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State v Kwainfelin [1986] PGNC 34; [1986] PNGLR 106; N543 (6 May 1986)

N543

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

WIN KWAINFELIN AND SEVEN OTHERS

Wewak
Pratt J
6 May 1986

EVIDENCE - Confessions and admissions - Discretion to exclude - Unfairness to accused - Record of interview - Taken in custody - Taken 28 days after charged with offence - Breach of Judges’ Rules, r 3 - Breach of Constitution, s 42(3).

CRIMINAL LAW - Evidence - Confessions and admissions - Discretion to exclude - Unfairness to accused - Record of interview - Taken in custody - Taken 28 days after charged with offence - Breach of Judges’ Rules, r 3 - Breach of Constitution, s 42(3).

On 19 January an accused was taken into custody and charged with rape. On 21 January he was taken before a court, formally charged and remanded in custody by the court to a Corrective Institution. The accused was returned to the police cells, where some 28 days later, a lengthy interview was conducted and recorded as containing some 97 questions and answers. On objection to the admissibility of the record of interview,

Held

(1) In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness regard may be had to the Judges’ Rules 1912 as part of the underlying law of Papua New Guinea.

(2) Rule 3 of the Judges’ Rules 1912 which states that "persons in custody should not be questioned without the usual caution being first administered" is not to be interpreted as encouraging or authorising the questioning or cross-examination of a person who has been taken into custody and charged.

(3) In the circumstances the lengthy questioning of the accused 28 days after being charged with the offence amounted to harassment of a person placed under the protection of the judicial system and to cross-examination of a person in custody, contrary to the Judges’ Rules, r 3.

R v Larson [1984] VicRp 45; [1984] VR 559, considered.

(4) The court should exercise its discretion to reject the record of interview because it would be quite unfair to the accused to do otherwise.

(5) (Per Pratt J) If there were also, as appears to be the case, a breach of s 42(3) of the Constitution, then that breach when conjoined with the breach of the Judges’ Rules, must make an ever clearer case for exercising the discretion against admission of the record of interview.

Cases Cited

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; 57 ALJR 15.
R v Ireland [1970] HCA 21; (1970) 126 CLR 321.
R v Larson [1984] VicRp 45; [1984] VR 559.
Smith v The Queen [1957] HCA 3; (1956) 97 CLR 100.
Voir dire

During the course of a trial on charge of rape objection was taken to the tender of a record of interview on the ground that to admit it would be unfair to the accused in that it had been obtained contrary to the Judges’ Rules and to the Constitution, s 42(3).

Counsel

K Bona, (with R S Patterson) for the State.
E Batari and F Pitpit, for the accused.

6 May 1986

PRATT J: I have before me the question of the admission of a confession tendered in the trial against one Mafisim Amboi. This confession has been challenged by Mr Batari on behalf of the accused on the basis, first that it was obtained involuntarily, and therefore was not admissible under the Evidence Act (Ch No 48), and further that it was obtained in breach of the Constitution and of the Judges’ Rules, thereby seeking activation of the judicial discretion.

There is one complication. The original record of interview was taken down in handwriting, read by the accused (although he claims that it did not correctly set out the substance of the conversation between him and his interrogator) and was signed by him. That handwritten record of interview has been lost. The interrogator, Constable Jew Kara says he typed up a Pidgin and English version. Constable Kara says, "he, the accused read it and signed it the next day". He further says, "I did the English translation the next day". It is safe to assume here as the record of interview started at 3.05 pm on 14 February and finished at 5.13 pm, that, when taken together with all the other work which fell upon the shoulders of Police Constable Kara and others at Maprik, the signature was not put on the Pidgin version of the typed record of interview until the next day, at least. However the accused disputes even that matter, and says that he affixed his signature to a document after he had been released on bail (which must be sometime in March or possibly even in early April). He was requested or ordered to return to the police station where he says this document was placed in front of him and without being permitted to read it or indeed requesting to read it, he simply affixed his signature on each page. Whom can I believe in this conflict between the police and the defence, bearing in mind of course that the onus is on the prosecution on the question of voluntariness to satisfy me beyond reasonable doubt. For the purpose of this voir dire I find that the accused is a most untrustworthy witness. For obvious reasons I should say no more than that, at this point in time. I still have a trial to go through. But even though in one respect the acceptance of the accused’s account would be against his own interest, I find great difficulty in selecting as a matter of truth any particular statement made by the accused. I therefore reject his version of events and accept that exhibit N1 on the voir dire was (a) typed up accurately from the hand copy of the record of interview, (b) read by the accused and (c) signed by him all within 24 hours of 14 February 1985.

Pausing here for a moment I think it would be useful to give a brief resume of the history of this matter. The accused was clearly taken into custody on Saturday, 19 January and charged with a crime of rape on that date. He was brought before the Maprik District Court on 21 January and remanded in custody by the Court to the Corrective Institution, Maprik. I have exhibited before me on the voir dire a copy of the warrant issued by the learned magistrate. The accused was returned to the police cells. That also is not in any doubt. Maybe the police cells were a lock-up within the meaning of s 11 of the Corrective Institutions Act (Ch No 63). I simply do not know — I have no evidence on the point and for that reason I must proceed on two bases: (1) that it is a lock-up within the meaning of the Corrective Institutions Act and (2) that it is not. Continuing then with the history, on 22 January the accused claims that he and his twelve friends were made to bear their buttocks in the police station at the instigation of Constable Fred Sagu. I do not propose to comment upon this claim any further in a voir dire, than to say I dismiss it. Then on 25 January a statement was obtained (said to be incriminatory but it has not been tendered). On 14 February the accused was still in police custody. Now I shall proceed on the two bases which I have just mentioned. Basis (2) is that the police cells were not a place declared under s 11 of the Corrective Institutions Act (Ch No 63). In other words, they were straight out police cells, and nothing more.

By s 42(3) of the Constitution any person who is arrested or detained must be brought without delay before a court. A desire to interrogate such person is not a sufficient reason for delaying this procedure (see s 42(4) of the Constitution). These subsections are set down in s 42 for many sound reasons. It of course assumes that a court order will be observed by members of the Royal Papua New Guinea Constabulary who are inter alia to maintain and enforce the law in an objective manner under s 197 of the Constitution. For the police to take a person before a court and then flagrantly to disregard the court order would amount to a fundamental breach of a requirement set down in the Constitution concerning the liberty of the person. It cannot be said that by taking someone before a court and then disregarding the court order which directed that continued incarceration shall be at the hands of the Corrective Institutions Service, and not the police, is a proper compliance with s 42(3). In my view it would amount to a clear breach, and could well have an effect on the exercise of the judicial discretion to admit or reject the confession.

I now go to basis (1) namely that the police cells at Maprik were a lock-up within the meaning of the Corrective Institutions Act and consequently retention of the accused at Maprik police station after 21 January did not constitute a failure to implement an order of the court.

It brings me directly to the Judges’ Rules. I am still satisfied to remain with the old Rules of 1912 as being part of the underlying law dealing with the exercise of judicial discretion in Papua New Guinea. It may be that since Independence the 1964 Rules are more appropriate but it is not necessary for me to decide that here.

Rule 3, which I extract from Carter’s Criminal Law of Queensland 1982, 6th ed at 694 reads as follows:

"Persons in custody should not be questioned without the usual caution being first administered."

I find that a proper caution was administered and understood by the accused in this case despite his claim to the contrary. He is an intelligent young man with some reasonable command, I believe, of English and certainly a full command of spoken and written Pidgin. He is quite articulate and does not come from some area far removed from Government influence. He is fully aware of his rights, and I believe was so on 21 January.

I now pass to the more important aspect of this Rule, namely the 1930 circular. I will quote that in part:

"Rule 3 was never intended to encourage or authorise the questioning or cross-examination of a person in custody after he had been cautioned on the subject of the crime for which he is in custody and long before this rule was formulated, and since, it has been the practice for the judge not to allow any answer to a question so improperly put to be given in evidence."

The circular goes on to explain that the prohibition does not cover comparatively innocuous questions such as of those which might be asked to clear up ambiguities in any statement the accused has made.

It is clear in this case that the accused was in custody. The police quite properly charged him after they arrested him on 19 January and certainly on 21 January he was brought before the court and formally charged with the offence. It is also said that the accused made some sort of confessional statement on 25 January. It is equally clear that he was kept in police custody with twelve others at least until 14 February (that is twenty-eight days) before he was subject to police questioning at length. I note there were some ninety-seven questions asked and answered. Whilst no criticism can be made of such a lengthy course of questioning where police are endeavouring to ascertain the author of a crime, the situation is entirely different where the person questioned has already been charged with the offence, remanded by a court and then questioned at length later on. To my mind this amounts to harassment of a person who has now been placed under the protection of the judicial system and in the circumstances of this case to a cross-examination within the meaning of the 1930 circular to the Judges’ Rule. None of this is new law. The area was extensively canvassed in the fifties, sixties and seventies in this country. The record of interview is a comparatively recent development of police technique and when used in the proper circumstances, is a most useful weapon in the arsenal to fight crime. It usually takes place at police stations but even then it may run the risk of being carried out in breach of the rules where a person believes he is in fact in custody (see Smith v The Queen [1957] HCA 3; (1957) 97 CLR 100). Leaving that aspect aside however, it was never contemplated in my view that the record of interview would be used as a technique to be employed after an accused person had been taken into custody and even more so after he was charged before the courts. Somehow or other such practice has developed over the past few years in Papua New Guinea. At one stage in the recent past it seems to be quite erroneously thought by the police that if they delayed in charging a suspect till after the record of interview was completed that was quite in order, despite the fact that he was clearly under restraint and detention before the record of interview even started. This phase now fortunately seems to have passed or to be passing. But the new development is just as bad — and it is just as much in breach of the Judges’ Rules as the previous one.

It is said these factors did not affect the mind of the accused for he claims he spoke only in response to a promise and shouts by his interrogator. I do not believe that this is the whole point. What the courts will set their face against is unfair or improper police practices as a matter of policy. In the circumstances of this case it is impossible to avoid the conclusion that such improper practices must have had their accumulated effect on the mind of the accused, and the fact that he singles out in his own mind some other feature, does not preclude the undoubted effect of such practices. To find otherwise would be to fly in the face of commonsense. I appreciate that quoting decisions of single judges at trial in other Supreme Court jurisdictions is not particularly helpful, as one can often find an opposite decision. However the case of R v Larson [1984] VicRp 45; [1984] VR 559 is at least a handy example to illustrate the type of situation I am talking about. Reading from the ALMD Report:

"L who was of limited intelligence ..." [certainly not the case before me], "was placed in the police cells at 5 pm and left on his own for a period of six hours apart from a brief visit from a lawyer. L then had a conversation with a police officer without any caution being administered and this was followed by an interview which lasted for a period of five hours. L was not taken before a court pursuant to the Crimes Act 1958 (Vic) s 460, until over 24 hours later."

This case therefore is dealing with the 24 hour period not a 28 day period.

It was held:

"(1) The evidence, the record of interview and the preceding conversation should not be admitted. While the statements of the accused were shown by the Crown to be voluntary they had been obtained in circumstances which would render it unfair or unjust to use them against him. They should therefore be excluded in the exercise of the ‘unfairness’ discretion in accordance with the principles laid down in R v Lee [1950] HCA 25; (1950) 82 CLR 133. (2) The statements should also be excluded in the exercise of the residual or public policy discretion. The conduct of the police had demonstrated a flagrant disregard for the rights of the accused. Their contravention of the provisions of s 460 was in the particular circumstance of this case, such as could not be described as technical or insignificant."

It is obvious from the last piece I have read that this authority has even more relevance to the present matter before me, if the accused was kept in the police cells against an order of the court saying that he should be in the custody of the Corrective Institutions. It very much depends on the facts of the particular case. Nevertheless I believe that the statement of principle concerning public policy in R v Larson has the clear support of other compelling authorities such as Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; R v Ireland [1970] HCA 21; (1970) 126 CLR 321 and Cleland v The Queen [1982] HCA 67; (1982) 57 ALJR 15.

Returning now to the matter in hand, I find that in the present case the conducting of this record of interview with Mafisim Amboi on 14 February 1985 was carried out in clear breach of rule 3 of the Judges’ Rules and I exercise my discretion to reject the confession because it would be quite unfair to the accused to do otherwise. It goes without saying that if there were also, as appears to be the case, a breach of s 42(3) of the Constitution, then that breach, when conjoined with the breach of the Judges’ Rules, must make an even clearer case for exercising the discretion against admission of the record of interview.

May I say in closing that I appreciate the difficulty the members of the Police Force and Criminal Investigation Division were placed under at Maprik at this particular time. Not only did they have a thirteen man pack rape but they also had to investigate another rape which apparently occurred separately on the same night in question in relation to another girl who was attending the same six to six dance. Furthermore at about the same time a murder was reported and required to be investigated. The Maprik Police were given some assistance from Wewak. It may be they were not given sufficient assistance. I will say no more on that. The thirteen accused were brought to the police station by a councillor and Village Peace Officer. The matter was then clearly one officially reported. Perhaps the bringing of the accused to the station was the result of a police request directed to those officials to round up the suspects. For whatever reason, the incarceration of the accused on that Saturday was premature to say the least. It is a case of more haste less speed. This was not after all an inter-clan murder in which it was necessary to get the perpetrator into police custody for his own or his clan’s protection. The accused could have and should have been interviewed one by one over such reasonable period of time as was necessary to do so before any detention or arrest was made. True enough this would create certain logistical difficulties but they would not be insuperable; and in any case what would then be obtained as a result of avoiding illegal detention would become admissible evidence, not as has happened in the present case, a great waste of time. Having made my ruling therefore it is obviously unnecessary for me to deal with the other grounds, other than to say I reject the submissions that the confession was made involuntarily. In the circumstances this being part way through a trial I think it would be inadvisable for me to say anything further than that particularly as there may be other voir dires to deal with. I therefore refrain from making any comments on the evidence concerning cautions, promises and improper conduct by the police until it is necessary to do so.

The objection to admission of the record of interview is sustained. It will not be admitted as evidence in the trial. (The State then entered a nolle prosequi in respect of six of the eight accused.)

Ruled accordingly

_________________________

Lawyer for the State: E Kariko, Acting Public Prosecutor.
Lawyer for the accused: N Kirriwom, Public Solicitor.

[1986] PNGLR 112 - Kila Wari v Gabriel Ramoi and Kingsford Dibela