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

CORAM: OLLERENSHAW, J.

4th and 5th December, 1968.

REGINA v. GINITU ILEANDI
THE SON OF TUCAIODOHI, AND OTHERS.

In this trial of Ginitu, Ebobo and Moles, three men of Sideia Island who are charged with wilful murder, counsel for Ebobo has taken objection to the admission in evidence of a confessional statement made by Ebobo to a European police officer in the police station here at Samarai, during the course of the investigation into the death of the infamous old sorcerer of Sideia, Keabana, the victim named in the indictment.

Counsel manifestly was inspired by what was said by Dixon J., as he then was, in McDermott v. The King  concerning the flexibility of the application of the relevant common law principle of voluntariness, to the effect that the category of inducements that may avoid the admissibility of a confession is not limited to the statutory threats and promises and such like and is, indeed, unlimited.

And so it was that he saw his three objections to the admissibility of his client's statement as falling within new categories of inducements.

His first objection was that, as he claimed, material evidence would show that a cadet police officer, who had met the three accused upon their arrival at Samarai, had told Ebobo (inter alia) that he didn't have to say anything at that time but that when the police inspector came he, the inspector, would question him and had used words implying, at least, that Ebobo would have to answer the inspector's questions. His second objection was that the native police sergeant, who had interpreted between the inspector and his client, had preceded his interpretation by a warning to his client that he must speak the truth, in such terms as to imply that otherwise he would be in trouble. Counsel pointed to evidence already given that indicated the possibility, if not probability that this had taken place. Eventually he was persuaded to agree that it was not necessary to consider these objections as falling within some new category or categories of inducement; if they were not strictly statutory threats they could be considered under the general objection against compulsion or pressure.

Counsel's third objection was that by the arrangement of the police inspector his client Ebobo was present there in the same room in the police station while the inspector, during a not inconsiderable period of time, took a statement from the firstly-named accused, Ginitu, the obvious leader of the three accused, of whom there already is evidence that he struck the fatal blows and was a spokesman of the events of the killing and a willing, if not proud confessor of his actions. Ginitu told this police officer that he, Ginitu, took a stick from his home "and this man Ebobo followed me", how the three of them travelled by canoe across the inlet and went up to the old man's house, how ho had used his stick a number of times and how then Ebobo had hit the old man with his closed fist, also a number of times.

Counsel, conceding upon authority that a statement made by one accused may be put without comment to another accused, submitted that what had happened here not only quite a different thing but was such as to amount to an inducement to Ebobo to confess, an inducement that robbed the confession of a voluntary character and that in any event, the confession should be rejected by me in the proper exercise of my power under the discretionary rule.

All these three matters were carefully investigated in a voire dire in which the Crown called the police inspector and also called the cadet police officer and the interpreting sergeant, who were the two persons involved, respectively, in the first and second objections raised.

In the upshot counsel abandoned, I think properly, his first and second objections, which, as it turned out, were not supported by the weight of the evidence to be considered and the probabilities clearly arising from such evidence.

He did, however, press his third objection that Ebobo was induced to confess because he had just heard Ginitu's confession to the police inspector, a confession that involved and indeed included Ebobo in the killing, and it is necessary for me to decide as follows: whether in all the circumstances Ebobo's statement was voluntary in the common law sense, and, if it were, whether I should exclude it in the proper observance of the discretionary rule.

Although I suspect that counsel has overlooked it I cannot avoid what I consider to be an important element of an objectionable inducement, namely, that it should be an inducement that overbears a person's will not to confess. There is always some inducement that cases a man to speak and likewise to confess. If every one of such inducements were to be considered to render a confession involuntary then no confession would be admissible. I would refer generally to the judgment in Regina v. Toronome-Tombarbui  and take the liberty of repeating from it two citations which I think, with respect, are not always appreciated insofar as they incorporate in precise, if brief words what it is that avoids the "voluntariness" that is so dear to the common law:

"The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or threat. A confession is voluntary in law if, and only if it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." Wan v. U.S. per Brandeis J.

It is necessary to introduce my second citation by saying that in the High Court this following is said to be the first of the two imperative rules of the common law regarding a confessional statement – 

"(1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure,……" The King v. Lee per Latham C.J., McTiernan, Webb, Fullagar and Kitto JJ. In each citation the italics are mine.

What Ginitu said in his statement is not evidence against Ebobo but there is already the evidence of several villagers to the effect that the three accused men together came to them between the middle of the night and the morning and that Ebobo stood by Ginitu while Ginitu said that they had killed the old man, that he had hit him and that the villagers should go and bury him.

Ebobo in his statement, which is in evidence before me in this voir dire, said after describing the killing:

"Then we left him and went back to the village. We told all the people and next morning the village people went to plant him. The two of us went to Sideia Mission and we report to Father and he sent a message. We waited for the boat and when it arrived we went to Samarai".

It is only too obvious, provided that one does not leave common sense out of the thing, that Ebobo went with, and acted with, and desired to be associated with Ginitu in the killing and in the confession. In all the circumstances it would be irresponsible even to suggest — after all the evidence and probabilities have been considered —that his was not a voluntary statement. Not only did he stand by Ginitu when he spoke to the villagers for the three of them but also voluntarily he went to the Mission to report their deed and he was party to the sending of a message to the Government at Samarai and voluntarily, and indeed, as an instigator of the journey, came here to repeat his acquiescence in Ginitu's relation to the police of the fatal encounter. Ebobo's statement was voluntarily and willingly given.

Smithers J., when he was with us, in a judgment in a case the name of which escapes me and I in e.g. Regina v. Momote-Kulang  mentioned the anxious willingness of natives generally to describe their part in an episode of violence. Ebobo, I consider, was more than anxious to confess his part because he believed that he had assisted in ridding their community of a scourge, a Minotaur, responsible over the years for very many deaths of fellow Sideians.

After what I have already said it will not surprise that I feel I cannot exclude Ebobo's statement under the discretionary rule.

I wish to say that I do not mean to approve, as a general rule, of a police interview in which one suspect is kept in the same room as another while that other is examined and confesses. I can imagine circumstances in which such a procedure would not be fair to the man-in-waiting.

I will repeat here the test I always apply, from the judgment of Dixon, J., as he then was, in McDermott v. The King , where His Honour said that it is a broad question of forming

" ..... a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused."

Notwithstanding counsel's submission in this voire dire, some day, I suppose, it will be argued before me, from the office of the Public Solicitor, that in such circumstances as I have described it was unfair to leave a colleague in a killing outside while the leader and spokesman told his tale: it will be suggested that the man kept outside might have had such thoughts as induced him to adopt this attitude: "Well I don't know what he has said but this is my story." !!

Nevertheless I would say that, generally, it would be a bad practice to keep a suspect present while another is interviewed but here we have men who acted in concert, who reported in concert through their spokesman to their fellow villagers and to their Mission. There was nothing unfair in having them together in reporting to the police s indeed, in this instance, it would have been, at least, unkind to Ebobo to require him to remain outside while Ginitu told his tale.

I order that Ebobo's statement be admitted in the trial as evidence against him.

SECOND VOIR DIRE

JUDGMENT

Counsel for the thirdly-named accused person, Moles, has taken objection to the admission in evidence of a statement that he, too, made to the European police officer in the police station here at Samarai during the night of the day upon which this officer had commenced his investigations by interviewing Ginitu and then Ebobo, the firstly-and secondly-named accused.

In response to my usual enquiry counsel stated that his objection was upon two grounds, namely, that his client's statement was confessional in character but was not voluntarily given within the common law rule and that, in any event, it should be excluded under the discretionary rule.

These matters were investigated in a second voir dire during which it was given in evidence by the police inspector that, having interviewed the two persons who were suspects in custody, Ginitu and Ebobo, he commenced to interview the persons he had been informed were the witnesses. There is already convincing evidence that Moles, with whose statement I am now concerned, instigated the whole thing because it was his wife whom Keabana had selected as his next victim. She was hot and sick and, as just another incident in his continuing powerful wickedness, he had pointed his greatly feared sorcery at her before departing by canoe from the hamlet - as appears from evidence in this voir dire - about seven o'clock in the evening to go to his home across the water. The three men followed him at about nine o'clock.

There is also evidence in the trial to the effect that, although Moles was one of the three, he did not strike the deceased at any time.

Both of counsel's objections arose from the fact that the police inspector took this statement from Moles at the police station without giving him any warning or caution at all.

In the upshot counsel abandoned his objection to the admission of the statements as being involuntary: I think that this was a proper course. In my opinion a confession may be voluntary although the confessor has not been told either expressly or impliedly that he has a right to remain silent be he so minded. In my view it is compulsion or pressure that offends against the common law, not the absence of a caution. The common law maxim is "nemo tenetur se ipsum accusare" — no one is bound to incriminate himself; he cannot be forced to do so and if he is then his confession is inadmissible. This is the reality of the thing as I see it and the question is not was he cautioned or warned bit was he overborne against his will to remain silent. This, I think, is the proper interpretation of the citations I have made from The King v. Lee  and Wan v. U.S.  Moles was a willing confessor to his part — that is to his going to his cousins Ginitu, and telling him and his friend Ebobo of the dire threats to the life of his wife, to his accompanying the others and to his presence at the door of Keabana's home as they carried out their object.

I should, perhaps, add that, as is not uncommon in the Territory, it already appears that all three of them believed that Moles was not a party to the offence because he did not strike. The Crown relies upon Moles' statement as confessional in the sense that Moles, it is alleged, brought himself within the provisions of Section 7 of the Code, of which, of course, he and the others were quite unaware. I add, too, that I am sure that even if roles had been aware of this danger he would still have been a willing confessor.

I must come now to the ground that counsel for Moles has pressed upon me vigorously in support of his objection, namely, that it was obtained in circumstances that call for its rejection as a matter of discretion.

Although he wished to rely upon the circumstances in whatever way they might support his objection, he strongly pressed me with the third of the Judges' Rules to the effect that persons in custody should not be questioned without the usual caution being first administered and he submitted that Moles was in custody, that Moles was in exactly the same position as was the appellant in Smith v. The Queen  and he cited the relevant passage from the judgment of William J. in that case . In the course of those submissions he stressed that the interview took place in the police station at night.

Counsel also strongly pressed what he referred to as the second of the new Judges' Rules to the effect that as soon a police officer has evidence that a person whom he is interviewing has committed a crime he should caution him.

In all the circumstances counsel submitted that the police inspector's conduct was improper and that it would therefore be unfair to admit the confession that Moles had made to him.

I would say, at first, that I attach no significance to the fact that the interview took place at night. Anyone who has heard our natives talking around the fire into the small hours, singing all night and has had experience of their other nocturnal activities should understand me when I say that generally they would be unaffected by questioning at night and indeed, I think would feel more confident in confrontation with a police officer in the night than in the day time.

I cannot take seriously the suggestion that Moles was in custody. He had come to Samarai not merely voluntarily but willingly and while he was here until the completion of his statement he had the freedom of the island and was free to leave it if he wished.

It is true that he was cared for by the authorities on the island and that on this night he was summoned to the police station but if his presence there involved his being in custody then every witness who attends a police station is in custody. In Regina v. Toronome-Tombarbui  I explained how the accused person in that trial was in custody although there was no physical restraint imposed upon him and he was free to walk about the post and I cited from the judgment of Williams J., in Smith v. The Queen  upon which counsel now relies: see also Regina v. Amad . Moles was not in a position at all like that of the appellant Smith v. The Queen  nor like that of the accused person in Regina v. Toronome-Tombarbui  and I propose to say no more than that he was not in custody. I do add, what, perhaps, I should have expressly said earlier, because it is a significant consideration, that I am certain that he did not think he was in custody if for no other reason than that he didn't think he had committed any offence: he thought he had done no more than witness the offence of the others.

The substantial matter for my consideration as pressed in cross-examination and in argument by counsel for Moles is that the police inspector continued to take down in writing the statement of Moles after a point at which he should have realized that there was evidence coming from the mouth of Moles that was incriminating him. It is true that the police inspector took the whole statement without giving any caution until Moles had made his complete confession. I say "complete confession" in the sense that it comprises the essentials upon which the Crown relies in charging Moles with wilful murder in reliance upon Section 7 of the Code: whether Moles does qualify under that section is still an open question.

The inspector has given two relevant explanations: one that he did not administer the caution to Moles before commencing the interview, he says, because he believed from the information he had received from the police, who had been involved in the matter up to this stage, that Moles was a witness and not an offender. I have no hesitation, upon all the evidence before me, in accepting this explanation. Indeed in Moles' statement, which is before me in this voir dire, Moles says: "I did not go into the house, for when we were in the canoe Ginitu and Ebobo said to me: 'You cannot kill the pouri-pouri man because he has worked poison on you and your meri. We will kill him and you will be the witness'." This illustrates what I have already said about the natural lack of any appreciation of the implications of Section 7 that is common amongst our native peoples.

The inspector's other explanation, which I gather counsel finds difficult to accept, is that as he took down the statement he concentrated upon getting it word perfect through the interpreter to the exclusion of appreciating the significance of the context in which the words came and were recorded that it was not until he read over what he had written that he realized the incriminating significance of what Moles had said to him and he had already recorded.

If I were to judge this question in the light of the experience of, and standards achieved by the Judges of this Court after long experience at our respective Bars I might find a difficulty in accepting this explanation. I know that such a Judge, who is obliged to keep manuscript notes of all the evidence and who regards it as a supreme, duty that such notes should be accurate, nevertheless follows the sense of what he is so carefully recording — except where inexperience, inconsiderate and sometimes ignorant counsel rush on with their questions beyond the capacity not only of the Judge, but also of the interpreter. However, I do not think it would be proper to apply that standard to a police officer, particularly to one who had been led to believe that he was interviewing a witness and to whom it had not occurred that the person he was interviewing might be involved in criminal responsibility. I think that many persons accustomed to taking dictation, taking it accurately, will appreciate with me the inspector's position. I accept the inspector's explanations and I cannot accept the submission that he acted improperly in not giving a caution before or during his taking of Moles' statement.

I would now take this opportunity of expressing the opinion that in considering an objection taken in reliance upon the discretionary rule it is better to adhere to the question of fairness to the accused as the ultimate test rather than to rely upon the question of improper conduct — a test that would be subjective in relation to the police inspector: A test in which, even if the decision were favourable to the police inspector, as mine is here, it might still be unfair to the accused to admit a confession not improperly obtained, in the sense that there was no subjective impropriety on the part of the police officer.

I have already, in my judgment upon the first voire dire in this trial, referred to the test I have frequently adopted as prescribed by Dixon J., as he then was, in McDermott v. The King  and in response to counsel's emphasis upon impropriety – which I repeat I reject as a matter of fact – I would take this opportunity of emphasising by citation what was said relevantly to this point in the judgment in The King v. Lee . The report is not available to me here at Samarai but I am indebted for this passage from that judgment to the judgment of my brother Frost in Regina v. Josep Kom :

It is indeed, we think a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused's statement. It is better to ask 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. (The italics are mine). We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J., (as he then was) in R v. Jeffries  …… His Honour said:

"It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

Before proceeding to consider whether it would be unfair or unjust to Moles to admit his statement against him I would point to the word "extracted" in the citation I have just made. I have already referred to compulsion in considering whether this statement was voluntarily made and I would observe here that this notion is included in this citation by the use of such word – extraction – and again explained in the conclusion of the passage from which I have cited from The King v. Lee . This passage concludes with this further citation from the judgment of Street J., as he then was, in R. v. Jeffries :

"The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence, or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence." (See also Regina v. Wendo and Others).

Of course there was no extortion by the police inspector but I must still consider whether it would be unfair to Moles to admit his statement, volunteered as I have held it to be, but given without the usual caution. In this connection, as I have already mentioned, counsel presses upon me the rule – Rile 2 of the new Judges' Rules as he has described it – to the effect that a police officer should give the caution as soon as he has evidence upon which he would charge a person. It must be remembered that the Judges' Rules of England are administrative or departmental directions, which, as I understand it, are accepted by the Department of Police here as guides to police conduct in investigations but are not here, any more than in England, rules of law. As I have said, I accept the police inspector's explanation that he did not realize the significance of Moles' statement until he had completed recording it and was reading it over, I add that even if the police inspector had had an earlier realization of the possibility of Moles' complicity in the offence and even if Moles were then in custody I do not think that that would be the end of the matter and that I would from these circumstances alone be obliged to find that it would be unfair to Moles to admit his statement. However I am not faced with such a situation in this trial. Moles was not in custody and the police inspector did not suspect Moles until he had said what he had to say. 

What happened then? Before asking him whether he would like to sign his statement the police inspector, now aware of its significance, did caution him and inform him to the effect that although he, the police inspector, previously had thought Moles was just a witness now he, Moles, would be personally involved in the court proceedings that would be held as a result of the killing because it appeared that he had talked with the other two about killing the old man and was with them when they did it so that if he didn't want to sign his statement after it was typed he didn't have to, that no one could make him sign it and finally he asked Moles if he understood that; to which Moles responded "Yes". The police inspector they asked Moles: "Do you want to sign the paper?" to which Moles answered; "Yes it is my true talk and I want to put my name on it".

Considering all the circumstances, not in the abstract but as the circumstances of this particular case, as, of course, the citations I have made in these judgments require, I can see nothing unfair in the use made by the police inspector of his position in relation to Moles. I have said I accept his explanations, I do this readily after hearing him in evidence, during which he was vigorously cross-examined, and the more readily do I accept his explanation of the late stage at which he cautioned Moles because he had early and late and repeatedly cautioned each of the others, Ginitu and Ebobo. Indeed one might say that the atmosphere at the police station at Samarai on the evening in question was heavy with caution. To the question why would he have not commenced with a caution to Moles as he had in the case of the others there is no answer but the explanation of the police inspector.

But, "having regard ……… to all the circumstances of the case" would it be "unfair to use his own statement against the accused"? It is true, as I have mentioned more than once, that there is evidence from which it may be inferred that Moles did not think that he had committed an offence but I do not for one moment consider that that is why so readily he narrated his part in the fatal enterprise.

It was not to escape the law that Moles stood back in the doorway and did not strike the sorcerer; I think that counsel for the Crown has suggested the correct explanation for the negative or rather the inactive role of Moles at the time of the actual killing that the three of them reasoned that Moles, being the husband of Keabana's chosen next victim, would bring upon her and or himself, the risk of more certain evil from the power of this sorcerer if he, Moles, appeared to be taking part in the killing of Keabana.

The three of them acted in concert, reported their actions in concert both to their fellow villagers and their Mission and together they willingly came to Samarai. I am entirely satisfied from all the evidence, which I do not think it necessary to refer to in detail, that roles would still have desired to narrate his part in the events leading up to, and the events at the time of, the killing even had he realized that he was providing evidence of a complicity on his part that would make him criminally responsible equally with his colleagues. I am also entirely satisfied that he would have persisted in relating his story even if the police inspector had cautioned him before he commenced it or at any time during his recital. In all the circumstances it would not be unfair to allow Moles' statement to go into the trial along with the statements of his colleagues.

I order that Moles' statement be admitted in the trial as evidence against him.

_______________________

Solicitor for the Crown: S.H. Johnson, Crown Solicitor.
Solicitor for the accused: W.A. Lalor, Public Solicitor.