Maino, The State v [1977] PNGLR 216 (19 July 1977)

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CRIMINAL LAW - Evidence - Record of interview - Admissibility - Absence of caution - Inadequate provision of constitutional rights - What constitutes “constitutional rights” - Record of interview rejected - Constitution s. 42.

CRIMINAL LAW - Murder - Definition - Death from reflex vagal inhibition - Inaptness of U.K. decisions - Intoxication as defence - Criminal Code s. 305(b)[cc]1.

The accused was charged with the murder of one Patrick, whose death resulted from the accused knocking him down and stamping heavily 6 or 7 times on his neck, which, it was found, disastrously affected his heart mechanism causing death from reflex vagal inhibition. The accused who was seriously affected by liquor at the time of the commission of the offence, purported to have little recollection thereof, and reported to the local police station after being told what he had done by other witnesses. A reliable witness gave evidence that the accused attacked the deceased after a fight between the deceased and a third man in which the deceased knocked a large hole in the wall of the accused’s house.

On the trial the prosecution sought to tender in evidence a record of interview conducted on the day of the alleged offence, to which objection was taken on the grounds inter-alia that no constitutional rights were given the accused and that no caution was administered. On the voire dire, it appeared that in fact no caution was given and the record of interview itself revealed the following exchange:

The Constitution of Papua New Guinea says I must now tell you about your rights. I must first tell you why I am arresting you. I am arresting you because I believe you killed a man by the name of Patrick Yawi. At the moment you have not been charged with any offence. You have the right to send a message or speak to a member of your family or a personal friend, or any lawyer you wish or to the Public Solicitor. If you get a lawyer he may come and see you wherever you are kept and you will be allowed to talk to him about this matter.

The interview then proceeded without the accused taking any steps to contact any person and in a room containing a telephone and telephone directory.

(1) The question of whether constitutional rights have been given to an accused pursuant to s. 42 of the Constitution will depend upon the particular circumstances of each case.

The Constitution envisages that something more practical and useful than a mere statement of rights may be called for to give effect to s. 42(2) of the Constitution in any particular circumstance.

(2) In the circumstances of this case something more than was done was called for, the accused should at the least, have been given the opportunity and facilities to telephone someone.

(3) Accordingly, there was a lack of adequate provision of constitutional rights which coupled with the failure to give the usual caution were sufficient grounds to reject the record of interview, even if it was voluntary in the common law sense and not induced by threat or promise.

(4) Such intoxication as existed being self induced afforded no defence under s. 27 of the Criminal Code.

(5) In the circumstances, the Court could be satisfied beyond reasonable doubt, that the accused embarked on an unlawful purpose, namely seriously to attack the deceased that he did so assault the deceased and the nature, severity and persistence of his assault did cause the death of the deceased, and accordingly the accused was guilty of the offence of murder as defined in s. 305(b) of the Criminal Code.

(6) Intention to cause a specific result not being an element of the offence of murder as defined in s. 305(b) of the Criminal Code, intoxication under par. 3 of s. 28 of the Criminal Code afforded no defence.

Bratty v. Attorney-General for Northern Ireland 1963 [A.C.] 386 disapproved.

This was the trial of an accused on a charge of murder. The Supreme Court on appeal subsequently reduced the conviction to manslaughter. (See Maino v. The State [1977] P.N.G.L.R. 404.)

PRENTICE DCJ: The prosecution has sought to tender in evidence a record of interview conducted between Constable Paia and the accused on 16th January, 1977 at Boroko police station. Objection has been taken to the tender on a variety of stated grounds, and a voire dire examination has been conducted. The court has had the benefit of the evidence of the Constable, Sgt. Nunumata, and the accused on the subject, and I have had access to the accused’s s. 103 statement in the District Court and the record of interview itself.

The grounds of objection are that constitutional rights were not given the accused; no “caution” was administered; a threat was made (s. 86 Evidence Act 1975); and the accused was in such a state of health and fatigue as to render his answers to questions involuntary or such as not fairly to be used against him. There are other grounds which suggest that only some of the questions and answers were recorded, that some were incorrectly recorded, that alterations (presumably without accused’s concurrence) were made and that one particular question (that now conveniently numbered 23) was neither asked of, nor read back to, the accused. I am of the opinion that these other grounds do not go to the question of voluntariness or admissibility, but are of the kind which would be decided by a jury if this were a jury trial (cf. The Queen v. Matheson, Cook and Manuel[cci]²). However, as a matter of practical convenience the evidence relating to these details has also been taken.

On the accused’s own version of events, the interview at the police station occurred as a result of his going himself to the station on the morning of the 1st January to report what he understood to have happened the night before. On the police version it was had some 12 hours later at 9.00 p.m.

I consider the defence has failed to establish to the necessary degree (that is on the probabilities), that any state of illness or exhaustion existed in the accused such as would render it unfair for the record of interview to be used against him and would call for the exercise of the court’s discretion against its admission in evidence (cf. R. v. Sykes and Campi (No. 1)[ccii]³). Other matters raised cause more concern, to my mind.

In the first place, the record itself contains no reference to the giving of any caution or warning that the accused had a right to remain silent and that any admissions made could be used in evidence. Constable Paia himself admits that no such warning was given. The giving of the usual caution is of course elementary to police procedure, is laid down in police instructions, and stipulated for by the various Judges’ Rules of the past in the countries from which our Criminal Code and criminal procedure initially derive. It may be that Constable Paia on this occasion lost sight of the necessity for such a safeguard after he had given what he appears to have regarded as the “Constitutional Rights” statement. One could understand (though not approve) his overlooking the normal caution, if the fact had been as the accused stated — that he, the accused, came to the station of his own volition to report. But Constable Paia, though his recollection is vague and unsatisfactory on the subject, suggests that he himself arrested the accused and proceeded to take a statement.

The record of interview, in translation from the Pisin, reveals the following exchange:

In evidence Constable Paia said that following this answer he proceeded directly to the next recorded question, namely:

“Q. For the purpose of this record of interview I want to know the name of your small village, sub-province and province”;

It would appear that the accused had been so treated as to comply with the requirement that an arrested person be “informed immediately on his arrest of his Rights under this subsection” as required by s. 42(2) of the Constitution — even if he had not then technically been arrested (and see above on this matter). But, the defence submission proceeds, there was a breach of the provisions of s. 42(2) (b) and (c), in that the accused had not “been permitted wherever 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 ...”; and had not been “given adequate opportunity to give instructions to a lawyer of his choice in the place where he was detained”.

Now the Constitution makers’ provisions in regard to rights are detailed and explicit. I desire specifically to prescind from any intention to add to the rights actually given, by any interpretive extension by me, and from any intention to introduce restrictions on the rights and duties of the police in the investigation of crime, beyond those stated in the laws of Papua New Guinea. However, it is I think, clear from the conjunction with (a), (b) and (c) of s. 42(2), of the further provision as to being informed of his rights — that the Constitution envisages that something more practical and useful than a mere statement of rights may be called for to give effect to s. 42(2) in any particular instance. In my view, the Court should not attempt to lay down a detailed guide for procedure which must be followed by the police in each case if they wish to ensure compliance with the Constitution;(though of course the police authorities themselves might as a matter of prudence, endeavour to produce for the members of the force some such assistance). I imagine the treatment necessary on the one hand, to accord constitutional rights to a man who had run miles across mountains, axe-in-hand, to a police post, to admit to a crime with the object of securing his own and his family’s safety following a crime he said he had committed, would differ greatly on the other, from that necessary to ensure rights to a man arrested against his will who at the beginning protests his innocence. These are perhaps the extremes of the spectrum; many differing shades of colour will appear in the instances between. I feel that the question of whether constitutional rights have been given, will necessarily in each case, have to be answered on a consideration of its particular facts.

The accused here describes himself as “Managing Director” of a business at Koki known as “Lakatoi Artefacts”. This may seem perhaps rather a pretentious description of his occupation. But he speaks English, is urbanized, and is carrying on a business in the environment in which he was being questioned. The questioning was taking place in an office in Port Moresby, connected with a telephone. The telephone directory was nearby. It may be that the policeman was, in the circumstances of the degree of sophistication of the accused, and considering that this was the night of a public holiday — satisfied:

(a) that the accused’s answer indicated that he did not wish to avail himself of his rights to communicate or give instructions; and

(b) that nothing further than the giving of information as to rights was therefore practicable or required.

However, I find myself with a feeling that in the circumstances of this case (I emphasize again my intention not to be making a rule of general precedent), something more by way of clarification was called for — that the accused should have at least been asked whether he wished to look at the directory, or to ring anyone in particular, and that facilities to do so should have been provided if he so required.

These two circumstances — the lack of adequate provision of constitutional rights and the failure to caution — convince me that I should exercise my discretion against admitting the record of interview herein into evidence (cf. McDermott’s case[cciii]⁴ and Cornelius’ case[cciv]⁵), even were I convinced that it was voluntary in the common law sense and not induced by threat or promise (cf. The King v. Lee and Others[ccv]⁶). I therefore do not consider it necessary to proceed to any conclusion on the question of the alleged threat. I find myself confirmed in this opinion by the admission of Constable Paia in evidence, that in one respect at least, the record of interview is inaccurate when it stated in question 35 that the accused had told the Constable that the deceased had died at the hospital.

As a result of what appears to have been poor investigation of this incident by the police, and the rejection of a record of interview after an examination on the voire dire, the principal evidence against the accused is to be found in the testimony of Fodi Eva and Dr. G. H. Aiken.

Eva is a young man of some 18 years or less who at the year’s end 1976, was present in a house at Sabama where the incident occurred out of which this trial arises. He himself is, he says, too young to drink, and had not had any alcoholic liquor on the night of 31st December. Unfortunately a number of other men present were not so constrained. It is clear that a large amount of liquor was consumed — on the accused’s statement two cartons of beer and a bottle of bacardi — amongst some 6 or 7 men. Eva says he went to sleep about 9.00 p.m. and was awakened in the early hours of the morning, apparently by the noise of the drinkers singing. He saw the deceased man, Patrick, in argument with a man named Koga, push the latter in such a manner that a portion (over a yard wide) of the house wall fell down. He stated that the accused whose house it was, then fought both Patrick and Koga, and that the last named ran away. The accused hit Patrick who fell down. The accused then “hit” the recumbent Patrick’s neck some “7 or 6 times”. He explained that he meant “kicked” rather than “hit”; and demonstrated a downward stamping with the foot. He was insistent that the stamping was hard. In the interpretation from the Pisin, the court was initially given the phrase “he threw his leg fast”. The foot was of course bare. Blood began pouring from Patrick’s mouth and was on the floor. Eva’s impression was that Patrick was unconscious but breathing. He saw his stomach move. He saw no-one else hit Patrick. The witness ran away to Kila Kila and informed his brother of what he had seen. It was about 4.00 a.m. Later he saw the dead body of Patrick at the hospital. He gave his opinion that the accused was at the time of the assault he witnessed, really drunk (“spak tru”). “They were all really drunk”, he said. To further questions, he related how he heard an argument between Patrick and Koga about a cigarette, saw Patrick punch Koga and push Koga against the wall. He observed that Joseph, the accused, got angry about the wall being broken, and fought Patrick and Koga.

The deceased was this witness’ “father” — the elder brother of his true father. (The accused describes the deceased as his own “grandfather”.) The witness could not be broken down in his account as to the number of times the accused stamped on the deceased’s neck, and the force with which this was done. Fodi Eva was a quiet, careful, thoughtful, most impressive witness who thoroughly convinced me by the manner of his giving evidence and the content thereof, that he had an accurate recollection and was telling the truth as to things he himself saw.

The accused himself in his s. 103 statement, after explaining what was drunk on the night in question, stated that he became drunk; “I was flat out drunk” in his own words. He continued, “After this trouble happened — I don’t know how the trouble happened until the next morning when I got up my wife and kids told me. Lain, one of the boys, told me that `You did this and that’, so I said `Is it true’ and they said `Yes’ “. He then told how these people described an argument between Patrick and Koga over a smoke and the wall being broken. He went on “So they told me that I got up and hit Patrick. I asked them again `Is it true?’ and they said `Yes’ “. Later he said, “I asked them did I actually hit him or not and they told me I only punch him”. He was not allowed to see the dead body. His statement ended “I did not mean to kill my grandfather”.

In this Court the accused gave evidence initially on the voire dire, and again at the close of the state case. His evidence was hesitant, there were many very, very long pauses before answers were given. A considerable number of questions were not answered at all. I found myself very unimpressed by him. His evidence was on each occasion given in the presence of a large number of relatives, and it was obvious to me that he found their presence a constraint and cause of uneasiness to him. He again told of the drinking session and said that he did not know how the trouble started, but “they told me I hit Patrick”. When asked by his own counsel “Is there anything else in your recollection about this matter?”; he replied: “I can only see my leg on Patrick’s neck”. Later in cross examination he stated: “I can remember carrying him” —meaning the deceased. When it was suggested to him that he hit and stamped on the deceased 6 or 7 times on the neck, and that he knew what he was doing, he replied: “I did not know exactly what I was doing”. He agreed that he could have been angry but does not know. He agreed that he was told it was only himself who did this to Patrick. It is clear that the accused has never denied that he attacked the deceased man. And I am satisfied beyond any doubt that the accused hit Patrick knocking him down, and then stamped heavily 6 or 7 times on the neck of the prostrate man causing blood to gush from his mouth.

A submission was presented that whatever it may have been that the accused did to Patrick, it had not been established that these his actions caused Patrick’s death. Dr Graham Aiken, the pathologist at Port Moresby General Hospital (a man of some four years’ experience in Papua New Guinea), conducted a post mortem on Patrick Yawi on 7th January. He found a small amount of blood coming from the body’s mouth and nose — but no other significant injuries. Purely from the observations of the post mortem — there was no obvious cause of death. He was also given an account of how the deceased had been attacked and kicked six times on the body, and he explained how it is well known that death can result from injury to certain parts of the body without leaving visible signs. Death is presumed to result from interference with the function of vital organs. In particular, blows to the neck can cause a heart stoppage by stimulation of certain nerves in the neck. Asked were there any other ways this man could have died if the blows to the neck were set aside — he replied that blows to other areas of the body can also produce death by similar mechanism to that described. He was able to discard the possibility that any toxic substance had been given the deceased, or that his death was due to alcohol alone. In the doctor’s opinion, blows to the neck could kill either immediately or after some minutes of heart beat. It would be very unlikely that a person so injured could live for several hours. The doctor agreed that a man stamping 6 or 7 times on the neck of a recumbent person would be likely thereby to endanger the life of the person assaulted. The doctor had seen two to three similar cases of what he considered death from reflex vagal inhibition (as Taylor’s Medical Jurisprudence calls it. The witness quoted several passages from this work, 11th ed. par. 3 at p. 236). There was no clear evidence of whether the deceased died while in the house at Sabama, on the road to or shortly after reception at the hospital.

It is clear that just before he himself was struck down and thereafter stamped on 6 or 7 times by the accused, the deceased was quite active. He was a man, on the doctor’s evidence, of some 36 years, slightly obese — but I say evidently active, in that he had just knocked another man against and apparently through the wall of the house. It is not suggested that anything was wrong with his health or that anyone other than the accused injured him. I am satisfied beyond reasonable doubt that Patrick Yawi died from the stamping inflicted on him by the accused, which disastrously affected his heart mechanism. The accused is thus responsible in effect for Patrick Yawi’s death. Is he responsible in law?

Undoubtedly the accused must have been appreciably under the influence of liquor. Reliance is sought to be placed on Lord Elwyn-Jones, the Lord Chancellor’s citation, apparently with approval, of a passage from Lord Denning M.R.’s speech in Bratty v. Attorney-General for Northern Ireland[ccvi]⁷ which purports in turn to adumbrate the common law in terms approving Beard’s case[ccvii]⁸ as follows:

“If the drunken man is so drunk that he does not know what he is doing he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, ...” (D.P.P. v. Majewski[ccviii]⁹).

In this case as in so many, it is unwise to seek to rely on cases from non-Code states such as the United Kingdom. Murder under English law has been very different from its definition in s. 305 of our Code. It is enacted in Papua New Guinea that a person is guilty of murder, if he kills another “... by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;” (s. 305(b) Criminal Code). The commission of an assault of the kind here perpetrated clearly involves an unlawful purpose. It did not require a specific intent, any more than the assault under discussion in Majewski’s case[ccix]¹⁰ did. That being so, par. 3 of s. 28 of the Code (which is our equivalent of the Common Law doctrine enunciated in the House of Lords case above cited) does not apply. And as such intoxication as existed, was self-induced, no reliance could of course be placed on s. 27 of the Code. (cf. Regina v. Allan Evi of Bereina[ccx]¹¹, a pre-Independence decision of mine).

I may say I am convinced in any event, that the accused was roused to a pitch of anger by the damage to his house wall; and knew well what he was doing, when he attacked Patrick Yawi; no matter what his recollection of his precise actions may subsequently have been. Knowledge at the time, and subsequent recollection of what happened, are frequently two different things.

I find myself satisfied therefore to the requisite degree (that is beyond reasonable doubt), that the accused embarked on an unlawful purpose, namely seriously to assault Patrick Yawi; that he did so assault Patrick Yawi; and that the nature, severity and persistence of his assault was such as was likely to endanger Patrick Yawi’s life and that his assault did cause Patrick Yawi’s death. Consequently I must convict him of murder.

[cc]Section 305(b) of the Criminal Code provides as follows:

“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say ... (b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, ... is guilty of murder.”

[cci][1969] S.A.S.R. 53

[ccii][1969] V.R. 631.

[cciii] (1948) 76 C.L.R. 501 Dixon, J. at p. 515.

[cciv] (1936) 55 C.L.R. 235 at p. 247.

[ccv][1950] HCA 25; (1950) 82 C.L.R. 133.

[ccvi][1963] A.C. 386.

[ccvii][1920] A.C. 479.

[ccviii][1976] UKHL 2; [1976] 2 All E.R. 142 at p. 150.

[ccix][1976] 2 All E.R. 142.

[ccx][1975] P.N.G.L.R. 30.

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Papua New Guinea Law Reports

Maino, The State v [1977] PNGLR 216 (19 July 1977)

Papua New Guinea Law Reports - 1977