Queen v Fari-Pako [1962] PGSC 19 (20 October 1962)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

CRIMINAL JURISDICTION

LUMI, ON THE 19^TH AND
20^TH OCTOBER, 1962.

THE QUEEN v. FARI-PAKO

Coram: Smithers, J.

LUMI.

JUDGEMENT

One FARI-PAKO is charged with the wilful murder of his wife WAIYU on the 3rd March, 1962 at Itomi. It appears that early on the morning of that day Luluai ANISA was awakened by a scream, and looking from his house he saw WAIYU running from the house where she and her husband lived. After running about fifteen yards she fell. Almost immediately thereafter ANISA reached her and she was dead. The only observed sign of violence was a mark on her breast. Shortly afterwards the men of the village buried her, and no person with any medical knowledge saw her. When ANISA reached the body he saw the accused running away towards the bush.

The accused was not seen again until the following day when he approached the village and was promptly taken into the physical control of two or more villagers. They proceeded forthwith to tie his hands. From that day until about the 11th March he was kept under surveillance in the house boi, and at night his hands were firmly tied together. On his apprehension the accused made some admissions to the villagers. The accused made these admissions in the course of attempting to persuade his captors to refrain from tieing him up. He said that there was no need to do this as he would not run away but would wait until the Kiap came to take him. To add weight, he said it was all his fault, that he had killed his wife but had not done so for nothing but because she refused to do certain work for him in obtaining and making edible sago, that he had not killed her at the suggestion of any other man but it was his will that he did so.

These admissions were given in evidence by the Crown by way of afterthought. The case was launched on the basis that the critical evidence against the accused would be a confession made to the Patrol Officer on the 20th March, 1962. It was only when the admissibility of this latter confession was seriously challenged that resort was had to what had been said to the villagers.

As matters turned out and for reasons stated below, it did not avail the Crown that I was prepared to admit the confession to the villagers. Indeed, had I admitted the confession made to the Patrol Officer, an acquittal would still have resulted. However, it is an important fact that time and time again confessions which are vital to the prosecution are not proved to have been voluntary confessions, within the meaning at law of that expression. As a result, guilty persons sometimes escape conviction and punishment. The situation is such that I cannot refrain from hoping that those in authority in these matters would regard the situation as so disturbing as to require swift and strenuous measures to ensure that all persons concerned with the interviewing of suspected persons appreciate the vital features of a voluntary confession. A voluntary confession is one taken in such circumstances that the Court is satisfied beyond reasonable doubt that the accused did not speak under the influence of any threat or promise and that, as a matter of reality, he was aware that he had a free choice either to speak or not to speak. The burden of proof is a high one. Emphasis may be given to the words "as a matter of reality."

According to law, no confession is to be regarded as voluntary until the evidence before the Judge is such as to carry conviction to his mind that it possesses the features referred to above.

The provisions of Section 3 of the Evidence Ordinance No. 16 of 1951 state in plain terms that a confession made pursuant to a threat or promise must be rejected by the Court. It also provides that a confession which is in fact made after a threat or promise has been made to an accused person shall be deemed to be made pursuant to such threat or promise until the contrary is proved.

In the instant case the confession to the Patrol Officer was in fact made after a threat had been made to the prisoner by the arresting native constable. Adequate steps were required to free the prisoner from the influence of that threat. On or about the 16th March a Native policeman went to Itomi to secure the body of the accused and escort him to the Patrol Officer. This occupied walking time of four days and three nights. The accused was tied up at nights but was freed far walking during the day.

On arrival at the village the constable, without giving any warning to the accused who was in custody as described, had questioned the accused and obtained from him certain admissions. No real attempt was made to submit that these were admissible. The constable said to the accused on the last morning of their march to the Patrol Officer - "'When you come up to the Patrol Officer you must talk all the same you killed her when you wanted her to cut sago and you cut her neck." This falls within the category of a threat made by a person in authority to an accused person very much in custody. Any subsequent confession by this man, albeit made to another person, is therefore deemed to be made pursuant thereto unless the contrary is proved. It may be emphasised "unless the contrary is proved beyond reasonable doubt."

The confession in question was made later that morning to the Patrol Officer through one ARUMBI acting as interpreter. The constable remained present at the interview and in the circumstances this was an unfortunate feature. ARUMBI was a villager, one of those who had originally made the accused a captive and had assisted to keep him in custody since, and who had come for the express purpose of interpreting. ARUMBI spoke Pidgin to some extent but it was clear from what occurred in this Court between him and the Patrol Officer acting as Court interpreter in this case that his knowledge of Pidgin was defective. He appears to see a person of no education. The accused also appears to be an uneducated villager.

The Patrol Officer did not know that the policeman had made the threat referred to above and did not make any inquiries as to such a possibility. However, it would seem that he had been instructed to deliver an introductory statement to an accused person designed to cover the possibility of such a threat having been made. Accordingly he stated to the interpreter in Pidgin for transmission to the accused the following:-

"Suppose some fella man he been makim talk long you long you yet must come outim talk long Kiap you no ken tingk him this fella something. Suppose some fella man he talk long you long suppose you no come outim talk bai you got trouble you no can tingk him this fella.

Tasol suppose you yet you likeim came out im talk long me you can talk talk. Suppose you no like makim talk emi all right; em something long you. Tasol suppose you makim talk long me now he must write im talk belong you long book. Now behind me can give him talk long big judge."

The Patrol officer adds that after doing this he asked the accused through the interpreter whether he understood it and the accused said he did.

The Patrol Officer conceded that the conception intended to be conveyed by this Pidgin insofar as it is intended to tell the accused that he was free not to speak, is not an easy one for these natives to grasp. He also concedes, and indeed it is obvious, that the internally revolving Pidgin expressions have in them the germs of misunderstanding, and also that there is the possibility of the final intimation being treated as the dominating notion to be conveyed.

The Patrol Officer states that he is confident that the warning was faithfully conveyed and understood, but I do not see any basis for this confidence. I believe that the Patrol Officer did not appreciate that the task before him was one in which he had in reality to put the mind of the accused as a matter of reality into a condition in which he would actually understand that nothing would happen to him if he chose to say - "I remain silent." I think his impression was that he had a ritual to perform. He performed that ritual in a manner which he thought his duty required. Although the Patrol Officer made a note of the confession he did not record the "warning."

When one comes to the evidence of ARUMBI one finds that he can remember quite well that he conveyed to the accused that the Patrol Officer said that the accused was to wait until the Big Judge came and the Patrol Officer would give him "this talk" and that later when the No. 1 Kiap and the Big Judge came the Judge would mark the time he was in gaol. He has however no recollection of anything also being said to the accused. These people have good memories. I think that had ARUMBI really appreciated that he was telling the accused that he was free to refrain from telling his story to the Kiap it would have astonished him and he would not have forgotten it. Had he not waited seventeen days and walked four days for the express purpose of giving the Kiap the accused's talk? It is relevant to observe that ARUMBI was not a trained interpreter. The irregular ways of such persona acting as interpreters are well known.

It is significant as to the difficulty of conveying the message contained in the warning that when it was done before me in this Court, the interpretation into place talk by the Court interpreter was of such speed and economy of words that even without knowing the language it can be said with confidence that the message could not possibly have been conveyed. It is my opinion that the message was not conveyed to the accused in the sense that he was made to understand he was free to "keep his talk." I do not believe ARUMBI understood that he was to convey to the accused a serious intimation that he was perfectly free to remain silent if he chose to do so. The Patrol Officer was inclined to agree that to implant that conception into the mind of the accused, some emphasis was necessary. Save that he asked the accused if he understood and received an affirmative answer, there was no such emphasis. This question and answer, although satisfying to the mind of the Patrol Officer, do not logically or in reality carry the matter any further. They beg the question. The man is saying he understands what was conveyed but there is, in the exercise, no clue as to what has been conveyed.

In the absence of evidence that steps were taken by means of repetition, explanatory words or questioning to ensure that the ideas wrapped up in the "warning" had really penetrated the mind of the accused, it is impossible for me to feel that the effects of the policeman's threat had been cancelled out, so to speak, and that the accused really understood his freedom to remain silent.

One can understand that an officer hoping that an effective confession will be made and knowing that he must warn, may wall feel that too much warning, too clear an understanding on the part of the accused that he may "keep his talk," may encourage the accused to do so, with the unfortunate result that no confession will be made. He may think that such a result reflects on his efficiency and he may realise that in the absence of a confession, a great mountain of additional work may be necessary, and indeed a guilty man may altogether escape conviction. However it is well for every person to understand that it is necessary for every interviewing officer to use enough words, emphasis and explanation and even in some cases to get the accused to express in his own words his understanding of his right not to speak so that it is clear that the prisoner understands his rights. An officer who does this faithfully is contributing in the most effective way to the proper administration of the criminal law and indeed having regard to the laws of evidence, he is doing his duty in the only effective way.

It seems to me a curious state of affairs that a native policeman such as the man who brought the accused to the Kiap should be ignorant of the elementary rules that you do not question a man in custody without a warning and that it was wrong for him to give the accused an injunction to confess in any particular terms or at all. That he should stand up before me and cheerfully say that he did these things proves both his honesty and his inability to recognise that his reprehensible errors rendered nugatory all his other good work. This policeman was obviously a man capable of taking responsibilities; he was honest, he understood that a confession was important, yet he unblushingly broke the rules and acted as though he thought it was part of his duty to instigate and promote the making of a confession. It is astonishing that any policeman should labour under such a misapprehension. Such a state of mind can lead to the most undesirable results.

However, even the native policeman's errors might have been rendered harmless had the Patrol Officer taken adequate steps to make the accused realise he was free to remain silent. He did not do this and accordingly the confession made to him cannot be admitted in evidence.

As a result of the above the evidence against the accused is in substance that of the Luluai mentioned at the commencement of this judgment and the confession of the accused to the villagers to the effect that he had killed his wife for a stated reason. It contains no clue as to how he thought he killed her. It is urged that on this evidence the Court should be satisfied beyond reasonable doubt that the accused murdered his wife. It should be pointed out that there is no medical evidence of the cause of death. The only sign of physical injury was the mark mentioned earlier of unknown size or significance and variously described as "an open mark," "a hole that was bleeding," "a mark on her breast," "a mark of a knife." It is impossible for me to draw the inference that the deceased died of that wound. No jury would be permitted to do so. The wound as described was plainly inadequate to have caused instant death and as described it is most improbable that it caused death at all. Common sense would therefore require a search for some other cause. Plenty of people die sudden deaths from heart failure and other non-observable causes. There is nothing other than this minor wound to suggest that this was not one of such causes.

It is urged that the statement of the accused is to be interpreted as proving beyond reasonable doubt that he had injured her and that she had died from the injury he inflicted. On ordinary principles the statement cannot be used to this extent if the use of the words in, on any reasonable hypothesis, consistent with some non-incriminating explanation. His statement may well be taken as proof that the accused thinks he killed the deceased.

It would be of great value if the identity of the assailant were in issue. It is different when the issues are what did he do and were his actions the cause of death. His statement tells you nothing about what he did. It merely tells you that in his belief what he did killed her.

If it appears that the belief may rest upon an assumption which may be erroneous, then it cannot be taken at its face value. In this case the accused probably was responsible for the cut on the breast and he may have assumed that the cut was the cause of death. It is this assumption which may well be erroneous. The woman having probably turned and fled immediately she received the wound and falling to the ground shortly thereafter, it would be quite natural for the accused to assume that it was deeper than it in fact was, and to come to the erroneous belief that it had caused the death. His knowledge of the cause of death may well be as inadequate as that of the Court.

In such a case there is a reasonable hypothesis consistent with a non-incriminating explanation of the use by the deceased of the apparently incriminating words.

In the absence therefore, at least, of proof that the cut was the cause of death, it would be improper to use the words in question as the basis of a conviction.

The accused will therefore be acquitted.