State v Evertius and Kundi [1985] PGLawRp 465; [1985] PNGLR 109 (14 May 1985)

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CRIMINAL LAW - Evidence - Admissibility - Admission by accused - Record of interview properly obtained - Prior statement obtained without proper warnings - Mere failure to warn on prior statement not rendering subsequent record inadmissible.

CRIMINAL LAW - Evidence - Admissibility - Admissions by accused - Evidence obtained following breach of fundamental right or freedom - Discretion to reject - Discretion additional to common law powers based on unfairness - Onus of proof - Constitution, ss 44, 57.

CRIMINAL LAW - Evidence - Admissibility - Onus of proof - Admissions by accused - Evidence obtained following breach of fundamental right or freedom - Onus on accused - Balance of probabilities.

CONSTITUTIONAL LAW - Breach of fundamental fight or freedom - Evidence obtained following breach of - Discretionary power to reject evidence - Constitution, ss 44, 57.

The Constitution, s 44, provides that �No person shall be subjected to the search of his person or property or to the entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law ... .�

The Constitution, s 57, provides that the fundamental rights and freedoms (including that within s 44) �shall be protected, and [are] enforceable in ... the National Court�.

An accused was arrested by police in his home in the early hours of the morning allegedly pursuant to a search warrant which, the trial judge found on the balance of probabilities, did not exist. Whilst in custody the accused made a statement containing admissions prior to which no warnings were given and subsequently the accused made a record of interview, containing admissions, which was preceded by the appropriate warnings and which the trial judge found beyond reasonable doubt to be voluntary.

N1>(1)�� The mere failure to warn an accused on a statement made prior to a subsequent and properly obtained record of interview will not render the record of interview inadmissible.

N1>(2)�� The remedy under the Constitution, s 57, is quite separate and independent of the common law discretionary power to reject evidence unlawfully or improperly obtained.

N1>(4)�� The power given under s 57 is wide enough to extend to prohibiting evidence which may be obtained in breach of a fundamental fight or freedom, and extends further than the discretionary power to reject evidence.

N1>(5)�� The onus of proof of satisfying the court that confessional material obtained following a breach of a fundamental right or freedom ought to be prohibited lies with the accused on the balance of probabilities.

N1>(6)�� Entering and searching premises without a lawfully obtained search warrant amounts to a breach of the fundamental right to freedom from arbitrary search and entry secured in the Constitution, s 44.

N1>(7)�� In all of the circumstances, the breach of fundamental right to freedom from arbitrary search taken with the element of unfairness, deriving from the fact that the warning when eventually given before the record of interview may have had little effect in the sense that it appeared that the police were above the law and consequently any warning given was rendered a hollow shell, required the court in the exercise of its discretionary powers both at common law and under the Constitution, to reject the record of interview.

State v Karara Peter (Unreported National Court judgment N438(M) dated 12 December 1983).

This was a ruling on the admissibility of a record of interview during a trial on charges of attempted robbery.

PRATT J: Kevin Evertius and Thomas Kundi are charged jointly that they attempted to commit the crime of robbery on James Jacobi at his residence on 2 May 1984. At this stage there is no evidence involving either of these accused in the incident. There is no identification evidence and the State has sought to tender a record of interview taken from the accused Kevin Evertius on 24 May 1984. The defence has objected to the tendering of this evidence on two grounds: first, that the confession was not made voluntarily and secondly, that in the exercise of my discretion I should reject the confession on the basis that it is unfair, first, because no warning was given prior to an earlier statement � that is a statement which preceded the record of interview and secondly, and far more importantly, that the accused was in effect in custody (that his liberty was restricted in the broader sense of the term �arrest�) following an entry into the premises in which he was sleeping without a proper search warrant being sworn out or produced. There was in fact, says Mr Aeava for the defence, a breach of s 44 and s 49 of the Constitution by the arresting police officers.

[The court then examined the facts surrounding the voluntariness of the confession and found the prosecution had discharged its onus beyond reasonable doubt, as required. The court did not believe the defence evidence as to assaults.]

Mr Aeava has also objected to the admission of the record of interview on the further ground of unfairness. He urges me to exclude it in the exercise of my discretion on two main grounds. The first is, that the earlier statement (I gather some three or four pages) which was reduced to writing was on the evidence by the police themselves a statement made without any indication of constitutional rights or a warning under the judge�s rules. I am not quite sure how this failure to warn is said to have an effect on the subsequent events where both the warning under the Constitution and the Judge�s Rules were given before the record of interview was taken, read back by the accused and signed. But I think what is being suggested here is that the earlier police conduct predisposed the accused to believing that he was required to answer questions despite the warning to the contrary. In other words, I think what defence is suggesting is that he did enter into the record of interview because he felt at that stage that the warning did not mean very much; and that he was under some apprehension as to the police intention to get a confession out of him before he was allowed to leave the police station.

Once again we come to the problem of his refusal to sign the first statement, because, as he said, he �had rights� which he �intended to exercise�, and because this was a false story. That is why he says he did not sign it � and this after quite a vicious attack on him by the police.

We then have his signature on the record of interview. I am certainly not convinced by his claim, that �Smythe forced me�. That�s all we could get out of him. There was nothing more than that. It was this vague sort of �Smythe forced me� but how, I don�t know. Why he felt he was forced is obscure. I must make some allowances here for language problems and for trying to express one�s feelings in the spoken word. Nevertheless I am still dealing with someone who has already once refused to sign and then turns round and signs later on. There is no suggestion really of any assault in the meantime or anything that would force him to sign. We are really getting into the same area of difficulty as I encountered on the question of voluntariness. I must say also that I am in some difficulty here because I do not know anything about what was contained in this long statement � I gather it was a long statement. It has not been tendered on the voir dire. I am kept in the dark about it though it can be a relevant factor in determining police conduct. I don�t know anything of the content of what everyone else is talking about.

In the final analysis, I am not convinced there is any unfairness involved in this area by itself � that is, that the mere failure to warn him on the earlier statement has some sort of effect upon his subsequent record of interview where he was given preliminary warnings, and thereby makes it unfair to receive such record.

I come then to the second ground which is the absence of the search warrant. The house in which he was sleeping, as was also his elder brother and his wife (in the lounge room) plus the other members of his family, was visited by a group of eight or nine policemen. What time really doesn�t matter. He says three or four, they say five or six. I can�t see why they should tell me an untruth. Be that as it may, there are good reasons why they would come at that time of the day and there are good reasons no doubt why they came armed. He does not make any point of the fact that they were armed. Nor can I see any relevant point about the difference in time. They knocked on the door. The door was opened by his brother and they asked if he was there. Now this is on the police evidence alone I am proceeding. He of course can�t help us here, and this will have some significance so far as the prosecution is concerned in a few moments. The accused could not say whether they had a right to enter or not because he was asleep and he says that he was woken up with a kick or a tap. It may have been a rough push with the hand. There is a conflict here about whether the room was broken into. His sister-in-law says that the door was broken open at the lock. He again can�t assist there. I think there is a certain honesty about this area which impresses me. It�s about the only area where I think honesty does arise. He can�t help me because he was asleep. Then he was handcuffed and taken outside. The police maintain they opened the door in the normal way.

Now s 44 of our Constitution guarantees that all persons in Papua New Guinea, be they citizen or otherwise, shall not be subject to the search of person or property or to entry of their premises except to the extent that the exercise of that right is regulated or restricted by a law. The law involved here of course is twofold � that under the Arrest Act especially s 3, and that under the Search Act, particularly s 5. Let me simply put this in a shortened form. Before the police can enter private premises without the consent of the occupant, they must have a warrant to do so. It is as simple as that. There are exceptions which we need not bother going into at the moment. There is no suggestion in this case, by the way, that any permission was asked. It has never been put forward as a part of the evidence that any permission was given. In fact the police are fairly and squarely relying on the existence of a search warrant. They say they had a lawful right to enter the premises because a court had given them permission. In addition to s 44 there is another section which counsel relies upon, which is s 49 of the Constitution, a right to privacy. Every person has a right to reasonable privacy in respect of his private and family life, etc except to the extent that it is regulated by law. So once again we come back to the Search Act[iv]¹�and the Arrest Act.

Now the question of whether or not I accept or exclude the evidence is at the very least a matter of discretion or may be more than that, in so far as the discretion stems from the infringement of a constitutional right. As the Chief Justice, Sir Sydney Frost said in Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 371:

�... 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.�

Nevertheless, that it is still a discretionary matter was emphasised by Prentice Dep CJ (at 379) and, in common with the other judges sitting in that case, there is no mandatory exclusion of disputed evidence. Evidence obtained in breach of the provisions of the Constitution is not thereby automatically excluded. It is a discretionary matter. Both the Chief Justice and the Deputy Chief Justice make it clear that what they were saying in respect of s 42(2) also has application to breaches of other sections dealing with fundamental and qualified rights.

My final view however of the ratio of the Supreme Court decision in Constitutional Reference No 1 of 1977 has already been expounded by Kapi Dep CJ in a case drawn to my attention by Mr Aeava, namely, the decision involving s 57(1) of the Constitution, namely, John Alex v Martin Golu [1983] PNGLR 117 at 120 of that judgment, Kapi Dep CJ has this to say about the enforcement provisions of s 57 vis-a-vis s 44 of the Constitution:

N2>�(a)�� The remedy under s 57 is quite separate and independent of the common law discretion of rejection of evidence which is obtained illegally;

N2>(b)�� the power given under s 57 is discretionary and may be exercised in appropriate cases;

N2>(c)�� the power given under s 57 is wide enough to extend to prohibiting evidence which may be obtained in breach of a fundamental right or freedom;

N2>(d)�� the power given under this provision extends further than the discretion to reject evidence on the trial.�

With respect I adopt his Honour�s statement, particularly as the matter before his Honour was similar to the one before me and directly involved the application if s 44 of the Constitution.

In view of the provisions of our Constitution, it is perhaps not surprising that the development of our law which I have just reviewed could lead to a divergence from the direction occurring in the English common law on search warrants and the consequence of illegal police conduct expressed at its high point by the English Divisional Court presided over by Lord Widgery CJ in Jeffrey v Black [1978] QB 490. The constitutional requirements on fundamental rights alone makes such a development wholly unacceptable and inappropriate to the circumstances of Papua New Guinea. With the greatest respect, I find the reasoning behind their Lordships� decision difficult to follow and even more difficult to justify. I am in complete agreement with the criticism of the decision expressed by Professor Rear referred to in an article on the case appearing in (1978) 52 ALJ 215 at 218. I note that the Divisional Court in McLorie v Oxford [1982] QB 1290 at 1297 is not happy about Jeffrey v Black commenting: �The basis of Lord Widgery CJ�s dictum is not disclosed and it was wholly unnecessary for the decision in the case.� Lord Roskill has also expressed some reservations about the matter in R v Sang [1979] 2 WLR 439 at 454. On appeal in Sang�s case to the House of Lords [1979] UKHL 3; , [1980] AC 402, Viscount Dilhorne (at 441) says of Lord Widgery in Jeffrey�s case following Lord Parker CJ in an earlier decision in Callis v Gunn [1964] 1 QB 495, �I do not think these observations were correct�. Lord Salmon considered Lord Widgery�s statement was obiter (at 444) though Lord Fraser of Tullybelton and Lord Scarman do not seem to be greatly troubled.

In my opinion both s 44 and s 49 of the Constitution do in fact �secure the integrity of the judicial process by not having that process appear to sanction official lawlessness by allowing evidence to be used notwithstanding the manner of its seizure�. I do not believe the courts in Papua New Guinea should accept as a complete statement of the law the summary set down in R v Sang by Lord Diplock (at 437) in the following terms:

N2>�(1)�� A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.

N2>(2)�� Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.�

However it may well be that Lord Diplock�s proviso on confessions and admissions means that our ultimate positions are not greatly different.

I have dealt so far with the legal principles, before I come to the question of who carries the onus of proof on the question of this search warrant and to what degree must I be satisfied that the onus has been discharged. Mr Bona for the prosecution says that it is a matter of being satisfied only on the balance of probabilities. Mr Aeava, I think properly concedes that this is so and I believe it must be so. It is the defence which asserts there has been a breach of fundamental right and it is part of the material adduced to convince me that I should exercise my discretion in their favour to exclude the confession. The law is well established that the onus is on the defence to convince the judge that he should exercise the discretion in its favour. If reference were required for that assertion of principle one need not go past the case I referred to a moment ago (Constitutional Reference No 1 of 1977).

Now what are the facts which I have here? They are very few. Sergeant Taumik says in a vague sort of way, �we had a search warrant�. He says no more than that. It was not taken any further. Sub-Inspector Gerari, on being pressed somewhat, says that they had a warrant but lost it, as was the case with two other warrants relating to two other people arrested on that morning. Now I think there is some significance about this � not one warrant missing but three warrants. The warrant was never shown or mentioned to the accused. It might be legitimately put by Mr Bona:

�Well, why should it be? The police had already entered the house. They had already arrested the accused after showing the warrant to the couple at the door. They took him back to the police station. Why should they show it to him when he was not the person who let them into the house.�

But this factor has a very special significance in my view, when the police can�t find the warrant afterwards, and when the only evidence they are going to have against the accused is the confession. No other evidence at all. The significance of the warrant and its existence must surely be very apparent on the day of the arrest.

Nor was this warrant seen by Mrs Evertius, the sister-in-law of the accused. Now I think this is very significant because Mrs Evertius, I am sure, is an ordinary citizen of the country, not particularly skilled in the laws that govern the arrest and search of criminals. In fact, I do not think she has had any association with the criminal element, or the criminal law until this instant. I do not believe Mrs Evertius was telling an untruth in this Court when she says she saw no paper produced or presented nor was any warrant mentioned, and she was there when the door was opened. So if the police did have a piece of paper it was very well hidden. However, the warrant cannot be located. It and the other two were said to be lost during the office transfer or may be put in some other file. As I said I think it is not insignificant that two other warrants seemed to have got lost in relation to two other suspects who were arrested on the same morning. No copy has been made available to this Court of the warrant. I haven�t even been told whether copies of warrants are wade. I am again being kept in the dark. No evidence has been adduced from the District Court magistrate or clerk or anyone else re the issue of the warrant. Despite Mr Bona�s assurance concerning the undoubted experience of such police officers as Superintendent Smythe and Sub-Inspector Gerari I have grave doubts as to whether a warrant ever existed in the first place. Indeed I am satisfied on the balance of probabilities that such warrant did not exist.

What effect does this finding of fact have? It is a failure by the police to obtain a legal justification for interfering with a fundamental right. There are no doubt members of the police force and of the community, who at this present time, with our severe law and order problems, believe that the police should be able to enter premises in the pre-dawn hours and take possession of what is pretty clearly stolen property and suspects without the necessity of obtaining warrants. My position is quite clear. That is not the law, and I trust, for Papua New Guinea�s sake it never will be. For if the police can engage in conduct which is no better than that of the criminals whom they are seeking out then we have lost the fight against crime.

Of itself, the warrants justify action, which on their face would appear to be in breach of the Constitution, s 44 and s 49. They justify such action for the very good reason that someone on oath has convinced a magistrate in pursuance of the requirements of the Search Act that the right of privacy provided for under the Constitution, s 44, should be violated.

If I find as a fact that indeed this fundamental right has been breached and yet I allow in a confession taken in clear breach of that section of the Constitution it seems to me I will be doing nothing less than making a mockery of our Constitution. I say this in the full awareness that it is still a discretionary matter, and must depend on a number of circumstances. But I am very conscious of the fact that I should not do something which makes the Constitution look like a piece of worthless paper (see also Kidu CJ in State v Karara Peter (Unreported National Court judgment N438(M) dated 12 December 1983).

The second point which I should bear in mind is � what effect all this has on the accused. Because if it had no effect at all, then it may well be in the exercise of my discretion that I should still allow the confession to go in. But this is where we get to a stage where the coalescence of a number of different matters starts to have real importance. It was an early morning raid. The accused was awoken from sleep. He was certainly placed in a situation in which it was clear to him that he had no real say in where he was going or what he was doing. He was in the police station with five around him to start with. He was not given any warning or his constitutional rights in relation to the first statement made by him. And it may well have been that had he not been so interested in telling me a pack of lies about being thumped in the police station, that the real position would have come through. It would not be surprising after all these events if the suspect simply believed he had to do what was required of him by the police. In other words, the warning when eventually given before the record of interview, may have had little effect in the sense that it appeared that the police were above the law and consequently, any warning given under the Constitution or the Rules was rendered a hollow shell. In my view, quite apart from the reaction I have to the breach of the Constitution, s 44, there is that element of unfairness involved here which has been the subject of a number of judgments over the years including that of Prentice J (as he then was) in the case of R v Suk Ula [1975] PNGLR 123, referred to me by defence counsel.

The principle of fairness under the common law which I believe broken here, is linked with a breach of a fundamental right given to all people in Papua New Guinea under the Constitution, s 44. It would, I believe, set an extremely dangerous precedent for me in these circumstances to admit a confession taken under those circumstances.

In the exercise of my discretion both under the common law and more especially under the Constitution, s 44, I therefore reject the tender of the confession into the State case.

[iv] The Search Act was specifically brought within the provisions of Subdivision III, 3c of the Constitution by s 1 of amending Act No 13 of 1978.

Papua New Guinea Law Reports

State v Evertius and Kundi [1985] PGLawRp 465; [1985] PNGLR 109 (14 May 1985)

Papua New Guinea Law Reports - 1985