SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PGSC 15; [1977] PNGLR 362 (26 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 362 - SCR No 1 of 1977; Re Rights of Person Arrested or Detained 

[1977] PNGLR 362

SC122

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 1 OF 1977 UNDER S. 19 OF THE CONSTITUTION

Waigani

Frost CJ Prentice DCJ Williams Kearney Pritchard JJ

27 April 1977

26 October 1977

CRIMINAL LAW - Evidence - Admissibility - Admissions by accused person - Failure to comply with s. 42(2) of Constitution - Admissions not rendered inadmissible - Constitution of the Independent State of Papua New Guinea s. 42(2)[ccclxxii]1.

Failure to comply with all or any of the provisions of s. 42(2) of the Constitution of the Independent State of Papua New Guinea, does not for that reason alone render admissions by an accused person inadmissible as evidence on his trial.

(Per Frost C.J. with whom Kearney J. agreed). But the National Court under s. 57(1) of the Constitution, in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of s. 42(2) of the Constitution should be excluded from evidence in the trial.

(Per Williams J.) If in a particular case it appears that there has been a breach of s. 42(2) then this is a matter for the trial judge to take into account together with all the circumstances of the case when exercising his discretion whether or not to admit evidence obtained following the breach.

Reference

This was a reference by the Acting Public Solicitor, to the Supreme Court of Justice pursuant to s. 19 of the Constitution of the Independent State of Papua New Guinea, which empowers the Supreme Court to “give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law....”

The question referred by the Acting Public Solicitor was:

“Does failure to comply with all or any of the provisions of s. 42(2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?”

W. J. Andrew and M. Kapi, to argue the affirmative case: Where s. 42(2) of the Constitution has not been complied with there are other Constitutional provisions, namely s. 23(1), and Sch. 1.2(1), s. 23(2), s. 57(1) and s. 155(4) which bear on the question of admissibility of confessions made to the police or arresting officer, and the Constitution being autochthonous (The State v. John Mogo Wonom [1975] P.N.G.L.R. 311) the duty to comply with s. 42(2) is mandatory. The Constitution, on its proper construction itself impliedly forbids the use of material obtained in breach of its terms, that is s. 42(2) and the people of Papua New Guinea have an unalienable right to have any confession rendered inadmissible if it were improperly obtained; R. v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321 referred to. Section 42(2) on its proper construction impliedly forbids the use of a confession obtained without the police first complying with its terms; R. v. Stafford [1976] 13 S.A.S.R. 392, R. v. Evans [1962] S.A.S.R. 303 at p. 307 and R. v. Harris and Daly (No. 2) [1975] 12 S.A.S.R. 270 at pp. 272-273 referred to. The effect of s. 37(10) of the Constitution on the breach of the provisions of s. 42(2) is to render confessional evidence received in breach of its terms, inadmissible against the person concerned. Commissioners of Customs and Excise v. Harz and Another [1967] 1 A.C. 760, McDermott v. The King (1948) 76 C.L.R. 501, and Miranda v. Arizona (1966) 384 U.S. 436 referred to.

K. B. Egan, to argue the negative case. The duty imposed upon a person, almost invariably a police officer, under s. 42(2) of the Constitution is to administer the caution required when they have arrested or detained someone, and accordingly not every record of interview situation will require a s. 42(2) caution to be given, but only those in which the suspect has been “arrested” or “detained” in the strict sense. Smith v. Reg. [1957] HCA 3; (1956) 97 C.L.R. 100 at p. 128 referred to. There is no specific obligation existing within the Constitution for the Court to rule that all confessional material obtained without compliance with s. 42(2) ought to be rejected for that reason alone, nor should the Constitution be interpreted as so requiring. The King v. Lee and Others [1950] HCA 25; (1950) 82 C.L.R. 133 at p. 155, McDermott v. The King (1948) 76 C.L.R. 501 at pp. 506-507, The Queen v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321, and Wendo v. The Queen [1963] HCA 19; (1963) 109 C.L.R. 559 at p. 570 referred to.

B. W. Kidu, Acting Principal Legal Officer: Section 42(2) of the Constitution is in mandatory terms and must be complied with; it is not ambiguous imprecise or incomplete and merely states in terms which are clear on the face of it what a person arresting or detaining another must do, and accordingly construction by implication cannot arise. Tinkham v. Perry (1951) 1 T.L.R. 91 at p. 92, Gahan (Inspector of Taxes) v. Chloride Batteries Ltd. [1955] 1 W.L.R. 277 at p. 283, Warburton v. Loveland, Ivie and Others [1831] EngR 74; (1831-32) 6 E.R. 806 at p. 809, Hare v. Gocher [1962] 2 Q.B. 641 at p. 646, and Richardson v. Austin [1911] ArgusLawRp 46; (1911) 12 C.L.R. 463 at p. 470 referred to.

As there are no other Constitutional Laws or Acts of Parliament which provide a remedy for a breach of s. 42(2) then the s. 23 remedy of sanctions is the Constitutional remedy. The court must still retain a discretion to exclude confessions where there is a breach of s. 42(2) of the Constitution in all the circumstances of the case. Section 37(10) of the Constitution, on its proper construction does not exclude any confession obtained before the trial commences, it should be construed according to the ordinary and natural sense of the words used. Republic v. El Mann [1969] E.A.L.R. 357 at p. 361 referred to.

Cur. adv. vult.

26 October 1977

FROST CJ: This reference by the Acting Public Solicitor relates to the Constitution, s. 42(2), which is contained in Pt. III, Div. 3. — Basic Rights. The section confers rights on a person who is arrested or detained. I shall refer later to its terms.

The question referred is:

Does failure to comply with the provisions of s. 42(2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?

It is useful to refer first to the scheme of the Constitution, in which that Division is placed. The Constitution commences with the Preamble, which concludes with an Acknowledgement of Basic Rights and Declaration of Basic Social Obligations. The Preamble is significant in matters of construction of the Constitution because it is expressly provided that, in the manner stated, it may be used as an aid to interpretation in cases of doubt. Constitution, Sch. 1.3.(1). Under the heading “Basic Rights” it is acknowledged “that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:

N2>“(a)    life, liberty, security of the person and the protection of the law; and

...

and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.” The portions I have underlined on the whole indicate that in the statement of the rights the legitimate public interest has been taken into account, and that the rights and freedoms have been included, subject only to the limitations on their protection as are expressly set out. It would be a wrong approach therefore further to cut down the operation of the Constitution, s. 42(2), in the interest of ensuring, for example, that the guilty do not go unpunished. Of the Basic Social Obligations, it is necessary for the purposes of this case to refer only to (f), which, in respect of the rights and freedoms of others, puts the obligation no higher than to respect them, an obligation which is non-justiciable — Constitution, s. 63.

Part I contains a number of introductory provisions which are not relevant upon this reference. Part II, The National Legal System, is significant because it sets out, in Div. 4 — General, two provisions much canvassed in the case, each of which purports to be of general application. I include the headings for convenience, although it is only headings which are not section headings that form part of the Constitutional Law. Sch. 1.3.(2). The passages underlined are material to issues raised in this reference. Only the relevant portion of s. 23 is set out.

N2>“22.    Enforcement of the Constitution.

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

N2>23.     Sanctions.

(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper ...”

It is to be noted that s. 22 comes into operation only if the Constitutional provisions recognizing the rights of individuals might “be left without effect because of the lack of supporting, machinery or procedural laws” (I agree with the judgment of the Deputy Chief Justice, which I have read in draft, that “machinery”, in its context, is used as an adjective). Similarly, s. 23 as a whole can have no operation if the Constitution or a statute provides for the enforcement of the provision imposing a duty, etc. Both the Acting Principal Legal Adviser and Public Prosecutor submitted that s. 23 was applicable for the enforcement of Constitution, s. 42(2), and the Acting Public Solicitor did not argue to the contrary.

This brings me to Pt. III, Div. 3 — Basic Rights. In Subdivision A — Introductory, s. 33, there is included a provision for the future enactment of other guarantees of rights and freedoms and further restriction of the limitations to be placed on any right or freedom, thus taking full account of the need to allow for future programmes extending the present range of basic rights. (Final Report of the Constitutional Planning Committee 5/1/4-5, par. 25).

The Basic Rights are divided into Fundamental Rights comprising right to life, freedom from inhuman treatment, and protection of the law. Subdivision B — Fundamental Rights. Each such right is set out in the passive voice, e.g. “No person shall be deprived of his life intentionally” — s. 35(1), without any reference to any person under a corresponding duty. The other rights are set out in Subdivision C — Qualified Rights. The rights are “qualified” because each is liable to be made subject to a law regulating or restricting its exercise to the extent that it is required for the purpose of giving effect to the public interest in a number of matters including public order, an interest which could be relevant to the rights of persons arrested or detained (s. 38). The qualified rights are classified into Rights of All Persons, and Special Rights of Citizens. The provision the subject of this reference is set out in s. 42, Liberty of the Person, as one of the Rights of All Persons.

In the case of the Rights of All Persons, again the passive voice is used, in ss. 42, 43, 44, but the other sections are in the form, e.g. “Every person has the right to freedom of conscience ...”, s. 45. The form of these sections bears upon the applicability of s. 23 — Sanctions, because generally in the rights and freedoms set out in Subdivisions B and C there is no provision expressly imposing on any person a duty correlative to the right.

Provision for the enforcement of the rights and freedoms conferred in Div. 3 is set out in Subdivision D — Enforcement, which contains ss. 57 and 58. Such a right or freedom is to be protected by and is enforceable in the Supreme Court and the National Court, and that protection is to be afforded either on the initiative of the Court, or on application by any person who has an interest in its protection and enforcement, or if unable to exercise his rights, by a person acting on his behalf (s. 57). For the purposes of the section the Law Officers of Papua New Guinea and other defined persons have an interest in the protection and enforcement of the rights, but the subsection does not limit the persons or classes of persons who have such an interest (subs. (2)). Plainly a person who claims that his right is infringed is a person who has an interest in its protection and enforcement. If there were any doubt about this, it is dispelled by the Report of the Constitutional Planning Committee, which may be used, so far as it is relevant as an aid to interpretation of the Constitution (s. 24(1)). Reference to that Report shows that the Committee based its recommendations on the pre-Independence Human Rights Act 1971, including the provision for enforcement of the fundamental rights and freedoms specified in the Act. In the Report it is expressly stated that the effect of the Act was to enable the Court to act on the complaint of a person who claims his rights or freedoms have been denied — Report 5/1/4, par. 22, and that must be taken as the meaning to be given the recommendation for enforcement, which was basically adopted in the Constitution, s. 57(1), (2) and (3). (Report 5/1/33).

A Court that has jurisdiction under s. 57 is given the plenary power to make all such orders and declarations as are necessary and appropriate for the purposes of the section (subs. (3)), and further ancillary powers are added in subsections (4) and (5). That power must include the making of an order or declaration that a statement made by an accused person following non-compliance with s. 42(2) be excluded from evidence, which is the most effective form of relief for any accused person. The jurisdiction and powers of the Courts under s. 57, it is expressly provided, are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution subs. (6)), which include of course the jurisdiction to award compensation under s. 58. As that section is also expressed to be in addition to and not in derogation of s. 57, (s. 58(1)), the result presumably is that each section is to be given an independent operation. Whilst the requirement that the right or freedom shall be protected by the Court in s. 57(1) would by its mandatory terms seem to be paramount, under s. 58 there is an additional and independent entitlement, conferred upon a person whose rights or freedoms declared or protected by Div. 3 are infringed, to reasonable damages, and if the Court thinks proper exemplary damages (s. 58(2)).

However, in the case of non-compliance with the Constitution, s. 42(2), it may be thought inadequate for a Court to admit the accused’s statement, and simply allow action to be taken under any other provision. In the ordinary case of a breach of s. 42(2), particularly of sub-paragraphs (b) and (c), the Court may well feel bound to adopt the analogy of relief by way of restitutio in integrum, or restoration of the accused to the position as if s. 42(2) had been complied with, taking into account the real possibility that the accused would have exercised his right to silence, and thus to exclude the admission under s. 57. There is no reason why such an order should not be made in the course of a criminal proceeding before the National Court.

It is to be noted that the general omission, in the statement of the various rights and freedoms, of any definition of the persons under a correlative duty, is remedied under Subdivision D, for it is expressly provided that relief may be granted in cases of infringement under s. 57, and damages may be awarded against any person who committed, or was responsible for, the infringement under s. 58(3).

It is appropriate now to consider the legal relationships which arise under the Constitution, s. 42(2). (The position is the same in the case of any of the fundamental or qualified rights). At the hearing there was no discussion of the jurisprudential implications of s. 42(2), but it was agreed by all counsel that the provision gave rise to a legal duty upon a person who arrests or detains another, to comply with s. 42(2). When read together with Subdivision D — Enforcement, in my opinion it is sufficient to note that a bundle of legally enforceable rights and duties does emerge. See Salmond on Jurisprudence, 12th ed., ss. 39 and 40. The right is vested in a determinate class of persons, that is persons arrested or detained, and is enforceable by the legal processes instituted under s. 57 for a protective order in the case of actual, imminent or reasonably probable infringement, and additionally under s. 58 for compensation to be awarded as against the person who committed, or is responsible for, any infringement. The duty is owed by the person who arrests or detains, and is enforceable against him, in the case of infringement, under each provision. Of course the wide jurisdiction to make protective orders is not confined to orders as against the person who commits the infringement.

From this analysis of the Constitutional provision and having regard to the provisions for enforcement to be found in Subdivision D — Enforcement, in my opinion an issue emerges as to whether s. 23 has any application in respect of the enforcement of the rights and freedoms, including s. 42(2). See Pearce, Statutory Interpretation, p. 36. But as the issue was not argued, and, in my opinion the reference can be answered without deciding it, that issue should be left for later decision.

I shall now turn to the submissions of counsel as to the effect of s. 42(2). It is in the following terms:

N2>“42(2) A person who is arrested or detained:

(a)      shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)      shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)      shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection.”

There are some general observations which can be made at this stage. First, I agree with the submission of the Public Prosecutor that the section confers rights only on persons arrested or detained. It does not deal with the situation in which a person not under restraint volunteers a statement to a police officer. Secondly, arrest and detention both have as a common element the deprivation of liberty. The extension of the rights to persons detained would appear to meet the possibility of an “arrest” being confined by a narrow interpretation to a lawful arrest. If arrest means any purported arrest, lawful or unlawful, detention would seem to involve wrongful imprisonment. But I do not consider that the Court is called upon in this reference to determine the meaning of “arrest” or “detains”.

Thirdly, in the application of subs. 2(a), no doubt account may be taken of circumstances, such as the lack of a common language, which are referred to in the Arrest Act 1977. Fourthly, I agree with Mr. Kapi’s submission that the purpose of s. 42(2) is to dispel the police-dominated atmosphere that must accompany the interrogation of a person under arrest or detention, and also to provide safeguards to ensure that the accused person appreciates and is accorded his right to silence.

The submissions by the Acting Public Solicitor were, first, that the Constitution, s. 42(2), impliedly forbids the use of material obtained in breach of its terms, and a person has the Constitutional right to have any statement rendered inadmissible if it is improperly obtained following non-compliance with Constitution, s. 42(2).

The authority relied on is The Queen v. Ireland[ccclxxiii]², a decision of the High Court of Australia. That was a case of application for leave to appeal against a verdict of murder. At the trial the following evidence (amongst other matters), which was objected to by counsel for the accused, was admitted:

N2>(a)      photographs taken at the insistence of the police, without authority, of some scratches on the hand of the accused; and

N2>(b)      an account of a medical examination of the accused’s hands conducted in breach of the provisions of the South Australian Police Offences Act, s. 81(2).

Although for reasons not material to this reference the application was refused, in a judgment in which the other members of the Court concurred, Barwick C.J. made some observations on the admissibility of evidence illegally obtained and in particular of evidence of photographs and a medical examination made unlawfully.

This is the passage of the judgment upon which the Acting Public Solicitor relies:

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.” (Per Barwick C.J. at pp. 334-335).

The Chief Justice considered the statute and took the view that it hedges the power of the police to submit suspects to medical examinations with specific conditions which, in his opinion, were obviously enacted for the protection of the accused. This would seem to provide a sound ground for holding, within the law as laid down by the Chief Justice, that s. 81 on its proper construction impliedly forbade the use of medical testimony based on a medical examination procured in breach of its terms. But although the Court held that the photographs and medical testimony ought to have been excluded, that decision was made not because the statute required it but in the proper exercise of the Court’s discretion.

I consider that upon this point the answer is to be found in the Acting Principal Legal Adviser’s submission that where a general obligation is created by statute and a specific remedy is provided, that statutory remedy is the only remedy. Clegg, Parkinson & Co. v. Earby Gas Company[ccclxxiv]³, per Wright J. at p. 595. Of course that submission, and also a similar submission by the Public Prosecutor, were based upon the applicability also of the Constitution, s. 23, a submission I find unnecessary to determine. But if Subdivision D is alone applicable, there is express provision for enforcement which in my opinion leaves no room for the implication of the right contended for. If on a trial the admissibility is raised of an admission obtained in breach of s. 42(2), the Court, upon its own initiatime or on the application of the accused, has the power in the usual way or under s. 57(3) to determine the question whether a protective order is required to be made under s. 57, that the admission be excluded. Upon the facts of such a case, as I have said, the judge may very well feel bound, as the only way to protect the accused’s right, to reject any admissions obtained in consequence of the breach.

Accordingly, in my opinion this submission fails.

In his second submission the Acting Public Solicitor relies on the Court’s discretion, as expounded by Barwick C.J. in The Queen v. Ireland[ccclxxv]⁴, to exclude evidence unlawfully or unfairly obtained. Reliance is also placed on R. v. Stafford[ccclxxvi]⁵, a decision of the Full Court of South Australia, in which it was held that where the police had made an unlawful arrest, they were not entitled to employ the occasion for the purpose of interrogating an accused person, and that in the exercise of the Court’s discretion the admissions made should have been excluded. But see R. v. Banner[ccclxxvii]⁶. I consider that, whilst that discretion remains, the mandatory terms of s. 57(1) go further than merely to confer a discretion upon the judge to reject such evidence. This submission appears to have been made in the alternative if the question were answered No, rather than as supporting a constitutional implication of rejection of evidence.

In his third submission the Acting Public Solicitor relies upon s. 37 which provides, as one of the fundamental rights, that “no person shall be compelled in the trial of an offence to be a witness against himself”. It was submitted that the provision is very similar to the Fifth Amendment of the Constitution of the United States of America which is to the effect: “No person shall ... be compelled in any criminal case to be a witness against himself”. That provision has been construed by the United States Supreme Court as according to each individual the privilege, at any stage before trial or at the trial, not to be compelled to incriminate himself. (Miranda v. Arizona [ccclxxviii]⁷). The principle is also deep-rooted in the common law, and provides one of the reasons for the rejection of a confession on the ground that it is involuntary. Commissioners of Customs and Excise v. Harz & Another [ccclxxix]⁸, per Lord Reid at 820, McDermott v. The King[ccclxxx]⁹ per Dixon J. (as he then was) at p. 513. In the United States the law has been developed further, and the prosecution may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation of the accused, unless it demonstrates the use of certain procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona [ccclxxxi]¹⁰. The measures go beyond the requirements of the Constitution and the common law in at least one respect, in that the unconditional right to the presence of an attorney is accorded.

It was also submitted that the Constitution s. 37(10) imports the United States’ Constitutional right under the Fifth Amendment of “due process of law” which involves not only observance of proper Court procedure but also compliance with proper conduct on the part of those who enforce the law. This line of reasoning, I assume, provides ground for the submission that breach of Constitution s. 42(2) constitutes improper conduct on the part of the persons making the arrest or effecting the retention, and therefore lack of due process, leading to the rejection of any subsequent admission under Constitution s. 37(10).

Now I was impressed with the inference made in the judgment of Mwendwa C.J. in Republic v. El Mann[ccclxxxii]¹¹ (a case under a similar provision in the Kenya Constitution), that the words “against himself” in the present context suggest the principle generally against self-incrimination. But reading Constitution s. 37(10) as a whole I consider that the words “in the trial of an offence”, which are of technical significance under the Criminal Code, do limit the right to an immunity from being called as a witness on the floor of the Court. Taking into account the objects of the protection to be afforded, no reason emerges for the right being given any wider operation than the plain meaning of s. 37(10) requires. This approach is in keeping with the aim of the Constitutional Planning Committee which was to entrench in the Constitution only basic rights, with full account being taken for extension in the future. The Constitution which the Committee proposed was one soundly based on the independence of the judiciary, the Rule of Law ( Constitution s. 57(2)(c)), and the principles of natural justice. Thus, for example, the Committee was content to recommend, in the context of the right to life, immunity from wilful murder only, and to allow the necessary wider protection to be ensured under the Criminal Code (Report 5/1/9, par. 38).

Further, I am quite clear on this, that having regard to the homegrown nature of the Constitution, no intention is shown that the notion of due process, developed in detail to meet United States conditions, should be introduced into the Papua New Guinea Constitution. It is true that the Committee refers to the “due process” as provided in the United States Constitution, and states that s. 37 — Protection of the Law — is “the equivalent” of that provision. Report 5/1/10, par. 48. This indicates to me that s. 37 deals with similar subject matter but not necessarily in the same terms. Reading the Constitution as a whole, s. 37(10) cannot be taken so far as to constitute an indirect method of enforcement of s. 42(2), for which specific provision as to enforcement is made at least in Division 3.

For all these reasons in my opinion the question should be answered, No. I consider that upon this reference it would not be proper for the Court to lay down general indications as to the exercise of the jurisdiction and powers of the Court under Constitution ss. 57 and 58. However, I would add the following to the answer:

But the National Court under Constitution s. 57(1), in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of the Constitution s. 42(2) should be excluded from evidence in the trial.

PRENTICE DCJ: This is the first reference brought under its s. 19 by which an interpretation of a provision of the Constitution is sought. It could be considered one of the most important from the point of view of human rights and administration of the law, that may be made.

The pre-Independence House of Assembly having declared itself a Constituent Assembly, exhaustively discussed the Constitutional proposals sent to it from the Constitutional Planning Committee. It thereupon adopted on behalf of the people of the proposed new State of Papua New Guinea this Constitution of 275 sections and 5 schedules, and certain Provisional Organic Laws.

The task of commencing the interpretation of the striking document that now forms the Constitution of the Independent State of Papua New Guinea and purports to express in noble sentiments the ambitions devised and entertained by the indigenous people for their own future government and well being, comes now somewhat invidiously to be performed by the Supreme Court comprised still, as it was initially, by expatriate judges. One can only shoulder the responsibility with all due humility, conscious that the Constitution makers deliberately thrust it upon this Court exclusively, knowing (as was provided by s. 271 the Constitution) that its members would for some time be expatriates.

One reminds oneself that the Constitution neither relies upon nor springs from any source but the will of the people of Papua New Guinea, and that every effort should be made to avoid the intrusion into its interpretation of extraneous ideas or vestigial paternalism from the preceding colonial period. The Constitution itself provides many clear finger-posts to assist its interpreters. Among these are its requirements that:

N2>(a)      all its provisions are to be given their fair and liberal meaning (Schedule 1.5(1), (2));

N2>(b)      all laws are to be interpreted so as to give effect to, or not derogate from, the National Goals and Directive Principles — where possible (s. 25);

N2>(c)      all persons are entitled to certain defined basic rights and freedoms and the full protection of the Law (National Goals and Directive Principles “Basic Rights (a)”; s. 37);

N2>(d)      the debates on the Constitution and the reports of the Constitutional Planning Committee may be used in aid where relevant;

N2>(e)      in interpreting the law the Courts shall give paramount consideration to the dispensation of justice (s. 158(2)) — a provision to be considered in association with those relating to development of an underlying law (s. 20; Sch. 2.3, 2.4, 2.5) and to the principles of natural justice (s. 59(1)).

And, with what might be thought specific relevance to the question asked in this reference, there are the provisions of ss. 22 and 23 which it is convenient to set out here:

N2>“22.    Enforcement of the Constitution

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.”

N2>“23.    Sanctions

(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)      Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)      Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).” (Emphasis mine).

SUBMISSIONS IN SUPPORT OF THE AFFIRMATIVE CASE

It is first put that s. 42(2) read in conjunction with the interpretative injunctions set out in (a) to (e) above, impliedly forbids the use of confessional material obtained in breach of its provisions. That a Statute may have such an effect has been recognized in countries that do not have constitutional safeguards such as those we are considering. The Queen v. Ireland[ccclxxxiii]¹² is an example issuing from Australia. One would sympathize with Mr. Kapi’s submission that a constitution might well be regarded as exercising a stronger pull in this regard than a mere Statute. One pauses on the threshold of the submission, however, to ask why should the implication, if there be one, stop at forbidding the use of confessional material obtained in breach. Should there be an implication against reception of any evidence discovered subsequent to the breach of s. 42(2) (e.g. that relating to a body’s or a weapon’s concealment — following upon information obtained from confessional material of the kind)? Should there be an implication that no sanctions whatever be pursued against a man whose constitutional rights had been so invaded (cf. the “poisonous fruits” doctrine in the U.S.A. cases such as Silverthorne Lumber Co. v. United States[ccclxxxiv]¹³).

In support of this submission the opinion of the Australian Law Reform Commission on Criminal Investigation as to the ineffectiveness of the voluntariness and discretion rules of evidence in restraining police irregularities, has been urged.

It is next submitted that if such an implication not be found, then the Supreme Court in fulfilment of its duty to formulate a rule of underlying law (having regard to the National Goals and Directive Principles) where none such is available to back up the right guaranteed by s. 42(2), should rule that confessional evidence obtained in breach of s. 42(2) be inadmissible; for the reason that without a rule in these precise terms, the rights guaranteed by s. 42(2) would be “left without effect” (s. 22).

Finally, it is urged that the provision of s. 37(10) that “No person shall be compelled in the trial of an offence to be a witness against himself”; requires as a corollary the reading of s. 42(2) in such a fashion as to render confessional evidence received in breach of its terms, inadmissible against the person concerned. Analogy is sought in the history of the interpretation of the Constitution of the United States of America and in particular of its Fifth Amendment which states:

“No person should ... be compelled in any criminal case to be a witness against himself.”

DOES S. 42(2) REQUIRE AN IMPLICATION THAT EVIDENCE OBTAINED IN BREACH OF RIGHTS BE REJECTED?

A study of s. 42(2) does not raise to my mind any ambiguity of meaning which would admit the use of some of the accepted rules of interpretation which could produce the result sought in the affirmative case. And I understood this to be conceded by Mr. Kapi. The Constitution is silent on the subject. But I think it is correct to say that the section recognizes that a person arrested or detained can thereby be disadvantaged to the extent of his will potentially being overborne by an examiner. Does the recognition of this possibility require or warrant in effect, the interposition in the section by this Court, of the provision “and any evidence obtained in breach of the abovementioned rights shall be excluded”? On the one hand it is said that without such an implication the guaranteed rights may be regarded as ineffectual. On the other it is said that such a right once breached cannot be restored in a particular case. Its breach can be met perhaps by compensation or sanction (which is stated in the case of imprisonment to accord closely with custom (par. 42 at 5/1/9 C.P.C. Report)) — but the sanction would operate only to prevent further future possible breaches. Any sanction brought into operation in one case has effective operation only in regard to the future and other cases.

The Constitution makers have spelt out the rights of individuals in great detail in ss. 32-56. And they made special provisions as to enforcement and sanctions in support of them is ss. 22, 57 and 58 (and it was assumed in this case, in s. 23). It would obviously have been open to them to have inserted words similar to those now sought by implication. They had before them a precedent in the shape of the pre-Independence Human Rights Act 1971, which they could have amplified in any detail required. As they say in their final report on this subject (1/4 par. 20):

“Our recommendations include a new Charter of Human Rights. This revises and extends the present Ordinance which it is intended to replace. We have tried to achieve, both in this Chapter and throughout our proposals a careful balance between the rights of individuals and the interests of the community” (emphasis mine).

It is clear the C.P.C. gave earnest thought to the legal enforceability of the guaranteed rights (par. 23 at 5/1/4); and when it came to allowing for exceptional laws that might infringe on rights it recognized that “flexibility is essential in relation to many of the rights and freedoms protected, since much depends on particular circumstances, and in a new nation such as Papua New Guinea we believe it essential to make adequate provision to enable the legislature and the executive to take appropriate action in situations which it is difficult to foresee at present.” (Par. 27 at 5/1/6). Nevertheless it was purporting to state the rights and procedures in detailed form (pars. 32 and 35 at 5/1/7).

It would have been open to them to have added to s. 37(4) for instance, the words “shall not be convicted on confessional evidence obtained in breach of Constitutional rights”.

I accept the submission of Mr. Kidu that s. 42(2) is not ambiguous, imprecise or incomplete; though one must I consider, have regard to all the authorities he cited (Craie’s on Statutes 7th ed. p. 109; Tinkham v. Perry[ccclxxxv]¹⁴; Gahan (Inspector of Taxes) v. Chloride Batteries Ltd.[ccclxxxvi]¹⁵; Warburton v. Loveland, Ivie and Others[ccclxxxvii]¹⁶; Hare v. Gocher[ccclxxxviii]¹⁷; Richardson v. Austin[ccclxxxix]¹⁸ only as subordinate to interpretative directions laid down in the Constitution itself.

I can find no warrant in s. 42(2) itself or its setting necessarily implying the provision contended for. To make such an implication would, I think, amount to legislation in favour of an extended substantial right not specified by the Constitution makers — the legislative power of the people in this sense is of course vested in the House of Parliament, not in the Courts (s. 100(1)). It would indeed be difficult to see why such an “extension” should be made to s. 42(2), and not to, say, ss. 44, 49, 53.

IS THERE A “GAP” WHICH MUST BE SUPPLIED?

Unless a rule be devised rejecting confessional evidence obtained after breach of s. 42(2) Constitutional Rights, then those rights are ineffectual it is said, and s. 22 requires such a formulation to be made. The section reading:

“The provisions of this Constitution that recognize rights of individuals ... as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine”,

is directly in point. A preliminary difficulty to the interpretation of the section is perhaps raised by the comma after the word “supporting”. The word “machinery” has until recent times been regarded as a noun rather than an adjective. Should the phrase be read “supporting machinery and (or) procedural laws”; or should the word “laws” be qualified into three categories of “supporting”, “machinery” and “procedural” laws? Whichever interpretation be the correct one, and I think the comma must be given some effect; it is hard to see how recourse to s. 22 may be had, if what is really a substantial right of a significant character — that of not being convicted on the admission of confessional evidence obtained in breach of rights — has not been established in the first place by either s. 37(4) or s. 42(2). A further difficulty about regarding s. 22 as operative in this case, is that its injunction is directed at the “National” rather than “Supreme” Court. Without intending to be definitive, this to my mind is indicative of the devising of court procedures such as injunctions (anticipatory, prohibitory and mandatory), declarations, orders, and the methods of enforcing the sanctions. It would not I think lend itself to be interpreted as a direction to the Supreme Court to, in effect by way of interpretation, extend the list of Constitutional Rights.

An even more striking reason against the affirmative case however, lies in the fact that the Constitution itself has contemplated methods by which Constitutional Rights shall be furthered, and introduced them specifically in s. 23, in the shape of sanctions against those upon whom are imposed the co-relative duties to ensure grant of rights. The grant by s. 42(2) of rights does, I think, clearly impose upon those holding persons in arrest or detention, duties which may be thought to expose them to s. 23 sanctions. The section grants the National Court powers for (a) the imposition of sentences of imprisonment up to 10 years, (b) fines of up to K10,000, (c) payment of compensation (in the absence of any other equally effective remedy under the laws) by the defaulter, (d) anticipatory orders to prevent or remedy, and (e) such further order in the circumstances as it thinks fit. And by s. 57, it is enacted that the Law Officers and such others as are prescribed by Act of Parliament and any others with an interest, may move the courts in protection and enforcement of rights. And again, by s. 58 compensation for breach of rights may be awarded. It can hardly be said that these provisions leave the Constitution without teeth. And I think it clear that the exercise of a discretion to reject evidence in appropriate circumstances, would plainly be encompassed by the power which I have designated (e). One must not lose sight of the requirement that the sanctions as to enforcement of duties are available only when a Constitutional Law or Act of Parliament does not provide for enforcement otherwise (s. 23(1)).

It is conceivable that an argument could be erected to the effect that ss. 57 and 58 make provision for “enforcement otherwise”, as envisaged by s. 23; and that s. 23 is not therefore applicable to the protection of rights. Another view (in relation to which s. 57(6) is relevant) would have it that both s. 23 and ss. 57, 58 are so available. The latter view would see ss. 57, 58 as providing for the protection of rights directly; and s. 23 as providing for such protection indirectly by the enforcement (by sanctions) of co-relative duties to provide such rights — making two sides of the one coin. In this reference, as I mentioned above, all counsel seemed to assume the latter view. The question therefore of whether the method of enforcement of rights ought to be regarded as provided for exclusively by ss. 22, 57 and 58; or whether s. 23 should also be taken to be available to protect them indirectly through enforcement of duties impliedly laid on citizens and authorities by the provision for and definition of rights, was not argued — and may be left for the future.

The s. 42(2) rights being shielded so significantly by the grant of specific and strong powers (those under s. 23 if available, being exercised by the National Court at its discretion only), I find myself unable to reach the conclusion that the interpretation called for in the affirmative case, must or ought to be reached because of the existence of some “gap” or “lack” in the Constitution or background law.

Lastly, Mr. Kapi asks this Court to consider the way in which the Supreme Court of the United States of America developed a doctrine and laid down ultimately the “Miranda Rules”; and by analogy, to suit the circumstances of Papua New Guinea by making a ruling in the affirmative. Such a policy, it is submitted, may be built upon the requirement of s. 37(10) that “No person shall be compelled in the trial of an offence to be a witness against himself”.

Under our current code, a “trial” does not commence until a person is called upon to plead following arraignment (s. 569). The position in Papua New Guinea would therefore appear to be more akin to that existing in Kenya; s. 21(7) of the Constitution of which country provides that “No person who is tried for a criminal offence should be compelled to give evidence at his trial”. In considering the United States’ cases, the High Court of Kenya came to the conclusion that s. 21(7) had no reference to pre-trial procedures in that no ambiguity existed such as would allow it to be interpreted in the analogous U.S. sense (Republic v. El Mann[cccxc]¹⁹ ). The first ten amendments to the United States Constitution having been proposed in 1789, were adopted in 1791. By the Miranda decision, 175 years later, rules were devised apparently in furtherance of a constitutional interpretation of the phrase in the Fifth Amendment “... in any criminal case to be a witness against himself”, and of the “due process” provision of the Fourteenth Amendment; to deal with the great abuses which it was thought had developed in investigatory processes, including forms of invasion of privacy, duress and torture. It was there thought apparently, that in the absence of sanctions in the Constitution itself, it was necessary in the attempt to achieve justice for the Court itself to devise sanctions in the form of severe restrictions on the admissibility of evidence. The situation in the United States of America in the early decades of this century provided a very different background to that obtaining in Papua New Guinea, at present — particularly when one contrasts the specific sanction provisions of our Constitution with the total lack of sanctions against those breaching civic rights in that of the United States of America.

I am unable to come to the conclusion that, in any case, the words of s. 37(10) of our Constitution, referring as they do to the trial, not to the pre-trial period, are relevant to a consideration of whether evidence may be given of alleged admissions made by a person in arrest or detention.

For the above reasons, I would answer the question “No”.

Before parting from the subject I would wish to add a few observations. In a recent paper delivered to the Hobart Judicial Conference in Australia (1977), after discussing possible legislative alterations to the law of evidence, Professor J. D. Heydon stated:

“The Escobedo-Miranda doctrine may be thought unsuitable in Australia. It leads to the exclusion of confessions made by the accused virtually spontaneously the moment the police meet him as well as those produced by hours of questioning Orozco v. Texas [1969] USSC 62; 394 U.S. 324 (1969)”.

To those who have been practising many years in the Courts here, the situation in which a man or woman having committed a grave crime of violence, immediately runs to the nearest police station, makes an initial confession, and demands to be locked up for protection against instant pay-back killing —  is most common, and part of the customary fabric of society. In circumstances of this kind as well as others, breaches of constitutional rights by police or administration officers may occur which may vary from a comparatively trivial one on the instant facts, to a grave infringement. To arrive at the conclusion that the Constitution requires any such breach to render inadmissible any confession subsequently obtained would it seems, be to make a decision unalterable except by Constitutional amendment. On the other hand such a law, as would produce that result (if it were desired) could be introduced as an amendment to the law of evidence.

I feel that in the present circumstances Constitutional Rights can be safeguarded by the courageous and firm exercise in appropriate circumstances, of the provisions of ss. 22, 57, 58 and possibly of s. 23. I have no doubt the National Court judges will exercise them. But the Constitution is ambulatory, in the sense that it will continue to exist to cover the conditions of society that develop through the decades. If situations develop in this country as they did apparently in the United States of America such as to militate against the enjoyment of Constitutional Rights, and the sanctions that already exist in s. 23 prove inadequate to the times, I would not take the decision of this Court now along the lines I suggest, to preclude the possibility that our successors in this Court might well feel free then to discover a “gap” or “lack” which required the devising of further supporting, machinery or procedural laws under s. 22.

For the present I feel confident that the use of the sanctions already provided and in particular by the adding of “breach of Constitutional Rights” to the category of factors which allow “discretionary rejection”, as set out in the much quoted Australian cases of The King v. Lee and Others[cccxci]²⁰ and McDermott v. The King[cccxcii]²¹, will prove adequate to ensure the enjoyment by the residents of this country of the rights so eloquently and firmly established for them by the striking document of 15th September, 1975 — the Constitution of the Independent State of Papua New Guinea.

WILLIAMS J: The issues which arise on this reference and the arguments put forward at the hearing are set out in the judgments of the Chief Justice and the Deputy Chief Justice, which I have had the advantage of reading in draft form, and there is no need for me to repeat them.

Division 3 of Pt. III of the Constitution contains a number of provisions dealing with what may compendiously be termed the basic rights, freedoms and liberties of the people of Papua New Guinea. Included in this Division is s. 42, subs. (2) of which is central to the considerations raised by this reference. That subsection requires that a person arrested shall be informed promptly of the reasons for his arrest or detention and of any charge against him, that he be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend and with a lawyer of his choice (including the Public Solicitor); that he shall be given adequate opportunity to give instructions to a lawyer; and that he shall be informed immediately on his arrest of these rights. Although there is no specific provision concerning the identity of the person who is required to inform a person arrested or detained of his rights, I think the necessary implication is that that duty falls on the person effecting an arrest or detention.

Further, the subsection does not make any provision relating to the consequences flowing from a failure to comply with it. There are, however, other provisions of the Constitution relevant to this question. I refer specifically to ss. 23 and 57.

The Chief Justice in his judgment appears to entertain some doubt as to whether the provisions of s. 23 are available following a breach of duty impliedly imposed by s. 42(2). This was not raised in argument on the hearing of the reference; indeed the arguments assumed that the sanctions imposed by the section would be available. In the absence of any argument to the contrary I am disposed to assume that the section does have application. In any event, I think that the question raised in the reference may be disposed of having regard to the provisions of s. 57 alone.

Sections 23 and 57 appear, at least to some extent, to overlap. But it emerges plainly from them that both the Supreme and National Courts are given wide discretionary powers to deal with a situation in which a right guaranteed under the provisions of Div. 3 of Pt. III of the Constitution has been denied. Amongst other things, compensation may be ordered to be paid to a person adversely affected, a traditional way in Papua New Guinea of redressing wrongs.

It is said in the argument advanced in favour of the affirmative case that the provisions of s. 22 are relevant to this case in that the sanctions imposed by s. 42(2) would be left without effect unless this Court were to answer the question raised in the affirmative. In effect the Court is asked to fill a gap which, it is said, exists.

However, I can see no room for the application of s. 22 of the Constitution. I do not think that it can be said that the rights conferred and the duties impliedly imposed by s. 42(2) are left without effect, within the meaning of that term in s. 22, for the simple reason that sanctions and remedies are provided for in s. 23 and s. 57. Whether or not these go as far as those propounding the affirmative case would like, seems to me to be beside the point. Section 22 appears to me to be concerned with a case in which the right conferred or the duty imposed may be completely hollow without some means to back it up. The kind of case presently under consideration does not fall within that category.

An affirmative answer to the question raised by this reference would, it seems to me, have the effect of adding to the sanctions already provided in the Constitution. The further sanction sought would be a mandatory one applying in all cases irrespective of the circumstances surrounding a particular case. This seems to me to be quite contrary to the intention of the framers of the Constitution. Reference to the Final Report of the Constitutional Planning Committee (in particular pages 5/1/18 and 5/1/19) shows that a careful and deliberate decision was made to leave the enforcement of the human rights provisions to the discretion of the Courts. As was said by Mr. Kidu in argument before the Court, an affirmative answer to the question raised would amount to a legislative act on the part of the Court, the effect of which would be to add a further sanction which the Parliament, as the law making body, did not itself see fit to make and one which, as I have said, would be contrary to the intention of the framers of the Constitution.

It was also submitted in support of the affirmative case that an implication arose forbidding the use of confessional material obtained following a breach of s. 42(2). In support of this submission reliance was placed upon a passage from the judgment of Barwick C.J. in The Queen v. Ireland[cccxciii]²². There it was said that a statute may, on its proper construction, impliedly forbid the use of facts or things obtained or procured in breach of its terms. I see no basis for an implication of that kind in the present case. As I have said earlier, the Constitution itself provides sanctions and remedies with respect to breaches of rights conferred by it and it was not seen fit to include the further sanction now contended for in the affirmative case.

It was sought to derive further support for the affirmative case from the provisions of s. 37(10) of the Constitution which simply provides that no person shall, in the trial of an offence, be a witness against himself. To my mind this provision is perfectly clear. In its literal terms it provides that a person cannot be called to give evidence at his trial as a witness against himself. In my view s. 37(10) has no relevance to the questions presently under consideration. It is, I think, directed to situations such as those which may arise under provisions like s. 251 of the Customs Act 1951 which provided that in every custom prosecution (except for an indictable offence or one directly punishable by imprisonment) the defendant shall be compellable to give evidence.

To sum the matter up it is my opinion that upon the proper construction of all the relevant provisions of the Constitution confessional statements obtained following a breach of s. 42(2) are not automatically excluded from being given in evidence at the trial of the person concerned. The Constitution has conferred upon the Courts a discretion to deal with this situation as in the case of any breach of fundamental rights conferred by the Constitution. The exercise of a judicial discretion necessarily involves a consideration of the facts surrounding a particular case. If in a particular case it appears that there has been a breach of s. 42(2) then this is a matter for the trial judge to take into account together with all the circumstances of the case when exercising his discretion whether or not to admit evidence obtained following the breach.

For the foregoing reasons I would answer the question raised in the reference in the negative.

KEARNEY J: I have had the advantage of reading the judgment of the Chief Justice, with the whole of which I respectfully agree.

I agree also, with respect, with the observations of the Deputy Chief Justice on the ambulatory nature of the Constitution, and the consequences thereof.

I would answer the question in the manner proposed by the Chief Justice.

PRITCHARD J: This question is referred to this Court pursuant to s. 19 of the Constitution raising a question of the interpretation and/or application of a provision of the Constitution itself.

I have had the opportunity of reading in draft the judgment of the Deputy Chief Justice and subsequently the draft judgment of the Chief Justice. As they both have set out in detail the arguments in support of and in opposition to the question raised, I will not attempt to repeat these nor set out the provisions of the Constitution, extracts from the Report of the Constitutional Planning Committee and relevant decisions to which they have referred. I agree with the conclusion they have reached on the Reference.

I had been in the process of completing a draft judgment reaching the same conclusion but dealing with the matter in a different way to that of the judgments of the Chief Justice and Deputy Chief Justice. By this I mean I was intending to suggest guidelines of procedure by which the penal sanctions of s. 23 of the Constitution should be implemented.

However, as has been pointed out, an issue may well arise as to whether s. 23 applies at all to an infringement of the Basic Rights provisions of the Constitution, although at the hearing of this Reference, all concerned appeared to assume that it did. The problem therefore must be left for later decision. My researches at least prompt me to make two observations. Firstly, there is not only the individual’s entitlement to his Constitutional freedoms to protect, there is a matter of public interest equally involved. Secondly, s. 23, whatever its scope, contains such heavy maximum penalties that I believe the precise extent of its application should be a matter for legislative action rather than for a judge of this Court to attempt its definition.

I answer the question in the Reference “No”.

ORDER OF THE COURT:

WHEREAS Section 42(2) of the Constitution provides as follows:

N2>“(2)    A person who is arrested or detained:

(a)      shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)      shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)      shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection.”

AND WHEREAS questions on the effect of noncompliance with the provisions of s. 42(2) of the Constitution have arisen in the National Court

AND WHEREAS the Acting Public Solicitor of Papua New Guinea has referred to the Supreme Court the following question:

“Does failure to comply with all or any of the provisions of s. 42(2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?”

ORDER that the question be answered as follows:

“No.”

Acting Principal Legal Adviser: B. W. Kidu.

[ccclxxii]Section 42(2) of the Constitution provides as follows:

N2>(2)        A person who is arrested or detained—

(a)        shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)        shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)        shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection.

[ccclxxiii](1970) 126 C.L.R. 321.

[ccclxxiv][1896] 1 Q.B. 592.

[ccclxxv](1970) 126 C.L.R. 321.

[ccclxxvi](1976) 13 S.A.S.R. 392.

[ccclxxvii][1970] V.R. 240.

[ccclxxviii](1966) 384 U.S. 436.

[ccclxxix][1967] 1 A.C. 760.

[ccclxxx](1948) 76 C.L.R. 501.

[ccclxxxi](1966) 384 U.S. 436.

[ccclxxxii] [1969] E.A. 357 at p. 361.

[ccclxxxiii](1970) 126 C.L.R. 321.

[ccclxxxiv](1920) 251 U.S. 385.

[ccclxxxv](1951) 1 T.L.R. 91.

[ccclxxxvi](1955) 1 W.L.R. 277.

[ccclxxxvii](1831-32) 6 E.R. 806.

[ccclxxxviii][1962] 2 Q.B. 641.

[ccclxxxix](1911) 12 C.L.R. 463.

[cccxc] [1969] E.A.L.R. 357 at p. 361.

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

[cccxcii](1948) 76 C.L.R. 501.

[cccxciii][1970] HCA 21; (1970) 126 C.L.R. 321.