R v Akundagru [1963] PGSC 44 (1 January 1963)

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

R - v - AKUNDAGRU

Smithers J.

The accused was charged with wilful murder of an unnamed child.

Incriminating statements were made by him in evidence which he gave as a witness at an inquest into the death of the child. His evidence was reduced to writing in a form complying with the provisions of Clause 9 of the Coroners Regulations 1955-1959. It purports to be signed by the accused who "made his mark" upon it and also it appears to be signed by Mr. Bunting, as Coroner.

The accused was in de facto custody at the time of the inquest and was called as a witness pursuant to Section 12 of the Coroners Ordinance which requires the Coroner to examine on oath (inter alia) all persons who in the opinion of the Coroner are able to give relevant evidence respecting the facts.

Mr. Bowen submitted the deposition to me as proving itself and admissible as such without further proof. He relied on the District Courts Ordinance which he said was applicable by virtue of Section 25 of the Coroners Ordinance 1953-1957.

Section 25(3) of the Coroners Ordinance, so far as relevant, now provides that depositions taken by the Coroner and the statement of any of the person charged taken in accordance with the provisions of section 21 of the Ordinance are on the trial of a person admissible in evidence in the like manner and to the same extent as are depositions or a statement of the accused taken on the preliminary hearing of an indictable offence.

Section 105 of the District Courts Ordinance provides that "upon the trial of the defendant for the offence for which he has been committed for trial ... any such statement made by him may, if necessary, be given in evidence without further proof thereof, if the same purports to be signed by the justices by whom it purports to have been taken, unless it is proved that it was not in fact signed by the justices by whom it purports to be signed." (See also Section 93 of the Justices Ordinance).

In the first place it is my opinion that the words "if necessary" in this provision relate to a necessity to prove the statement in the manner set out and not to a general kind of necessity to prove the statement in order to complete the proof of the offence.

In this case it cannot be shown that there is any necessity in the required sense because Mr. Bunting and the interpreter concerned were within easy access of the Court.

It is also clear that this provision does not relate to this deposition. The deposition is not "any such statement." The class of statements referred to comprises those made by a person charged after he has been "warned" pursuant to Section 104(B) of the District Courts Ordinance or Section 21 of the Coroners Ordinance. (Compare Section 92 of the Justices Ordinance).

The District Courts Ordinance contains provisions relating to trials in the Supreme Court but deals with proof by depositions only in Section 110. That Section relates only to cases where the deponent for reason of death or other serious cause is unable to be called. That does not apply to a deposition of the accused.

Reference to the Evidence Ordinance 1934-1957 and the Commonwealth Evidence Act 1905-1950 which is applied to the Territory by Ordinance No. 67 of 1952 reveal no provisions for the reception in evidence of depositions.

The deposition is therefore not admissible on its mere production as such to prove what the accused said in evidence at the inquest.

I intimated that subject to proof of voluntariness the statements given in evidence at the inquest by the accused might be proved in the ordinary way.

In so holding I followed the decision of Mr. Justice Ollerenshaw in R v. Wendo of 14/7/1962. The judgment in R v. Coote 1873 4 P.C. 509 which His Honour discusses in R v. Wendo contains the following passage:- "In their Lordships' opinion the depositions on oath of a witness legally taken are evidence against him, should he subsequently be tried on a criminal charge, except so much of them as consists of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principle 'nomo tenetur scipsum neensare' but does not apply to answers given without objection, which are deemed to be voluntary." Their Lordship add – "To institute an enquiry in each case as to the extent of the prisoner's knowledge of the law and to speculate whether, if the had know more, he would or would not have refused to answer certain questions would be involve a plain rule in endless confusion. Their Lordship saw no reason to introduce an exception to the rule long recognized as essential to the administration of justice 'ignorantia juris non excusat.'"

The question of voluntariness or otherwise is a question of fact. It is surprising to find that what a Judge might well think was a non-voluntary statement is to be "deemed" voluntary.

Mr. Justice Ollenrenshaw refers to the remark of Stephen C.J. in The Queen v. Meehan 1869 8 S.C.R. (N.S.W.) 289 to the effect that " a coroner would scarcely perform his duty with propriety unless he cautioned the examinant that he was not compellable to answer any question or make any disclosure that might lead to criminate himself." Also the Full Court of Victoria in R v. Taylor 1863 2 W. & W. (L) 153 quashed a conviction which depended on admissions made by the accused to a coroner. The accused at the time of giving the evidence containing the admissions was in custody. Nothing was said to him one way or the other about his willingness or otherwise to give evidence; he was sworn without objection and gave evidence without objection.

Stawell C.J. said that in those circumstances he was not "free in the sense in which that term is used in relation to confessions in criminal matters. "The confessions, to be admissible, must be free and voluntary. If the presiding Magistrate had called his attention to his position and cautioned him that he was not bound, nor desired, to be sworn the case would have been different." Both these cases were decided before Coote' s case. But it is to be observed that in Coote's case the prisoner was not in custody at the time he gave the evidence containing the admission and it is clear from the judgment that he was quite well aware that he was entitled to object to answer questions.

The remarks of their Lordships concerning the legal voluntariness of answers made in ignorance of the right to refuse were therefore not essential to the decision. It may also be said that those remarks were made against a background of Common Law that the Coroner was under no duty to inform a witness as to his right to refuse to answer questions the answers to which would incriminate him. That is no longer the law in England. It ceased to be the law in 1953 by Rule 18 of the Coroners Rules which provided that the Coroner must inform a witness of this right.

In addition, if from the jungles of New Guinea one may respectfully view with critical eye the logic of Whitehall, it may be said that the validity of the comments of their Lordships supporting the opinion that answers given without objection are deemed to be voluntary, is seriously open to question.

In the first place the maxim quoted appears to be relied upon for a purpose which is outside its scope. There is no question of excusing anybody. The only question is one of fact - was the statement voluntary or not? The maxim is not to be taken to mean that a person is deemed to know the law. On an issue of voluntariness knowledge is most relevant fact and the maxim cannot be used to impute knowledge. See Latham C.f. in Latter - v.- Muswellbrook Shire Council 56 C.L.R. at p. 434.

In the next place it is not clear that a rule requiring knowledge of his rights on the part of a witness would introduce undue confusion in the administration of the law. It would not involve enquiry as to what questions the accused would or would not have answered had he known the law. The enquiry would relate to two questions only, namely, was he informed as to his right to refuse to answer, and if so what evidence did he give?

One knows from practical experience that Jervis is correct when he states in his treatise on Coroners (1946) 8th Edition at p.100 that the accepted modern course is to inform the witness that he is not bound to incriminate himself and one knows that in England such a course is compulsory. In the light of this practice and the present law in England the enquiry as to knowledge should in any case be resolved easily and the possibility of confusion is hard to see.

Looking at the matter from the point of view of possible vice in the rule as stated, one cannot but be struck with the inequality with which it bears upon the knowing and the simple. It hardly seems to accord with justice that the law should be such that it permits a simple man to incriminate himself in circumstances in which n man equipped with knowledge of a simple rule of evidence would lawfully avoid doing so and in which he himself would lawfully avoid doing so if he had that knowledge.

In this Territory, in 1921, the bulk of the inhabitants were natives who, by and large, accepted the superiority of the white man, the authority which accompanied its, and the forms of law introduced by the white man. It is certain that an ordinary native person instructed merely to go into the witness box, being sworn or affirmed, and then questioned by a Coroner would regard himself as bound to answer the questions put to him.

No thought of the possibility of his having a right to choose whether he would answer or not would enter his mind. In these circumstances it is a friction indeed to attribute voluntariness to incriminating answers he may give, Add to the facts that the man is in custody before he goes into the witness box and the fiction is intensified.

To assert as a matter of law that evidence so given was voluntary would be to take a stop incompatible with the mental attitude and the social and economic position of the native people of 1921 and now and would be calculated to do injustice on a large scale.

For these reasons I am of opinion that the doctrine that answers given without objection are deemed to be voluntary, if part of the Common Law of England on the 9th May, 1921, was then and is now not applicable to the circumstances of the Territory. That doctrine is therefore not part of the law of the Territory. See Section 16 Laws Repeal and Adopting Ordinance. Voluntnriness is to be established by the Crown in relation to such answers in the ordinary way.

Having; regard to the above Hr. Bowen called Mr. Bunting and the person who interpreted between him and the accused at the inquest.

The interpreter deposed that he faithfully interpreted to Mr. Bunting the evidence of the accused and all that was said as between Mr. Bunting and the accused and that he read to the accused the contents of the deposition and that the accused said that it was accurate and then placed his mark thereon. Mr. Bunting then gave oral evidence of his recollection of what the interpreter said the accused had said, that the written deposition was a true record of what the interpreter said the accused had said, and that the interpreter appeared to read to the accused the contents of the deposition and that the accused appeared to concur in the accuracy of what was read to him and that the accused then placed his mark upon the deposition at the and of the written words.

Mr. Bunting also said that after the accused was called to give evidence and before he was affirmed he told the accused that he was not compelled to make any statement and that if he chose to remain silent he was perfectly free to do so but that if he did speak what he said would be taken down and might be used in evidence at his trial. Mr. Bunting said, and I had no hesitation in accepting his evidence, that he made special effort to ensure that the accused understood the import of this "warning". I then admitted as evidence against the accused both the oral evidence of Mr. Bunting and the deposition.

It is to be noted that the "warning" given by Mr. Bunting was in substance that provided by Section 21 of the Coroners Ordinance to be given to accused persons who have been charged by the Coroner.

Although the giving of a "warning" in these terms operated in this case to enable the Crown to prove voluntariness, and although Mr. Bunting gave it in accordance with his view of his duty and out of a desire to be fair to the witness, it was not a correct procedure for him at that stage to give that particular form of warning. The effect of what he said was to authorise the witness to decide whether he would be examined or not. It was however the duty of the Coroner to examine him concerning the facts of the death of the child. Section 21 places on the Coroner the duty of examining all, persons who in his opinion are able to give relevant evidence of the facts. It was the duty of the Coroner therefore to examine him as to his knowledge of the circumstances of the death but it would also be in accordance with this duty, when asking questions the answer to which might, in his opinion, be incriminating, to inform the witness, in substance, that he was under no obligation to answer if the answer would tend to expose him to a criminal charge. See for the precise definition of the Common Law rule Goddard C.J. in Blunt v. Park Lane Hotel Ltd. 1942 2 K.B. 253 at p. 257.

This point is of importance because if the witness is given the option to decline to give evidence at all and so exercises that option, the Coroner, and thus the public, is necessarily deprived of any evidence he can give. It must be remembered that whatever other people or even the witness himself has previously said the obligation to examine him is clear and rests on the very sound view that it may well be that the witness when on oath will tell a story at odds with what has hitherto been said and that such story may be true, and at any rate ought for public purposes to be known. The witness is fully protected if he is warned when questions involving possible incrimination are asked.

So far as concerns proof at any subsequent trial of what the witness says at the inquest, it should be realised that it is not part of the duty of the Coroner to direct his mind to that. His duty is to enquire as to the facts and cause of death. To make his enquiry he must examine all the witnesses. He must examine them according to law. To give appropriate warning in respect of questions involving possible incrimination is to conduct the examination according to law. It remains true of course that if he gives this warning it is a secondary product of his enquiry that at the trial proof of voluntariness is facilitated.

In my opinion therefore:-

(a) It is the duty of the Coroner to call as a witness every person who in his opinion can give relevant evidence. This obviously includes a person suspected.

(b) A person even in custody cannot refuse to be sworn or affirmed as a witness at a Coroner's Enquiry.

(c) It is the duty of the Coroner to conduct the examination according to law and therefore: he ought clearly to inform witness of his right to refuse to answer a question the answer to which might incriminate him.

(d) In theory each question should be dealt with separately but in practice it may be necessary or even desirable to deal with questions according to subject mattes.

(e) It is not a concern of the Coroner to design or conduct his enquiry with a view to obtaining evidence, admissible in subsequent proceedings, against any witness.

(f) Careful observance of these rules may well facilitate subsequent determination of the question of voluntariness of answers given.