Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Aiyak [1990] PGNC 2; N799 (22 January 1990)

Unreported National Court Decisions

N799

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
LEO AIYAK

Rabaul

Jalina AJ
15-19 January 1990
22 January 1990

CRIMINAL LAW AND PROCEDURE - Evidence - Confessions and admissions - Voluntariness - Accused taken into custody - Assaulted - Record of Interview - Taken 7 days after accused had been in hospital under police guard - Whether accused, other witness and the police should give evidence to prove - Evidence Act (Ch No 48) s 28 considered - Accused, other witnesses and the police should give evidence as to voluntariness of confessions or admissions contained in a Record of Interview.

CRIMINAL LAW - Evidence - Confessions and admissions - Voluntariness - Accused taken into custody - Assaulted -Record of Interview - Taken 7 days after accused had been in hospital under police guard - Assault and threats considered as to voluntariness - Confessions and admissions rejected - Involuntary - Induced by assaults and threats of further violence.

The accused was assaulted and hospitalised prior to the Record of interview which contained confessions and admissions relating to the offence for which he was charged. During the course of the trial defence counsel objected to the admission of Record of Interview into evidence on the basis that the confessions and admissions contained in it were not voluntary as they were induced by assault and threats of further violence. Defence counsel also objected to the accused giving evidence relating to the voluntariness of such confessions and admissions stating that he had not experienced the accused being required to give evidence or to call other witnesses on the voire dire.

Held:

(1) &##160;; Where tere the acce accused alleges police brutality or impropriety and the police deny such allegation, the accused and other witnesses (if any) should give evidence as to voluntarinesat ismost desirable cole course.urse. Without both sides, particularly the accused being tested on his allegation by cross-examination, the court would not be in a position to decide whether the confessions and admissions were made voluntarily by the accused.

(2) &#16 the Record of Intervieerview or other document containing confessions and admissions are allowed to be rejected merely on the basis of an allegation(s) of an accused person as to police brutality or impropriety, the system of administration of justice would collapse in Papua New Guinea because a lot of cases would result in acquittals.

(3) ـ The conoessions ands and admissions in the Record of Interview were induced by assault and threat of further violence and shoe rej accoly.

Cases and Text Books Cited:

The following case cases ands and text text books are cited in the ruling:

(a) &#1ext Books

Chappelappell and Wilson - “The Australian Criminal Justice System”, Butterworths 1972.

Chalmers Weisbrot Andrew “Criminal Law and Practice of Papua New Guinea”, Law Book Company, 2nd 1985.

(b) &#16ses

R v Cowell [ell [1940] 2 All ER 599.

Reid v Kerr [1974] 9 SASR 367.

Sinclair v The King [1946] HCA 55; [1946] 73 CLR 316.

State, The v Allan Woila [1978] PNGLR 99.

State, The v Manasseh Voeto [1978] PNGLR 119.

State, The v Ogadi Minjipa [1977] PNGLR 293.

Wendo & Ors v R [1963] P&NGLR 242.

Counsel:

Mr Miviri, for the State.

Mr Tamusio, for the accused.

Cur adv vult

22 January 1990

JALINA AJ: The accused is being tried on indictment that he on 13 November 1988 at Kokopo in Papua New Guinea wilfully murdered Peter Diamto. The accused was taken into custody on 15 November 1988 and taken to Kokopo Police StatioConstable Joe Ninimbo and aand another policeman who is said to have left Kokopo Police Station.

During the course of the trial Mr Tamusio for the accused objected to admission into evidence confessions and admissions contained in a Record of Interview held with the accused by Constable Emmanuel Lufoava and corroborated by Constable Eki Jacob. The grounds of Mr Tamusio’s objections are based on s 28 of the Evidence Act (Ch No 48) in that the confessions and admissions were induced by:

(a) &#160aultsby Constable Joe Joe Ninimbo on 15 November 1988 when Constable Ninimbo first took the accused into custody such that the accused was hospitalized for seven (7) days as a result of such an assault.

(b) atsref fuother violence thre through the use of a gun by Constables Emmanuel Lufaova and Eki Jacob during the Record of Intervie22 Nor 198ch inew waducted 7 days after the accused was released from trom the Vuhe Vunapopnapope Hose Hospitalpital but back into police custody.

Mr Tamusio further contends that the signature of the Record of interview in the form of the accused printing his name was induced by such threats of violence as the accused cannot read or write.

Before I consider whether the confessions and admissions have in fact been induced by assaults and threats of further violence, there is one aspect of this voire dire that I consider I should spend some time on so that defence counsel, if not both counsel, can rest assured that the course I have adopted is the correct procedural course in so far as the voire dire is concerned. The need for such an explanation has arisen as a result of defence counsel stating that he had not been required to have the accused and others give evidence in a voire dire. This was after my intimation to both counsel that it was necessary for the policemen allegedly involved, the accused and possibly the doctor who treated the accused at the hospital to give evidence. Such evidence should not touch on the trial of the offence but should be confined to the circumstances surrounding or leading up to the conduct of the Record of Interview to enable me to determine whether any confessions and admissions contained in it were made voluntarily. I then indicated to counsel that the course I had proposed was the correct course because without the evidence being called on both sides (including the accused giving evidence relating to the interview) and such evidence being tested on cross-examination by both counsel, how am I to determine if the confessions were induced by assaults and threats of further violence, or if they were made voluntarily by the accused? The courts are here to ensure that both the accused’s interest as well as the public interest through the State are protected through a fair trial.

The requirement for the accused, the police and others to adduce evidence on the voire dire, has been accepted for a long time in England as well as in Australia. Chappell and Wilson in “The Australian Criminal Justice System” Butterworths 1972 at p 380 quote Lord Cooper in Lawrie v Muir (1950) SC(J) 19, at 26 as follows:

“It seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict:

(a) ـ The int rest of thef the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and

(b) The interest of the Stateeto secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law from any mere formal or teal gr

In Sinclair v The King [1946] HCA 55; [1946] 73 CLR 316 it was held that a confession is not necessarily inadmissible as evidence upon a criminal trial because it appears that the prisoner making it was, at the time, of unsound mind and, by reason of his mental condition, exposed to the liability of confusing the products of his disordered imagination or fancy with fact. The question of the admissibility of a confession, even though the question depends upon a decision on fact, is for the judge and it is a proper course for the judge in a criminal trial to hear evidence on the voire dire in the absence of the jury. When the confession is admitted it is for the jury to determine the weight, if any, to be given to it. In the same case Rich J said at pp 325-326:

“I think the law on the subject to be reasonably plain. If, in the course of a trial by judge and jury, a question of law arises as to whether matter tendered in evidence is legally admissible, two positions may arise. The question may be purely one of law. In this class of case, it is obviously for the judge. Or the legal admissibility of the evidence may depend on the existence of a fact. In this class of case, it is for the judge to hear on the voire dire, in the absence of the jury if their hearing the evidence may prejudice the trial, such evidence as may be adduced of the existence or non-existence of the fact and to determine whether he is satisfied of two things, that the fact exists, and, if so, whether, as a matter of law, its existence makes the evidence admissible or inadmissible (De Gioia v Darling Island Stevendoring and Lighterage Co Ltd [1941] NSWStRp 53; (1941) 42 SR(NSW) 1 at p 8). The question whether a confession is voluntary is an instance of this (Minter v Priest (1930) AC 558 at 581, 582). If the admissibility of the evidence depends upon the existence of the fact and the judge is not satisfied by the evidence given on the voire dire that it exists, he rejects the evidence. If he is so satisfied he admits it. But it does not follow from this that the evidence given before him on the voire dire on the question of whether the evidence should be admitted may not, in a proper case, be given again in its entirety as evidence in the trial, not of course for the purpose of inviting the jury to give a ruling on admissibility of evidence, but for the purpose of assisting them to consider whether, in their opinion, the evidence qualifies the weight of the evidence which the judge has admitted. This is a point which occurs every day in courts exercising criminal jurisdiction. The prosecution tenders a confession made by the prisoner to the police and subsequently written out and signed by him. It is almost common form for the document to be objected to on the ground that it is not voluntary and for the judge, then, in the absence of the jury to hear evidence on the voire dire from the prisoner that he was forced to make the confession by brutal ill-treatment on the part of the police, and from the police in denial of this allegation.

If the judge is not satisfied that the prisoner’s assertions are true, he admits the confession, and afterwards the prisoner, in the witness box, or more commonly is a statement from the dock, repeats his allegation of ill-treatment to the jury, who, after having heard the denials on Oath of the police officers, give it all the attention which, in their opinion, it deserves. It has never been suggested that a trial judge acts otherwise than with perfect propriety in taking this course; or, on the other hand, in rejecting the alleged confession if he thinks it reasonably possible that there is some truth in the prisoner’s assertion.”

The above views of Rich J have been quoted some twenty (20) years later in the authoritative text book “Cross on Evidence”, 3rd Australia Ed. Butterworths, 1986, at p 279. Other discussions in this respect can also be found on the same page.

The necessity for the accused to give evidence before the judge could decide on the question of admissibility of a confessional statement is discussed in R v Cowell [1940] 2 All ER 599.

The necessity to call evidence from both sides on a voire dire has in my view been widely accepted by the courts in Papua New Guinea, particularly the National Court. See R v Gelu-Gaua (1962) No 256, where Minogue J (as he then was) rejected the accused’s allegation that the confession was induced by threats or promise because the accused had not given evidence or cross-examined the prosecution witnesses regarding such threats or promise. In the numerous National Court decisions on admissibility of confessions I cannot recall seeing my senior brethren saying that all that an accused is required to do is merely to make an allegation of police impropriety or brutality and then leave it at that. If, in cross-examination by defence counsel, the police deny the allegation, certainly the accused has no choice but to give evidence himself and also call other evidence. That appears to me to be the most desirable course. I have not been made aware by defence counsel of any National or Supreme Court decisions to the contrary. Such a practice in my view would also be desirable in Papua New Guinea because of the words “unless the contrary is shown” in s 28 of the Evidence Act (Ch No 48). These words clearly require evidence to be called by the police or any person in authority to rebutt the allegations of the accused. It follows that the accused should give evidence himself and adduce other evidence to substantiate his allegations. As I said earlier in my discussion on this issue; without both sides particulary the accused being tested on his allegations, is the court supposed to rule the confession inadmissible just because the accused alleges that the police did this and that to him? No. The court would not be in a position to decide whether the confessions and admissions were made voluntarily by the accused. Notwithstanding the fact that the prosecution is required to prove voluntariness beyond reasonable doubt State v Allan Woila [1978] PNGLR 99 the defence should at least, in my view, substantiate its allegations through evidence properly adduced and tested by the prosecution and vice versa by the defence through cross-examination. If the Record of Interview or other document containing confessions or admissions are allowed to be rejected by the court merely on the basis of an allegation of an accused person as to police brutality or impropriety the system of administration of criminal justice would collapse in Papua New Guinea in my view because a lot of cases would result in acquittals.

I now turn to the question of voluntariness of the confessions and admissions in the case before me and their admissibility into evidence. Evidence was taken on the voire dire. There are many clear differences in the evidence called by the State, i.e. from the investigating officer, Constable Emmanuel Lufaova, Constable Eki Jacob, (the Corroborator) and Constable Joe Ninimbo on the one hand and the accused and Dr Ronald Wick on the other.

The accused gave evidence that in the afternoon of 15 November 1988 he was arrested by three (3) CID policemen at his sister’s house at Vuvu and taken to Kokopo Police Station. He denied any knowledge of the circumstances surrounding the deceased’s death when they questioned him. At the CID Office at Kokopo Police Station, while he was sitting down he was kicked (assaulted) on his left side by Constable Joe Ninimbo. He fell down, vomitted and was taken outside and they poured water on him. The next thing he knew was that he was at the hospital at Vunapope. While he was at the hospital he was given blood. The police were guarding him night and day until he was discharged back into police custody on 21 November 1988. Constable Ninimbo denied that the accused was assaulted. He said that after the deceased’s death, there were police operations day and night to find the killer. He said that it was during this operation that he (the accused) was stopped at Malaguna Village by some people while he (Constable Ninimbo) was on his way to Rabaul and advised that the suspect had been located. At Malaguna Village, the suspect, which later turned out to be the accused, ran away and was caught by people who chased him and beat him up. There were many people there who kicked and punched the accused. When he and another policeman finally caught up and took the accused into custody, the accused had bruises on his face. His face was swollen. After the accused was taken to Kokopo Police Station he was taken to the CID Office where there were many policemen present. There were no other CID policemen there at the time. Constable Ninimbo left the accused with the other policemen and he (Constable Ninimbo) waited outside. Later he went in and he saw the accused sitting on a chair. He (Constable Ninimbo) went and stood at the back some distance away. There were many policemen there also at this time. In the CID Office he talked to the accused who complained of stomach pain. The accused then fell down when he tried to stand up and vomitted so Constable Ninimbo escorted him outside and poured water on him. The accused then walked into the CID Office himself. Later the ambulance from Vunapope Hospital came and took the accused to hospital. Constable Ninimbo did not ring the ambulance. Somebody else did. Constable Ninimbo’s evidence as to the accused being arrested at Malaguna Village and being beaten up by the village people and his complaint of stomach pain at the Police Station at Kokopo was not put to the accused in cross-examination.

Constable Ninimbo is a policeman with almost 15 years of service in the police force - almost 12 years of those in the CID. I consider him to be an experienced investigator and no doubt during this period he has arrested many suspects and conducted Records of Interview with them as well.

Prior to the arrest of the accused it appears that the entire Kokopo Police were involved in the operation day and night with little rest. One can imagine the feeling of anger in the heart and mind of each policeman when they learned that a suspect, which later became the accused, had been arrested and that some, if not all of them, wanted to release their anger and frustration on him by beating him. It is not uncommon to hear of this happening in the police cells. I find it difficult to comprehend why Constable Ninimbo, an experienced policeman, became unconcerned about a suspect he had arrested. I would have thought that Constable Ninimbo would have done everything to ensure that his suspect, the accused, was properly treated, charged and sucessfully prosecuted. It seems to me that because Constable Ninimbo assaulted the accused by kicking the accused resulting in the accused being unconcious, he become scared and decided not to do anything further with the accused including making a telephone call to Vunapope Hospital for the ambulance to pick up the accused.

To ensure that his (the accused) allegation that the police assaulted him at the police station is worthy of belief, the accused called Dr Ronald Wick, the Medical Superintendent of Vunapope Hospital who treated him (the accused). Dr Wick, who first refused to appear but later appeared in person after I threatened him with contempt of court, gave sworn evidence. He also prepared the following report which has been tendered by the defence:

“This man was admitted on 15 November 1988 after he was brought to the hospital by the police for examination. He had been apprehended by the police as a suspect in a robbery and murder at a local plantation, and according to them, had fallen in the bush and injured himself. He later stated that he had been beaten by the police rather than being injured in a fall as they stated.

Examination on admission showed no evidence of trauma except that he had generalized abdominal tenderness which was worse in the upper left side of his abdomen. By the next day his abdomen was more painful and slightly distended, and it was felt that he had mild bleeding from some injury either inside his abdomen or of the abdominal wall. He was watched closely and given 2 units of blood, and gradually recovered over the next few days without need for surgery. He was discharged to police custody on 21 November 1988.

This man certainly suffered a significant injury to his abdomen prior to his admission here. It is impossible for me to say however, from the available evidence, whether the injury was the result of a fall or a beating.”

The doctor’s evidence is consistent with that of the accused. The accused says he was kicked on the left side and so does the doctor who says that he found abdominal tenderness on the left side and that he gave blood to the accused. Constable Ninimbo’s evidence that the accused was kicked and punched by Malaguna villagers is in direct conflict with what the police told Dr Wick namely, that the accused had fallen in the bush and injured himself. The accused in fact later told Dr Wick that he had been beaten by the police rather than being injured in a fall as they stated. It is not surprising that the accused mentioned this to Dr Wick because he must have felt that it was safe for him to tell Dr Wick. If the accused had fallen and injured himself or if he had been beaten by village people, he would have told Dr Wick. Another important aspect in which Constable Ninimbo’s evidence differ with that of Dr Wick’s is that Dr Wick did not find any evidence of bruises to the accused’s face especially when the accused was taken to the hospital on 15th November - the same day Constable Ninimbo says the village people at Malaguna kicked and punched the accused.

The fact that Dr Wick had stated in his report that it is impossible for him to say whether the injury was the result of a fall or a beating is of little, if not of any, consequence to me in view of what I have said above in respect of the various conflicts with Constable Ninimbo’s evidence.

With regard to the Record of Interview, the accused does not deny that he confessed as well as admitted other matters relating to the deceased’s death but says that he did that because Constable Eki Jacob had a gun with him whilst he (the accused) was being interviewed by Constable Emmanuel Lufaova and because he was beaten up by the police earlier and hospitalised he got scared that if he did not co-operate with them he could be subjected to further assault. He stated that even when he was speaking to someone from the Public Solicitor’s Office they still had the gun and he did not mention that fact to the Public Solicitor because he was scared. Constables Lufaova and Jacob denied that there was a gun and that they threatened the accused.

During the course of the evidence I observed the accused very carefully and I find him to be a simple villager who generally remembered the events that took place between 15th and 22 November 1988 (over a year ago) well. He was not shaken throughout the very lengthy cross-examination that he went through. The prosecution witnesses on this voire dire (who were policemen) appeared to me to be evasive in their answers to questions put by the defence counsel during their respective cross-examination. From the experience that the accused had gone through it is not surprising that even though he cannot read or write, had to do the best he could by printing his name on the Record of Interview. If he was educated as claimed by the prosecution, there is no evidence to confirm this. I take him to be without any formal education.

Mr Tamusio for the accused submits that I should reject the Record of Interview as it contains confessions and admissions which were not made voluntarily. This, he submits, is clear from the accused’s evidence supported by Dr Wick’s evidence. The evidence of Constable Ninimbo that the accused was punched and kicked by village people at Malaguna should not be believed as it was not put by the prosecution to the accused and tested during cross-examination. For this submission Mr Tamusio relies on Reid v Kerr [1974] 9 SASR 367 at 374-375 where the rule in the well known case of Browne v Dunn (1894) 6 The Reports 67 (HL) was referred to and quoted to me the following passage:

“Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent’s witness in turn so much of his own case as concerns that particular witness, or which that witness took some part. As a corrollary to this, it must also be borne in mind that when it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so that he may have opportunity of explanation.”

There was no need for Counsel to refer me to Reid v Kerr. The rule in Browne v Dunn has been long accepted in a number of Papua New Guinea cases: See The State v Ogadi Minjipa [1977] PNGLR 293 and The State v Manasseh Voeto [1978] PNGLR 119.

Counsel for the accused referred to several passages relating to voluntariness which are discussed by Chalmers, Weisbrot and Andrew pp 221-222. These are as follows:

“An inducement may take many forms including fear of prejudice or hope of advantage exercised by or held out by the person in authority. Untrue representations made to an accused person as well as threats and promise held out to him by persons in authority are well within the principle and rules of common law and are applicable and appropriate to the circumstances of Papua New Guinea at this time (see State v August Toiamia [1978] No 145.”

The issue of voluntariness is discussed in another case that:

“Whilst a so-called inducement may be so vague that no reasonable man would be influenced by them, one must remember that not all accused are reasonable men or women and may be ignorant and terrified by the predicament in which they find themselves.” (see R v Joseph Kom [1967-68] PNGLR 265.)

A passage by Brandies J in the United States case of Wan v United States (1924) 266 (US) at 1 is also quoted on p 221 of Chalmers and it says:

“The requisite of voluntariness are not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion and whether the compulsion was applied is a judicial proceeding or otherwise.”

It is therefore clear from the above passages what factors or circumstances are to be taken into account in determining voluntariness.

With regard to the failure by the accused to inform the Public Solicitor (when the accused spoke to him by telephone) that his interrogators, Constables Lufaova and Eki Jacob, were threatening him with a gun, Counsel for the accused submitted that failure of the accused to complain when given the opportunity that a confession is being obtained by force, threats, intimidation etc does not necessarily outweigh other factors suggesting the confession was so obtained and in this regard he relies on R v Kar Moro and 16 Others (1974) No 814.

The State Prosecutor basically submitted that the issue as to voluntariness rested on which story I believed. He asked me to disbelieve the accused in view of the denial by the police as to his allegations of assault and threats with a gun and the general discrepancy between his (the accused’s) evidence and the police coupled with Dr Wick’s finding that he was uncertain as to whether the injury the accused had suffered resulted from an assault or a fall. Because of those discrepancies the State Prosecutor submits that I should, in the exercise of my discretion, admit the Record of Interview into evidence.

The standard of proof of voluntariness of a confession is proof beyond reasonable doubt and the onus is on the State to discharge that. This is clearly settled in the earlier cases of Wendo & Ors v R [1963] P&NGLR 242 and the State v Allan Woila [1978] PNGLR 99.

I have considered all the evidence before me on the issue of voluntariness in light of the authorities I have referred to above including the rule in Browne v Dunn as adopted and applied by the National Court is Ogadi Minjipa’s case and a year later in Manasseh Voeto’s case and I find that the confessions and admissions were not voluntary as they were induced by assault or violence and threats of further violence. The prosecution has not proved beyond reasonable doubt that the confession was voluntary. I reject the Record of Interview accordingly.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.