of the depositions in the court file. Such evidence becomes important at trial and in determining issues on allegations of breach of Constitutional rights and police impropriety as is required in this case. It may also be used for ascertaining pre-trial custody periods for that matter. Thus, in her lack of response in investigating the allegations of police impropriety for the voir dire, and where she had avoided explaining why she had not conducted the interview two days earlier when she received the Crime Report, I was under the impression that F/C Bavi had known that the accused was in the cell. This also led me to be under the impression that although she did not see the accused being threatened or assaulted, she did know something about it.
55. I also say that F/C Bavi’s failure to investigate the allegations before this trial is unprofessional as she would have been aware of the allegations since they were first raised at the committal court. The committal court depositions, of which I take judicial notice of, show that the accused had raised the allegations of Police impropriety much earlier in time during his submissions to the magistrate on sufficiency of evidence. Although he said he did not raise it to F/C Bavi during the interview and he may have meant to leave it till he went to court, he did eventually raise it before the magistrate. This would have alerted F/C Bavi to investigate the allegations in readiness for trial. For all of the above stated, I find that given the time, date and place of allegation as contained in the Notice, these were sufficient information and leads. F/C Bavi’s responses to the allegations were shallow and indicated a failure on her part as the lead investigating officer. Consequently, the State failed to obtain those necessary and vital information to assist the court ascertain the truth or otherwise of the alleged assault. This has left a gap in the State’s case.
56. In the absence of any evidence from the State on what happened when the accused approached the police on the 16th of December 2018 with his sister, to the time he was interviewed, there is a gap in the prosecution’s case. The gap in the prosecution’s case means the State had not disproved what the accused had raised in his evidence and Notice of Voir Dire. I find that sufficient information was given in the Notice but F/C Bavi had failed to investigate the relevant facts to assist this court. I give the benefit of the doubt to the accused by accepting his version that he was threatened and assaulted. I also find that he was not brought to court or taken out to be interviewed and formally charged until after four days have passed since he was assaulted. I find that this was done deliberately to keep the accused away so as to conceal his injuries.
Whether the State had negated by proof beyond reasonable doubt that the accused was genuinely fearful and that his will was overborn with genuine fear?

57. Having found that the State had not negated the allegations of threats and assault raised by the accused, the next question for determination becomes one of whether the State had proven beyond reasonable doubt that at the time of the interview, on the 20^th of December 2018, four days after the threats and assaults, the accused’s fears were not genuine, and that his will was not overborn due to the threats and assaults made earlier.

58. I am mindful that the correct legal position is that the issue with respect to voluntariness is not the propriety of the police, but the effect of police conducts in all the circumstances on the will of the accused. In determining this issue the Court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made. Refer to Brennan J in Collins v R [1950] HCA 25; (1980) 82 CLR 133 at 149, applied in Paru (supra).

59. On the question of voluntariness of the admissions made during the interview, this will require the court to determine in this circumstance, and in my view, the question of whether the assault and injuries were serious, whether the accused was still nursing those injuries at the time of interview, the nature of the threats; and whether there were any later threats issued and assaults effected during the interview.
Whether the injuries were life threatening?
60. The assault and consequential injuries on the accuse is said to be serious if they are life-threatening. I do not find that the injuries were serious or life threatening as the accused described them to be. I say this because although the accused was not taken to the hospital, the evidence is that in four days, he did recover from the injuries. This is supported by F/C Bavi’s evidence who said she did not see that the accused had injuries or did suffer from assaults. Further, the evidence of F/C Bavi is that the accused appeared physically fine and he was smiling. This to me meant that the accused had nothing to complain about at that time. This is consistent with the accused’s own evidence that he did not tell F/C Bavi about the threats or assaults. Due to this, I find that he had recovered from all minor injuries sustained from the assault. The accused could not have been suffering from any psychological effects. Consequently, at the time of the interview, where his injuries had healed, the accused would not have been fearful and his will would not have been overborn at that time.
Whether the nature of the threats issued were such as to cause the accused’s will to be overborn?
61. There is no evidence as to the nature of the threats issued. From the evidence, the accused had said only generally that he was threatened. As to what was said or how the accused was threatened, he did not say. It is unclear whether the threat issued on the 16th of December 2018, was specific that he was forced to make admissions to the interviewing officer when the time came for him to be interviewed and if he did not, he will be further assaulted. Further, there is no evidence on the nature of any other threats issued after the 16th of December 2018, and particularly on the day of the interview, i.e., on the 20th of December 2018. Due to these findings, the accused’s will would not have been overborn by any threats.
62. Further to finding that the nature of the threats was not established, at the time of interview, there is no evidence that policemen, more particularly those who have threatened or assaulted the accused earlier were present. The accused’s evidence is that F/C Bavi and the corroborator were present. There were other police officers there but they were policewomen from the Sexual Offences Squad present at their respective workstations. I find that they did not threaten or put pressure on the accused to make admissions as the accused himself said they were at their workstations. I find that the accused was not threatened, assaulted or intimidated by anyone including F/C Bavi and corroborator F/C Kamasunga on the day of the interview. In these surrounding circumstances, I find that the alleged fear that he said he held at that time due to the threats and assault he said that were issued earlier was not genuine.
63. Although the accused was a 47 years old unsophisticated villager who had come to live in the city with his sister, and it was a first encounter with the police, I find that given the passage of time, and where four days had lapsed since the threats and assault, where his injuries were not life threatening and had healed, and in the absence of any evidence on the nature of the threats issued, or further threats and assaults, I find that the fear he said he had held as a result of any threats issued or assault effected had been removed or had dissipated. In the circumstance, the answers in the ROI had been given freely and voluntarily.
Whether the State had negated by proof beyond reasonable doubt that the admissions in the ROI were obtained through a Breach of Section 42 (2) of the Constitution?
64. As is the law in this jurisdiction, where the court has found that the confessions in the ROI were voluntary, the court still has the discretion to exclude the confessional material on the grounds of breach of Constitutional rights of the accused in all fairness to him.

Reading of ROI

65. I have exercised discretion not to read the contents of the ROI to ascertain this as counsels have not addressed the court on that aspect of the process and more particularly so when the State did not adduce evidence from F/C Bavi on whether this right was properly administered. In the light of the objection by the defence not to admit the ROI, the exercise of the discretion not to read the contents of the ROI is due to the consideration that I do not want my mind to be prejudiced by the evidence or admissions contained therein unless I am invited to read the contents. The principle in Gasika (supra) on helpful submissions from parties on this aspect of the voir dire process was not applied by counsels. I exercised discretion not to read the contents of the ROI.

66. In the case of Schliebs v Singh [1981] PGNC 92; [1981] PNGLR 364 (17 September 1981), it was held that a detainee whom the police wish to interview should not only be told of his right to consult and to have present a lawyer or friend, but should be given a proper chance to decide whether he wishes to exercise that right or not, and if he does, a real opportunity to exercise it in practice. If the opportunity to consult a family member, a friend or a lawyer is not extended, any confessional material obtained in an interview may be regarded as unfairly obtained, depending on circumstances, and may be excluded from admission into evidence.

67. On the issue of breach of his Constitutional rights under s 42 (2) of the Constitution, the only evidence F/C Bavi offered in relation to the accused person’s right to a lawyer is words to the effect that: ‘there was no lawyer present to be introduced during the introduction stage of the interview’. The case investigator did not go further to explain whether the accused was asked if he needed to see a lawyer or why the lawyer was not present. Evidence was not led to show that she did ask the accused if he wanted to speak to a lawyer, a family member or a friend and if he had said yes, whether she had allowed him to communicate with the lawyer, a family member or a friend. The corroborator was not available to corroborate her evidence in this regard.
68. In her answer when further asked in cross-examination, F/C Bavi, again only said, ‘no lawyer was present for purposes of introduction’. This response is unclear and to my mind, it raises doubt as to whether she had actually administered that right and has given the accused any real opportunity to communicate with a member of his family, a friend, or a lawyer of his choice. Where it was not expressly stated, I find that the State had failed to offer any evidence to negate the allegations.

69. In Maino v The State [1977] PGNC 27; [1977] PNGLR 216 (19 July 1977), on a voire dire, the court held that the question of whether constitutional rights have been given to an accused pursuant to s. 42 of the Constitution will depend upon the particular circumstances of each case. The Constitution envisages that something more practical and useful than a mere statement of rights may be called for to give effect to s. 42(2) of the Constitution in any particular circumstance. In the circumstances of the present case, there is no evidence that something more was done. Given that in the instant case, the accused’s sister had brought him into the Police Station, there is no evidence that the accused was allowed or at least was given an opportunity and offered the facilities to contact her. Accordingly, there was a lack of evidence of adequate provision of constitutional rights which is sufficient grounds to reject the record of interview, even if it was voluntary in the common law sense and not induced by threat or promise. Refer to McDermott v. The King (1948) 76 C.L.R. 501 at p. 515; Cornelius v. The King [1936] HCA 25; (1936) 55 C.L.R. 235 at p. 247, and The King v. Lee and Others [1950] HCA 25; (1950) 82 C.L.R. 133.

70. I reject the state’s submission where the learned Prosecutor submitted that it would be expected that if the accused was in the cells, seriously injured, for five days without medical attention, that he would have been accorded his right to see a member of his family or a lawyer of his choice. This submission is one without basis as the State did not adduce any evidence at all from F/C Bavi to that effect. The finding is that the State had failed to show that the accused was accorded his Constitutional right to communicate with a family member, a friend or a lawyer. Prosecutions had the onus of proving that beyond doubt, and that was not negated beyond reasonable doubt. Schliebs v Singh (supra); Mai and Avi, The State v [1988] PGSC 22; [1988-89] PNGLR 56 (3 June 1988), Mesak and Turi (supra) applied.
71. There is evidence that the accused’s sister did take him to the Police Station on the 16th of December 2018 to clear his name. That demonstrated that the accused’s sister had shown an interest in her brother’s case. This makes me believe that if any real opportunity was given to him, the accused would have contacted his sister and she would have visited him or would have been present for him during the time he was in the cells prior to and at the time of the interview. Given that the accused had only come from the village to live with his sister and due to his level of sophistication, it would have been proper and fair that his rights under section 42 (2) of the Constitution be properly and practically administered.

72. In the relevantly comparable case of State v Dakoa [2009] PGNC 8; N3586 (9 February 2009), where the accused claimed that a Confessional statement relied on by the State was extracted from him involuntarily and unfairly, the involuntariness objection failed but the unfairness objection succeeded on the grounds that a series of police improprieties amounting to serious breaches of the accused’s Constitutional Rights were so extensive and serious, that the court held that it was unfair to allow the accused’s admissions to be admitted in evidence. I apply the principle to this case.

73. In the recent case of State v Beliga Dauma (No 1) N9135, Cr No 477 of 2019, (2021: 13^th September), the court held among others that the breach of section 42(2) Constitutional rights are also subject to the exercise of discretion on fairness to the accused. The ROI was not admitted on this basis. I apply the principle to the present case.

74. In summary, where I have exercised discretion not to read the contents of the ROI, and where the case investigating officer had not sufficiently and expressly explained whether or not she had invited the accused to make contacts more particularly with a lawyer of his choice, I give the benefit of the doubt to the accused. In so doing, I find that no real opportunity was given to the accused to communicate with a family member, a friend or a lawyer. The ROI is not admitted pursuant to section 28 of the Evidence Act. State v Dakoa and State v Dauma (supra) applied.

Assessment of the Accused as a witness
75. In my assessment of the accused’s evidence and his credibility, I comment on two aspects of his evidence. Firstly, relating to the belated filing of his Notice of Voir Dire, he did offer an explanation that he had told his first lawyer about these allegations but nothing was done. I accept this by taking judicial notice of the committal proceedings which show that the accused had indeed raised these at the committal stage of the proceedings. There was no challenge to this and so I accept his explanation.
76. Secondly, in the Notice of Voir Dire, the accused stated at paragraph 1 (b), at page 3 (unnumbered), that the assault occurred on 16th December 2018 when he was taken to the Boroko Police Station, but in his evidence in chief, he said when he arrived at the Waigani Police Station to clear his name on the 16th of December 2018, he was assaulted there and locked in the cell for four days, and on the fifth day, he was interviewed. These are inconsistent versions and can render the accused as a witness who is not credible. The defence did not get the accused to explain these versions however, I note that the state submitted that it may have been as a result of some misunderstanding on the part of the accused. I agree with the State’s submission because the accused did say in examination in chief that he was assaulted at the Boroko Police Station which is consistent with the allegations in the Notice of Voir Dire. Consequently, I do find that he had been confused only with where he was taken to and therefore, he did not deliberately lie. I accept as the State conceded to, that he had a misunderstanding as to where the assault occurred and where the interview took place.
Findings
77. For the forgoing, I make the finding that the state had not negated the allegations of threats and assault by proof beyond reasonable doubt. As a result, the accused’s version that there were threats issued and assaults effected on him and that he was kept in the cells for four days without a charge and on the fifth day he was interviewed is accepted as the truth. I also find that in the specific circumstances of this case, and more particularly where the injuries were minor, nature of threats were not verified and no threats or assaults were issued on the day of the interview, the fear he had held had dissipated on the fifth day when an interview was conducted and admissions were made. As a result, the admissions were voluntary.
78. On the breach of the accused’s Constitutional right to a lawyer, I find that the State did not fully explain and negate the allegations beyond a reasonable doubt. As such the admissions therein were unfairly obtained. I refuse its admissions on the basis of unfairness as a result of breach of the accused’s Constitutional rights. The principles is State v Dakoa (supra) is applied.

79. From all the evidence in the voir dire and discussions above, I find that the accused had been detained in the cell at the Waigani and then Boroko Police Station since the 16^th of December 2018 until he was interviewed on 20^th of December 2018. On the 16^th of December 2018, he was assaulted at the Boroko Police Station.

80. I make the finding that since his incarceration on the 16^th of December 2018, the accused was never informed of any charge against him until the 20^th of December 2018 when he was formally arrested and charged by F/C Bavi. I find also that during the period of detention, the accused was never informed of his rights to talk to a member of his family, a friend or a lawyer. I further find that the accused’s right was further breached when he was not brought before a Court immediately. I have considered the combined effects of ss. 37 (1), and 42 (2) (3) and (4) of the Constitution and find that there had been serious breaches of the Constitution in the circumstances of this case which does amount to police impropriety.

81. Accordingly, I am satisfied that there had been breaches of s. 37 (1) of the Constitution (the right to full protection of the law), and s. 42 (2) and (3) rights of persons arrested or detained. I therefore consider that the four days detention without being advised of his rights especially to see a lawyer, and without being brought to Court, being detained without a charge or and his eventual interview on the fourth day of detention in the circumstance of this case where the accused is an unsophisticated villager, all of the actions and omissions by those in authority amount to serious breaches of the Constitution and impropriety that warrants the exercise of the Court’s discretion in favour of the accused. In the words of the Supreme Court, in Reference No 1 of 1977 (supra), this Court has the power to make the appropriate order or declaration in respect of the breach of s. 42 (2) of the Constitution.

Conclusion

82. In conclusion, this court is satisfied on the evidence that the accused was not accorded his Constitutional rights. The combined effects of the breaches alluded to above amount to circumstances which the Court can give effect to the legal provisions of the Constitution. Consequently, where the Court has found that the accused’s admissions in the ROI were voluntary, in the exercise of this court’s judicial discretion in favour of the accused, I will reject the reception of the record of interview of the 20^th of December 2018 into evidence. I rule accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused