Moro, Regina v [1975] PGSC 24; [1975] PNGLR 14 (18 October 1974)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 14 - Regina v Kar Moro

[1975] PNGLR 14

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

KAR MORO AND 16 OTHERS

Mount Hagen

Lalor J

18 October 1974

CRIMINAL LAW - Evidence - Confessions - Admissibility - Voluntariness - Meaning of - Onus and standard of proof of voluntariness - Discretionary power to reject in all the circumstances of the case - Particular circumstances including assaults, intimidation and non compliance with the Human Rights Act 1973.

In criminal proceedings:

N2>(1)      Only confessions which are voluntary will be admitted in evidence; that is confessions which are made by the accused in the exercise of a free choice, and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent opportunity or undue insistence or pressure. A confession will not be voluntary if it is preceded by a threat or a promise by a person in authority unless the inducement is shown to have been removed. Reg. v. Toronome-Tombarbui, [1963] P. & N.G.L.R. 55 referred to.

N2>(2)      The onus of proving that confessions are voluntary rests with the prosecution.

N2>(3)      The standard of proof to be applied in establishing the voluntariness of confessions is that of the balance of probabilities.

On a charge of wilful murder the Crown sought to adduce in evidence certain verbal confessions made by each of the accused on the day of the alleged murder and whilst in custody and subsequent written confessions made on the following two days and whilst still in custody, the admissibility of which were challenged.

Each of the accused had made allegations of assaults and intimidations and there were large conflicts between the confessions themselves and the medical and other evidence. The evidence further established that the accused were arrested for questioning in relation to the murder, not on any reasonable suspicion of having committed the offence and contrary to s. 11(1) of the Human Rights Act; that they were not informed of any valid reason for their detention as required by s. 11(2) of the Human Rights Act; that they were not taken before a magistrate as soon as practicable as required by s. 11(3) of the Human Rights Act; and that there had been a deliberate failure to observe the directions and the spirit of the directions as to the conduct of investigations.

Held

N1>(1)      Quite apart from the evidence of assaults and intimidation the verbal confessions should be excluded in the exercise of the court’s discretion in all the circumstances of the case, on the basis that those circumstances were likely to and did in fact produce untrue confessions and additionally were obtained by such continued illegal actions by the police as to make it unjust that they should be used in evidence.

R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133 referred to.

N1>(2)      The subsequent written confessions could only be admitted if the circumstances under which the first confessions were rendered inadmissible had been shown to have dissipated, and this not having been shown the written confessions should be excluded also.

Reg. v. Smith, [1959) 2 Q.B. 35, at p. 41, and Reg. v. Laird [1893] NSWLawRp 85; (1893) 14 L.R. (N.S.W.) 354 applied.

Trial

Kar Moro and sixteen other accused were charged with the wilful murder of a man Kiap Kogor on 19th July, 1974. Evidence was led of certain verbal admissions made on the day of the murder and whilst in custody and objection to their admissibility was taken by the defence. Counsel for the Crown, also sought, with the consent of defence counsel, a ruling on the admissibility of certain written confessions taken on the following two days and whilst still in custody. The question of admissibility was argued as if upon the voir dire and the following written judgment delivered.

Counsel

G. L. Georgeson, for the Crown.

K. R. Roddenby, G. T. W. Toop and T. L. Konilio, for the accused.

Cur. adv. vult.

25 November 1974

LALOR J: In this matter I am required to decide whether verbal admissions made by each of the defendants should be received as evidence in their trial.

The accused are charged with the wilful murder of a man Kiap Kogor on 19th July, 1974.

The circumstances in which the charge arose were as follows. On Friday, 19th July, 1974, a police party consisting of three constables of the Criminal Investigation Branch and five general duties constables accompanied the deceased Kiap Kogor to Kogop Village in an open police utility.

Kiap Kogor was in custody on a charge of having murdered a man Koli of Kogop Village on Sunday, 14th July. The purpose of the visit to Kogop Village was to obtain the axe believed to have been the murder weapon.

Kiap’s wrists were handcuffed and he was further handcuffed to the wrist of one of the constables; he was travelling in the open back of the utility together with five constables.

The police party drove through a sing sing ground situated some fifty or sixty yards before Koli’s house where the axe they were seeking was. At the sing sing ground there were a considerable number of people variously estimated from 100 to more than a thousand who were taking part in a mourning ceremony for Koli. On all the evidence the higher figure would appear the closer estimate.

The vehicle then continued on to Koli’s house where it was turned round and all the police except the driver, and the prisoner Kiap alighted. Kiap was taken into the house by Senior Constable Mavirit who was in charge and was accompanied by Constables Aigibe and Tomamang. The axe sought was taken possession of and some photographs taken. The party was in the house about five minutes.

When they came out of the house or shortly afterwards a group of village people estimated between 100-200 rushed to the police car. An estimated 40-50 men armed with axes obviously about to attack were amongst them. The police were unarmed except for three tear gas canisters which were in the utility. Senior Constable Mavirit, acting promptly and with courage, got Kiap and his escorting constable on to the back of the utility as it was being attacked. He ordered the driver to drive away and was himself pulled to the ground as he attempted to join Kiap and the escorting constable on the utility.

The other police were justled aside by the crowd and some, according to one police witness, ran away.

The driver hampered by the crowd, made several attempts to drive off and was able to do so only by leaving the road and driving through a garden. During this time the attackers were aiming blows with their axes at Kiap. He and his escorting constable because of the handcuffs were defenceless and Kiap received seven axe wounds: two of these were fairly immediately fatal; one was fatal but would, of itself, not have caused a quick death, and the others were not, of themselves dangerous to life. He died on the utility. No blows were aimed at or struck any of the police.

The police vehicle drove straight to Mount Hagen police station, and then took the dead body of Kiap to the hospital. The remainder of the police were driven to the main road by Mr. Pena Ou, M.H.A., who was present at the sing sing ground, where they obtained a lift until they were met by police cars on the road and were driven to Mount Hagen. None of the police at this stage claimed to be able to identify any of the attackers. More than a month later Senior Constable Mavirit did claim to be able to identify two of them.

In the meantime a mobile squad of thirty-two men had been dispatched to the village where they arrived about 3.45 p.m. This would have been some three quarters of an hour after the attack. They were armed with the standard weapons of a squad including shotguns and tear gas. On arrival they took up formation around a group of seventeen or eighteen men who were seated on the ground at the sing sing ground. A councillor from Kogop Village Simbil Kauli was also present at the sing sing ground. He gave evidence that the men seated on the ground at the sing sing ground — the accused — had been at the mourning ceremony and had remained at the sing sing ground when Kiap was killed near the house and were still there when the mobile squad arrived. Gai Nuwi a committee man gave evidence that he, also, was at the sing sing ground when the killing took place with the eighteen men and the councillor. He stated that at the sing sing ground they could hear people calling out that Kiap was being killed at the house but could see nothing because of the crowd. At this a lot of the people left the sing sing ground but the accused, the councillor, and himself remained. They were there when the police utility drove back from the house and when the mobile squad arrived.

Some ten minutes after the arrival of the mobile squad further police arrived including senior officers. The mobile squad was ordered to search the village for suspects. They found none. The police evidence is that Inspector Kansam, the commander of the mobile squads spoke with the councillor for about an hour, and then told him to inform the eighteen men who had remained at the sing sing ground that they would be taken to Mount Hagen police station for questioning in connection with the murder. No police spoke directly with these men — the accused. The mobile squad then formed two lines from the accused to the police vehicles and took the accused between the lines of police to the vehicles. They were then driven to Mount Hagen police station. They were taken away about 4.30 p.m. and would have arrived at the police station by 5.00 p.m.

At the police station they were put in the holding cell under guard. They were not fed that night. At about 7.30 p.m. Senior Constable Mavirit commenced interviewing them individually and it is concerning his evidence as to those interviews and the evidence of Constable Yals who interviewed one of the accused that the question of admissibility arises.

To date I have been giving a broad account of the facts leading up to the disputed confessions. Now, before looking at the confessions themselves I will explain in simple language why the court must consider whether to accept these confessions and the manner in which I must consider this.

A criminal court has the duty of punishing persons who are guilty of offences. This is to protect the public from persons who commit offences: so that good order may be preserved and the persons and property of citizens may be safe.

At the same time courts protect innocent people since the law requires that before any person may be convicted and punished he must be shown to be guilty with certainty. It is not enough that the police or any person comes before the court and says that he thinks a person is guilty. He must be shown to be guilty by evidence.

Now there are different kinds of evidence. It may be the testimony of persons who saw a man commit an offence, it may be evidence of things used by a person to commit an offence such as in this case bloodstained axes belonging to the accused or it may be admissions by accused that he committed the offence. In this case, except for the two accused whom Senior Constable Mavirit said he saw, there is no other evidence except the admissions which the accused has made. Therefore, it is important to consider whether these admissions are of a kind which the court can accept as evidence of the guilt of the accused.

In considering confessions the law lays down certain rules for the court.

Firstly it will only accept confessions which are voluntary, that is which are made by the accused in the exercise of a free choice, and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or undue insistence or pressure. Nor will a confession be voluntary if it is preceded by a threat or a promise by a person in authority unless the inducement is shown to have been removed. (See authorities collected in Reg. v. Toronome-Tombarbui[xi]¹.

The reason for this is that a confession which is not voluntary is likely to be untrue. And if an untrue confession were to be acted upon it would mean that an innocent person would be found guilty and punished for something which he had not done.

The prosecutor must show the court then that the confession is voluntary before it will be admitted as evidence.

The question I must ask myself is whether in this case the prosecution have shown that the confessions which were obtained from accused were made of their own free choice and not because of force or intimidation or pressure in the circumstances under which they were obtained.

I may say at the outset that I am unable to find that confessions in this case were voluntary for the following reasons.

Firstly, there are the allegations of assaults and intimidation which have been made by all of the accused in their evidence. I will not set them out in detail here but they include allegations of punching, kicking, slapping and various kinds of intimidation. In every case, these were alleged to have occurred after the accused had denied that they had taken part in the killing. In other words the allegation is, that their statements made of their free choice were that they were not involved: the statements made after their will had been overborne by assaults etc. were that they were involved.

I have to ask myself has the prosecution shown me on the evidence that it is more probable than not that these assaults etc. did not take place. In holding that I am not satisfied that they did not take place I am not making a positive finding that they did take place. I do not consider this question and make no finding on it as there may well be other proceedings with a different onus of proof.

The allegations of violence are made against Senior Constable Mavirit who was the interviewing officer in all cases save one, and Constable Eava who was present throughout the interviews. Both have denied them in detail. But neither of them were impressive witnesses. For example, I cannot accept Senior Constable Mavirit’s evidence that the accused were all seated during the interviews. All of the accused and the police interpreter say differently. This was a not insignificant part of the evidence, as the detail of the alleged assaults involved the accused being standing. Constable Eava’s evidence was in part frankly incredible. He stated in his evidence in chief that those who could not speak Medlpa were not interviewed. In cross examination he was emphatic that Senior Constable Mavirit cautioned each accused before he commenced the interviews. Also that Senior Constable Mavirit did not ask any of the accused whether they had hit Kiap Kogor with an axe. All of this evidence was directly contrary to all the other evidence of both the police and the accused as well as the written statements taken by Senior Constable Mavirit.

Again the whole conduct of the interviews on the police evidence was not such as to inspire confidence that the accused would be permitted to make the statement of their choice. Senior Constable Mavirit stated that he knew the Judges’ rules relating to the interviewing of prisoners and the Commissioner’s of Police instructions that they were a matter of police discipline and must be observed. He stated that he knew the accused as persons in custody should have been cautioned but did not do so. He excused himself on this point by stating that he was instructed not to caution them by Inspector Vonow who was apparently acting as adviser to the local C.I.B. One can only speculate where, if Senior Constable Mavirit was prepared to deliberately disobey instructions, he would draw a line.

My general impression is of junior and relatively inexperienced officers being given an investigation which warranted more senior and experienced officers. Add to that, both Mavirit and Eava, having been involved in the afternoon incident, could hardly have been expected to be detached in their attitude. Eava was quite frank about his personal involvement and attitude to the interviews. He stated that he was angry because of the afternoon incident and regarded his job at the interviews “to get confessions as to what happened that afternoon”. Mavirit’s evidence, confirmed by his notes, shows that this too was his aim. The remarks of Taylor J. in Smith v. The Queen[xii]² are apposite to this situation.

“It may, perhaps be said with some force that, at that time, they were concerned not so much with investigating the crime as with incriminating the appellant. If this was so — and it is probable that it was — I would find it difficult to attach any vital importance to the rest of the interrogation on this occasion.”

The confessions themselves also throw grave doubts on their voluntariness. As has been seen the medical evidence establishes beyond doubt that the accused was cut seven times. Yet ten of the accused specifically admit to having cut the accused. Obviously at least three of these confessions are untrue and have been induced by circumstances which would make a man admit to a capital offence which he could not have committed. And if these circumstances operated to induce three men to make false confessions why would they not have the same effect on the other accused. All of them made confessions which the prosecution have put forward as incriminating them in the murder.

Another unsatisfactory feature concerns the axes allegedly used by the accused. On the evidence the accused had axes with them at the sing sing ground. No axes, blood-stained or otherwise are exhibits in the case. Nor was any evidence given as to whether the police took possession of them or not. If the accused or some of them had cut the deceased a short time before the evidence of the axes could have been of great value. The fact that they have not been produced gives some weight to the accused’s story.

The evidence of each accused was straight forward, detailed, and individual to the accused as to make the probability of intervention unlikely. On one point only was there any significant query as to their veracity. The senior resident magistrate gave evidence that he had inquired of the accused when they were charged whether they had any complaints about their treatment and none of the accused made any. Assuming that this was properly translated to the accused, and there was no evidence that it was, I do not think that their failure to complain is of sufficient relevance to outweigh the other factors I have detailed. (As to relevance see Ready v. Brown)[xiii]³. In my experience there are other explanations other than the non-occurrence of the events complained of. Illiterate persons unused to courts often require to be asked a question several times before its significance penetrates. Again the question assumes that the accused was aware that the police actions were a subject of complaint. In my experience, persons with little acquaintance of the law are inclined to accept the actions of persons in authority by reason of the fact of that authority. The concept of law as something independent of the person in authority is not a traditional concept.

Quite apart from the evidence of the assaults and intimidation I would exclude the confessions in the exercise of my discretion in all the circumstances of this case. I would do so on the basis that these circumstances were likely to and did in fact produce untrue confessions and additionally were obtained by such continued illegal actions by the police as to make it unjust that they should be used in evidence. (See R. v. Lee)[xiv]⁴.

Firstly the original deprivation of the accused’s liberty by the officer in charge of the riot squad was clearly illegal. The police evidence is that they were arrested for questioning in relation to the murder not on any reasonable suspicion of their having committed the offence. (See s. 11 (1) of the Human Rights Act).

Secondly, the accused were not informed of any valid reason for their detention as required by s. 11 (2) of the Human Rights Act.

Thirdly the accused were not taken before a magistrate as soon as practicable as required by s. 11 (3) of the Human Rights Act. The evidence before the court was that a magistrate is always available on Saturday mornings to deal with charges against persons arrested on a Friday afternoon as the accused were. As s. 11 (4) of the Human Rights Act says, the necessity or desirability of interrogating an accused is not a good ground for delaying bringing a person before a court, in fact, the accused were not brought before the court until the following Tuesday.

Fourthly the accused were arrested about 4.30 on the Friday afternoon. They were held in custody at the police station, given no food and then interrogated up till midnight.

Fifthly, as I have set out there was a deliberate failure to observe the directions and the spirit of the directions as to the conduct of investigations. The accused were clearly in custody because of their suspected involvement with the murder. No proper caution was given them in order to ensure that any statements they made were of their free choice, the form of questioning shown by the police evidence was clearly against the whole spirit of the rules, and I am far from convinced that it was not even more objectionable, as alleged by the accused, than is shown by the police evidence.

Finally, as set out above, the confessions themselves make it clear that they would be quite unsafe to act upon. As Dixon J. said in McDermott v. The King[xv]⁵:

“The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is an insistence upon questions or an attempt to break down or qualify the effect of an accused person’s statement so far as it may be exculpatory.”

And as Taylor J. said in Smith v. The Queen[xvi]⁶:

“Unless satisfied that I had been fully apprised of all the circumstances in which the confession had been made I would not think for a moment of acting upon it.”

I would add the comment that I am at a loss to understand why the proper procedure of investigating offences in the village and obtaining evidence before arrest appears to have been abandoned in many cases in recent years. It was done successfully for some eighty years under conditions far more primitive than at present and by members of the constabulary who had neither the education nor advantages of the present members of the force.

For the above reasons I hold that the evidence of the admissions made by the accused should not be admitted in evidence.

I am requested by counsel for the Crown with the consent of defence counsel in the event of so holding to consider the written confessions taken on the following two days.

In circumstances such as these, confessions made subsequently can only be admitted if the circumstances under which the first confessions were rendered inadmissible have been shown to have dissipated. (Reg. v. Smith[xvii]⁷ and Reg. v. Laird[xviii]⁸).

In the circumstances of the Crown case as outlined by the Crown Prosecutor I have no doubt that the same factors influenced the second confessions.

After the conclusion of the interrogations on the Friday night the accused were kept in a cell with only a few old torn blankets amongst them. Some sat up on the concrete all night, others lay on top of each other for warmth. Senior Constable Mavirit remained in charge of the investigation, organised the other interviewing officers, took some interviews himself and gave his notes from the previous night to the interviewers to act upon as the basis of the interview.

Even though the accused had admitted involvement in the murder the night before they were not told before being interviewed that they were charged with murder and cautioned on this basis. The accused were questioned, and in some cases cross examined, on the basis of their admissions the previous night.

In the circumstances I could not hold that the effect of the Friday night had been dissipated: accordingly these confessions are not admissible.

This is confirmed by an examination of the content of the written confessions. In these, fourteen of the accused admit to actually hitting the accused with axes: exactly double the number of persons who in fact did so. For the same reasons I gave in relation to the earlier confessions of hitting the deceased I hold that this alone would make it quite unsafe to admit them as evidence.

I have spoken a good deal as to the mistakes made by the police. Now I wish to speak to the village people here and in particular to the councillors and committee men.

There is no doubt Kiap was murdered. He was in custody and was as much entitled to a fair trial as are the accused in this case. But a group of village people took the law into their own hands and murdered him. This was done in the presence of a large number of people. There were many eye witnesses yet none have come forward and given information to the police.

It is the duty of every person to assist in the apprehension of people who commit serious crimes. In particular, councillors and committee men have a special responsibility because of their position. I have no doubt that in this case the identity of the men who killed Kiap is known to hundreds of people who witnessed the killing. These men should be punished and it is the duty of every person to assist in their identification if they are able to. If you do not assist you must bear some of the blame if the wrong people are arrested.

Ruled accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[xi][1963] P. & N.G.L.R. 55.

[xii][1957] HCA 3; (1957) 97 C.L.R. 100, at p. 141.

[xiii](1968) 42 A.L.J.R. 87.

[xiv](1950) 82 C.L.R. 133.

[xv] (1948) 76 C.L.R. 501, at p. 513.

[xvi][1957] HCA 3; (1957) 97 C.L.R. 100, at pp. 138-9.

[xvii] [1959] 2 Q.B. 35, at p. 41.

[xviii][1893] NSWLawRp 85; (1893) 14 L.R. (N.S.W.) 354.