Boto [No 1], Regina v [1967] PGSC 6; [1967-68] PNGLR 435 (21 October 1968)

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CRIMINAL LAW - Evidence - Admissibility of confessions - Effect of accused being in custody on voluntariness of confession - Questioning in breach of Judges’ Rules - Discretionary power to reject confessions unfairly obtained - Nature of inducement sufficient to render confession not voluntary.

On the trial of seven accused from a primitive area on a charge of wilful murder the Crown sought to lead evidence of statements made by two of the accused to police officers while in custody. The defence objected to the admissibility of the statements and in evidence given on the voir dire it was established that the two accused were taken to Yagusa, a village near the scene of the crime, where each was separately cautioned in the usual manner. One of the accused was told by the police officer: “You have caused some trouble” and “I would like to see the place where you killed the person” and the first question asked of the accused was “Is this the hammer you used to kill the dead man?”. The other accused was told by another police officer: “You have been in some trouble” and “Another thing is that I want to know what you did when the man was killed” and the first question asked by the police officer was: “Did you grease^*[dxxxv]¹ the dead man?”.

After further questioning at Yagusa both accused were taken in custody to the police station at Goroka where more than a week later each was separately questioned at length after a further caution and after the following statement had been made by the police officer to each accused: “The government law is different from the village law. The things which are involved in the law are different from the customs of your village. The government and the law are here to help all the people. The aim of the law is to look after you. It is true that you are in trouble, but you should not be afraid of ourselves and the Judge just because you are in trouble. The police have arrested you because you have caused some trouble. As a result of that trouble a man has died . . . . You must think carefully about what you want to say about this matter . . . . Take note of this, it is entirely up to you whether you are going to tell us something or not. Do you understand what I have said about the ways of the law?”

N1>(1) The Crown had established that the statements made by the accused at Yagusa were voluntarily made as the result of the exercise of a free choice to speak or remain silent. The fact that the accused were in a primitive state and taken from their homes in custody and without invitation did not lead to the conclusion that they were impliedly threatened that they would not be freed from detention until they had confessed.

N1>(2) The questioning of the accused at Yagusa was in breach of the Judges’ Rules. The statements made by the police officers to each accused suggested that whatever the accused said he or she would be confronted by evidence in the possession of the police of involvement in the killing and each might as well admit guilt. The questioning amounted to cross-examination the aim of which was to extract damaging admissions from the accused. The statements made by the accused at Yagusa should therefore be rejected in exercise of the Court’s discretionary power to reject statements unfairly obtained.

N1>(3) The statements made by the police to the accused at Goroka were very likely to raise in their minds the hope that if he or she did speak up it would be to their advantage and the statements therefore amounted to an inducement sufficient to “taint” the confessions. The statements were so confusing that the Court could not be satisfied that they communicated to the accused that each had a free choice to speak or remain silent. The Crown had failed to establish that the answers of the accused were voluntary and the confessions at Goroka were therefore inadmissible.

Other cases referred to: McDermott v. The King (1948), 76 C.L.R. 501; R. v. Banji (Unreported S.Ct., P. & N.G.L.R. Mann C.J., 16/10/62); R. v. Fari-Pako (Unreported, S.Ct., P. & N.G.L.R., Smithers J., 20/10/62); R. v. Toronome-Tombarbui, [1963] P. & N.G.L.R. 55; R. v. Kom, [1967-68] P. & N.G.L.R. 265; Ibrahim v. The King, [1914] A.C. 599; Thomas Dwyer v. The king (1932), 23 Cr.App.R. 156.

Fum Boto, a female, Falupa, a male and five other males were jointly indicted for the wilful murder, on or about 9th June, 1968, of one Kavaiu. At the trial the Crown sought to adduce evidence of confessions made by Fum and Falupa to two different police officers. The defence objected to the admissibility of these confessions and evidence was taken on the voir dire. The judgment here reported was given on the conclusion of the evidence on the voir dire. The judgment on the trial itself is separately reported: R. v. Fum Boto [No. 2] [1967-68] P. & N.G.L.R. 448.

FROST J: At this stage of the trial, after hearing the evidence on the voir dire, I have to rule on the admissibility of certain statements made by the female accused Fum, and the male accused Falupa, to Mr. Newport, who was then a Sub-Inspector of Police, and Sub-Inspector Thackeray.

Mr. Lindsay’s objection to the admissibility of the statements is that the Crown has failed to show that they were made voluntarily, or, alternatively, that the accused have shown that I should exercise my discretion in their favour and exclude them.

The relevant facts are that as a result of certain information received by Mr. Newport, who was in charge of the investigation, that a man had been killed in the Lufa sub-district, a party of police was sent there on 13th June, 1968, and next day he and Sub-Inspector Thackeray went to the Nupurua school, where they saw the deceased’s body with four obvious head wounds. At 6.30 p.m. that day, seven persons including the accused persons Fum and Falupa, and another girl, Igoia, had been taken into police custody at Nupurua. After being given a meal, all the accused were put in a hut in which they spent the night under the surveillance of four native police who also spent the night in the hut. On the following day, Saturday, 15th June, 1968, Newport and Sub-Inspector Thackeray went by foot to the village of Yagusa, about 1 1/2 hours walk away, taking with them the seven persons in custody, and accompanied by the native police.

At Yagusa, through an interpreter, Newport cautioned Falupa, but, prior to stating and repeating the substance of the usual caution, he informed Falupa, “You have caused some trouble, and it is my duty to find out about this trouble”, and in the course of the caution, he said, “Another thing, I would like to see the place where you killed the person”, adding it was entirely up to the accused whether he showed the place or not. The significance of these particular statements I shall refer to later. Falupa replied that he understood and would help the police.

The police officers then went to a house in Yagusa village, and there Sub-Inspector Thackeray took possession of a hammer. Newport then showed the hammer to Falupa, and asked:

Falupa: “I and the men from Okapa”, and he named them as Akueba and Waiotnama.

Falupa: “I watched Akueba hold him, and Waiotnama hit him. I watched with the two girls”.

Falupa: “Kivio greased the two girls and told them to grease the deceased to get him to come to the garden”.

Falupa: “We hid at the big house and when the deceased came, the two girls told us, and we went and killed him”.

Falupa was later taken to the scene of the crime, and at the request of the two police officers, showed them where he and two other accused waited for the deceased as he came along the path, and also other positions including the places where the deceased was attacked and to which his dead body was later carried.

At the scene of the crime, the accused Fum also was questioned, and these questions and her answers are also objected to. She and Igoia (who was not charged) were first cautioned by Sub-Inspector Thackeray who stressed and repeated the usual terms of the caution. But the first statements made by Sub-Inspector Thackeray to the two girls were, “You two have been in some trouble. It is my job to find out everything about this trouble”, and he also said, “Another thing is that I want to know what you did when the man was killed. If you don’t want to show me it is alright. I cannot order you to do so, do you understand?” Fum replied, “Yes”. Then without pausing to ask Fum whether she wanted “to talk about it”, which he had explained was entirely up to her, Sub-Inspector Thackeray at once proceeded to question the girl as follows:

Fum: “I greased him and said I will marry your son if you come to the garden”.

Later Sub-Inspector Thackeray asked Fum whether she was prepared to show what she did when the man was killed, and she indicated the position in the garden where she stood.

The party left the scene on Saturday at about 5 p.m. and returned to the Nupurua school. Three other men, including the two accused, Akueba and Kivio were later brought to the camp. On the following day, the police officers returned to Goroka bringing with them in custody, the accused persons, Fum, Falupa, Ianotda, Apato, Beguman, Akueba, Kivio and five other suspected persons.

The other evidence objected to consists of questions and answers of the accused Fum and Falupa during interviews thereafter conducted by Mr. Newport at the Goroka police station.

Now in his attack on the admissibility of the admissions made at Goroka, counsel for the accused proceeded to elicit evidence as to the conditions in which the accused were kept at the Goroka police station, and as to the particular proceedings instituted by the police officers in the District Court at Goroka, further to support his case that the admissions were not voluntary, or that the conduct of the police officers was improper in these respects so as to provide additional grounds on which I should exercise my discretion in favour of the accused and exclude the admissions. However I have been able to reach my decision on other grounds.

The interview with the accused Fum was delayed until 25th June, 1968, when she had been over a week in custody. During this period the only charge which had been laid against all the persons brought from Yagusa, including Fum, was one of riotous behaviour. On that day she was brought to the office of Mr. Newport who questioned her through an interpreter and wrote the questions and answers down in Pidgin and English. Because it was not read over and then marked by the accused the record of interview was not tendered as evidence. Now Mr. Newport and Sub-Inspector Thackeray had gone to considerable trouble to compose a form of caution which they thought necessary having regard to the fact that the accused persons were all from a rather primitive and isolated region and indeed the caution comprised over twenty sentences. But in addition to the usual terms of the caution, which were stressed and repeated, the police officers decided to introduce other matters.

“The government law is different from the village law. The things which are involved in the law are different from the customs of your village. The government and the law are here to help all the people. The aim of the law is to look after you. It is true that you are in trouble, but you should not be afraid of ourselves and of the Judge just because you are in trouble. . . . The police have arrested you because you have caused some trouble. As a result of that trouble a man has died. . . . You must think carefully about what you want to say about this matter. . . . Take note of this, it is entirely up to you whether you are going to tell us something or not. Do you understand what I have said about the ways of the law?”

To this Fum replied “Yes”, and Newport, without asking her whether she wished to speak or not, immediately started to question her. The interview was commenced at 7 p.m. and continued until 11 p.m. After a brief caution, the interview was resumed at 8.30 the next morning and concluded at 9.30 a.m. In the course of the interview, Mr. Newport asked her simple questions and thus elicited her account of the entire part played by Fum and the others in the crime, although some of the questions were designed to elicit damaging admissions.

The remaining evidence which was heard on the voir dire was the record of the interview with the accused Falupa, which commenced at 8.35 a.m. on Monday, 1st July, 1968, after Falupa had been confined at the police lock-up for a fortnight. Mr. Newport administered the same long caution as he had to the accused Fum. Falupa was then asked “Do you understand the ways of the law?” He replied “Yes. I will give my talk”. The first question asked of him was: “Did you kill a person called Kavaiu?” Falupa replied, “Yes, all of us killed him, we all hit him with a hammer, one at a time”.

Having obtained that Admission, Mr. Newport then proceeded to question Falupa until 5 p.m. with a break of an hour for lunch, and on the following day from 1.05 p.m. until 5 p.m. In all, 174 questions were asked and answered.

I now propose to refer to the principles of law applicable which are well settled. Mr. Lindsay relied on the well known decisions of McDermott v. The King[dxxxvi]², R. v. Lee[dxxxvii]³, and certain decisions of this Court, R. v. Banji[dxxxviii]⁴, R. v. Fari-Pako[dxxxix]⁵, R. v. Toronome-Tombarbui[dxl]⁶, and R. v. Kom[dxli]⁷. I propose first to set out a passage from the judgment of Taylor and Owen JJ. in Wendo v. The Queen[dxlii]⁸, in which the matter was dealt with by the High Court:

“Objection was taken to the admission in evidence of these statements on the ground that they were not shown to have been made voluntarily but had been obtained unlawfully or had been induced by threats or that they had been obtained by unfair or improper means of such a nature as to require the trial judge to refuse to receive them in evidence. Section 68 of the Evidence and Discovery Ordinance [also s. 15 of the Evidence Ordinance of New Guinea], upon which reliance was placed for some of the submissions made on behalf of the applicants, provides that no confession which is tendered in evidence on any criminal proceedings shall be received which has been induced by any threat or promise by some person in authority and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown. The section is confined to ‘confessions’, that is to say, admissions of guilt of the crime charged: R. v. Lee[dxliii]⁹; but the common law is also in force in the Territory 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. Reliance was also placed upon the discretionary common law power of a trial judge to refuse to admit in evidence statements which are made voluntarily and are therefore not inadmissible as a matter of law, but which have been obtained by unfair or improper methods used by police officers in their interrogation of suspected persons or persons held in custody. In these cases, however, it is for the accused to establish the facts justifying the exercise of the discretion in his favour: R. v. Lee[dxliv]¹⁰. These common law rules were discussed and explained in R. v. Lee[dxlv]¹¹, and McDermott v. The King[dxlvi]¹².”

“. . . the real issues which the learned trial judge was required to decide on the voir dire. Those issues were whether the statements were voluntary or, in the alternative, whether, being voluntary, they had been obtained in the course of the investigation by the use of unfair or improper methods so as to make it right as a matter of discretion to reject them. The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence: . . . although if it has been so obtained that is a matter to be considered, along with all the other relevant circumstances, in determining whether the evidence should be admitted against an accused person in a criminal trial. That the applicants were kept under restraint and were brought before Mr. Carey in custody were relevant circumstances in determining the issues which the learned judge had to consider . . . .”

For the proposition that the provisions of the Ordinance are not exclusive and the admission must be still voluntary at common law, see also Smith v. The Queen[dxlviii]¹⁴, and R. v. Toronome-Tombarbui[dxlix]¹⁵.

For the principles applicable to the exercise of the Court’s discretion to exclude a voluntary confession, I desire to refer to the following passage from the judgment of Williams J. in Smith v. The Queen[dl]¹⁶:

“The rule that a court is justified in excluding a confession where it is obtained by unfair or improper means is of comparatively modern growth. It is traced up till 1914 by Lord Summer in Ibrahim v. The King[dli]¹⁷. His Lordship described this ground as follows: ‘This ground, in so far as it is a ground at all, is a more modern one. With the growth of a police force of the modern type, the point has frequently arisen, whether, if a policeman questions a prisoner in his custody at all, the prisoner’s answers are evidence against him, apart altogether from fear of prejudice or hope of advantage inspired by a person in authority’[dlii]¹⁸. Perhaps his Lordship remembered what Lord Brampton had once said: ‘After arresting, a constable should keep his mouth shut, but his ears open.’ Since then this ground can be said to have been firmly established. It was accepted by this Court in McDermott v. The King[dliii]¹⁹. Dixon J. (as he then was), said: ‘Here as well as in England the law may now be taken to be, apart from the effect of such special statutory provisions as s. 141 of the Evidence Act 1928 (Vict.), that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence’[dliv]²⁰. The question whether a confession has been obtained by unfair or improper means almost invariably arises from the conduct of the police in questioning a person who may know something about a crime whether they suspect that person to be the author of the crime or not. This has led to the making of rules known as the Judges’ Rules which are intended to embody directions with which the police are expected to comply if they do not wish to run the risk of having a confession which has been obtained in breach of these rules rejected. . . . The rule with which we are most concerned in the present case is r. 3 which provides that ‘Persons in custody should not be questioned without the usual caution being first administered’. But this rule does not mean of course that after persons in custody have been cautioned they can be questioned or cross-examined on the subject of the crime for which they are in custody. An example of where a conviction was quashed simply because a person who was in custody was asked a question without being cautioned will be found in Thomas Dwyer[dlv]²¹ and an example of where a conviction was quashed because, although the person in custody was cautioned, the questions were improper will be found in Alfred Brown, John Bruce[dlvi]²². In the latter case it was said that the police had no right to suggest, by questioning a person detained in custody, that they had evidence of his guilt.”

The test, upon this part of the case, is “whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused”: R. v. Lee[dlvii]²³.

I propose to deal first with the answers to the questions put to the accused persons Fum and Falupa on 15th June, 1968, near the scene of the crime. In submitting that the statements were not voluntary, Mr. Lindsay stressed first, the primitive state of the people as shown by their belief in sorcery, but mainly the fact that the prisoners were in custody, away from home, and taken without invitation to Yagusa, so that each “was ‘impliedly’ threatened that he would not be freed from detention until he had confessed”, as a similar argument was phrased by McTiernan J. in his dissenting judgment in Smith v. The Queen[dlviii]²⁴. McTiernan J. cited authorities which indicate that, in the case of normal prisoners, this argument could not succeed, otherwise it would be difficult to see how any statement made to a person in authority could be admissible (ibid.). However His Honour clearly considered that if that was the general rule, it admitted of exceptions in the case of certain types of prisoner, and the passages I have read from the judgment of Wendo v. The Queen[dlix]²⁵ specifically state that the fact that the prisoner was under restraint is a relevant circumstance to be considered in deciding whether the accused’s statements are voluntary. Although I must make up my mind on the facts of this case, I cannot but point out that the facts for the defence were much stronger in Wendo v. The Queen[dlx]²⁶, in which the High Court upheld Ollerenshaw J.’s finding that the statements of the accused were voluntary. In that case accused persons were forcibly seized, kept in the bush and brought to the Court in handcuffs and some were questioned with the handcuffs removed from one wrist only.

In this case I am satisfied that although the accused were in custody, but certainly not under conditions of severe restraint, they understood, and the terms of the caution given them at Yagusa were sufficient to make them understand, that they had a free choice to speak or remain silent. I am accordingly satisfied that the accused persons’ answers to the questions at Yagusa were voluntarily made.

Mr. Lindsay next asked me in the exercise of my discretion to exclude these admissions from evidence. Now the police officers were quite entitled, after the usual caution, to take down any statement which the accused wish to make. But the accused’s being asked the questions I have referred to whilst in custody, was a plain breach of the third of the Judges’ Rules that persons in custody should not be questioned even after the usual caution is administered, as explained by Williams J. in Smith v. The Queen[dlxi]²⁷. It will be noted that in Wendo v. The Queen[dlxii]²⁸ Taylor and Owen JJ. expressly referred to the fact that in that case the officers concerned had carefully refrained from questioning the accused whilst in custody.

Now although the caution may have been otherwise sufficient, certain statements, which I referred to, made to both Fum and Falupa were improper. In the case of Alfred Brown, John Bruce[dlxiii]²⁹ cited by Williams J. in Smith v. The Queen[dlxiv]³⁰ before the Court of Criminal Appeal, the caution given by a police officer, contained this statement, “I am satisfied you both know something about taking the glass from the window in Ashwell’s shop on the night of 20th April and stealing the goods”, before the persons were asked, did they care to say what they knew, and the Court held, following R. v. Winkel[dlxv]³¹, that the statements made by the prisoners were inadmissible and quashed the convictions. The head note reads “The police have no right to suggest by questions to a person detained in custody that they have evidence of his guilt. Answers to such a suggestion are not admissible in evidence”. The only note I have of R. v. Winkel[dlxvi]³² is that contained in the English Empire Digest, vol. 14, p. 416, which states:

“No police officer has a right to put any questions to a person after he is once in custody. To say ‘it is alleged so and so’, stating to a prisoner what has been alleged against him, is only a subtle form of cross-examination.”

Mr. Newport offended in this respect by stating to Falupa, “You have caused some trouble” and more so by the statement, “I would like to see the place where you killed the person”. Sub-Inspector Thackeray was similarly wrong in informing Fum, before he questioned her, “You have been in some trouble” and, “Another thing is that I want to know what you did when the man was killed”. What is objectionable about the statements is that they suggest that whatever the accused states, he will be confronted by evidence in the possession of the police, in the case of Falupa that he actually killed the deceased, and that, in the case of Fum, that she was involved in that “trouble”, and was in the vicinity when the man was killed; and indeed, each might as well admit his guilt.

Mr. Lindsay next submitted that it is necessary only to look at the first question put to Falupa. “Is this the hammer you used to kill the dead man”, and to Fum, “Did you grease the dead man”, to reach the conclusion that the aim of the cross-examination of each was to extract damaging admissions from the accused. In my opinion this submission is sound. Indeed the production of the hammer to Falupa and the “loaded” question then put to him, could only have been intended to trap Falupa into making an admission.

I have on a former occasion set out the circumstances which are relevant in determining whether a breach of r. 3 of the Judges’ Rules should lead a court to exclude the admissions from evidence, R. v. Kom[dlxvii]³³. I have no doubt that it would be unfair to the accused, both simple village natives, to admit these admissions made during cross-examination by skilled European police officers, and I accordingly reject them.

Again I have no doubt also that the admissions made by each accused in the long interviews at Goroka police station must be rejected. I need only go so far as to say that, on the threshold, the Crown has failed to satisfy me that the answers were voluntary, having regard to the unfortunate, if well meant, terms of the caution.

I must bear in mind Lord Parker’s words in R. v. Smith[dlxviii]³⁴: “In deciding whether an admission is voluntary the Court has been at pains to hold that even the most gentle, if I may put it in that way, threats or slight inducements will taint a confession”. In telling the accused at the outset that “The government and the law are here to help all the people; the aim of the law is to look after you. . . . You should not be afraid of ourselves or the Judge just because you are in trouble”, in my opinion, these words, taken with the remainder of the caution, were very likely to raise in the minds of these native accused, the hope that if he or she did speak up, some such help would be following, and this was an inducement, slight it may be, but sufficient “to taint the confession”. I wish only to add that, unfortunately, the lengthy terms of the caution were so confusing, as Mr. Lindsay rightly submitted, that I could not be satisfied that it communicated to the accused that each had a free choice to speak or remain silent.