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State v Monja [1987] PGNC 13; N628 (27 October 1987)

Unreported National Court Decisions

N628

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 747 OF 1987
THE STATE
-V-
ALBERT MONJA

Waigani

King AJ
27 October 1987

KING AJ: The accusedobjected to theo the reception in evidence of a record of interview on the general ground of unfairness I must now decide on the admissibility of that document having heard evidence from both on the voir dire..

Without outlining in detail the State’s evidence it can be said that the evidence of Policewoman Leonie Sarotsi who was the interrogator and Constable Bob Yamin who was the corroborator completely supports the admissibility of the record of interview. It is therefore convenient to approach the matter by examining, on all the evidence the grounds on which it is challenged by the defence as being unfair.

First it is said that there was a breach of s. 42 of the Constitution in that the accused was not told at the outset that he had the right to see a personal friend. A perusal of the record of interview reveals that this is clearly so. But that alone would not lead me, in the exercise of my discretion, to exclude it since at a later stage the accused was told of that right and the police evidence, which he substantially conceded to be correct, was that he was told of his right to see the other relevant persons. There would need to be other factors to be added to this technical breach before I would think the interview could be described as unfair.

The substantial attack on the record of interview is that it was conducted between 5.50 a.m. and 8.49 a.m. on a Saturday morning when no legal advice would reasonably be available; that when the accused was told of his right to see a lawyer it was not sufficiently emphasized that he could see one before answering any further questions with the interview being suspended for that purpose; and that it was to some degree suggested to him that he might delay seeing a lawyer. I should mention that in support of these criticisms of the interview Mr. Sode got a concession from Constable Yamin in cross-examination that he did not personally think there was any legal adviser really available to the accused.

However I need not refer closely to the evidence, on these matters. As to the time, I do not think by itself it gives any cause for concern. The accused suggested he was drunk, but not that he was tired by reason of the time of the interview or the time he had been detained by the police which was since 12.30 a.m. He said he had no trouble understanding the questions or formulating his answers. He must have had his last drink some time before 12.30 and I accept that he was not drunk in view of the police evidence to that effect and his own evidence that he cuold understand and answer the questions. The police conducted the interview as soon as they reasonably could, having first taken the alleged victim to the hospital for examination and obtained her statement. It should also be borne in mind that questions of time need to be looked at from a practical point of view. If the accused had been detained and interviewed on Monday when commercial business resumed and lawyers were available quite readily, they might have been criticized for delay.

The crucial question is whether the time and the unavailability of legal advice coupled with the police suggestion (alleged by the accused) that he could see a lawyer now or on “Monday, Tuesday or Wednesday” amounted to a denial of his rights which was so unfair that in the exercise of my discretion I should reject the record of interview. Against this, the police evidence is that the accused freely agreed to wait before seeing a lawyer and that Wednesday was the day he nominated himself. The accused said that when the suggestion of now or “Monday, Tuesday or Wednesday” was put he opted for Wednesday. There is that degree of concurrence in the two versions but the significance of Wednesday is unexplained.

I have seen in a number of records of interview in my short time on the bench that accused persons when allegedly asked whether they want to see a lawyer “now or later” said “later”. Accused persons have in my short experience usually denied that they said “later” and I have the gravest suspicious whether such an answer would, as a matter of common sense or human nature, be given. But in this case the accused agrees that he did say he would see a lawyer on Wednesday when he was secondly asked, and when first asked the general tenor of the record suggests that he probably did say he would see a lawyer later.

The defence answers this by saying, in effect, “what choice did he have?” and went so far as to submit that it would never be proper for the police to suggest an option of seeing a lawyer “later” rather than straight away. Both parties referred me to several decisions but I do not feel it necessary to discuss them. None of them went so far as to support that submission and I think the submission overlooks a few plain truths. First, s. 42 only requires that a person be told of his rights. From that it must follow that he be given an opportunity to exercise them. That means, secondly, that they must be exercised, if at all, at some time. Logically it follows, thirdly, that the police must find out when a person who has said he wants to see a lawyer proposes to do so. It may well be that most people would want to do so immediately, but in order to find out I do not think it unfair to ask whether the lawyer is to be seen “now or later” or for a person not tired or drunk or otherwise at a disadvantage to say “later”, even selecting a day some days off.

I do not think the grounds relied on by the defence, individually or in combination, render the record of interview unfair and I admit it.

Lawyer for State: Mrs. Mugabwa

Lawyer for Defence: Mr. D. Sode