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State v Maurup [1991] PGNC 25; N1033 (18 December 1991)

Unreported National Court Decisions

N1033

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
ANDREW MAURUP

Wewak

Doherty J
12 December 1991
16-18 December 1991

OBJECTION TO TENDER OF A RECORD OF INTERVIEW BETWEEN POLICE AND ACCUSED - compliance Constitution - what is an “Arrest.”

THE DEFENDANT OBJECTED TO THE TENDER OF A RECORD OF INTERVIEW ON THE GROUNDS THAT - (1) it was involuntary and (2) his arrest was effected in breach of his Constitutional Rights.

Held:

1. ـ T60; There was no evidence to support the allegation of involuntariness.

2. &㺼 “#8220;ArresArrest” is the deprivation of a persons liberty and “Arrest”#8221; in practical terms must be distinguished from the g of formation under District Court Act Ch. 40 or the the readireading of a Charge at the police station.

3. ټ&#&60; 0;8220;Arrestrrest” in practical terms is effected when a person is prevented from going about his own business,her trrestegal or not.

Cases Cited:

State -v- Songke Mai SCRi SCR No. No. 5 of 5 of 1988 P.N.G.L.R. 56

Counsel:

J. Wala for the State

M. Gene for the Defence

DECISION ON ADMISSION OF RECORD OF INTERVIEW

DOHERTY J: The defendant objects e tehe tender of Record of Interview on several grounds. Basically these are on two head of:-

1. ; I60olunvariness of answernswers given in the course of a d of interview with the pole police; and

2. ;ټ B60; Breach each of Constitutional Rights by violence incourshis a.

Defence ence CounsCounsel doel does not stress the first ground and after hearing evidence adduced and I agree with him on this course of action police witness Constable Bble Bona indicated that the Record of Interview took place peacefully without violence, bribes, threats or any other inducement and that the defendant understood what the proceedings were about.

The defendant himself said he was “a bit scared” and refers to “threatening.” When asked to explain this he said Constable Bona asked “why do you not sign the Record of Interview” but there is no evidence or indication that the question was accompanied by any threat or gesture indicative of a threat. Other than that both defendant and the police witness say that they were sitting and talking and the defendant says they “were a bit alright.” I cannot on the evidence before me find that the Record of Interview was involuntary.

It appeared to me that the defendant was changing his stance in the course of his evidence particularly when questioned on the signing of the Record of Interview. This has led me to wonder if he understood fully the allegations he made through his Counsel or whether he was changing his story as he also denied making any statement in the District Court under S.96 of the District Court Act Ch. 40 when one is clearly on the record.

I consider whether the Record of Interview is signed or not is, in the case before me, not relevant as he has not challenged the content and having found there was no compulsion I do not uphold the defence submission on this ground.

I further find no evidence from the defendant to support the allegation make in opening remarks that treatment at the time of his arrest operated on his mind or was a cause of answering the questions during the Record of Interview. He does not say so himself and clearly he asked to be released or for bail and discussed matters with the police officer. All this indicated to me an ability to communicate with the police and do not indicate a fear of them.

SECOND GROUND

The second ground is based on S.57 of the Constitution and the defendant asks that the Court exercise its power to exclude the Record of Interview on the basis of violence used towards the defendant at the time of his arrest.

The defendant was arrested by Senior Sergeant Japeli at the village of his in-law on the 10th of September 1991. The defendant makes no allegations against the Sergeant Japeli and speaks well of him. He however makes allegations against the Reserve Constable who accompanied Japele. He and his witness conflict on the evidence as to the assault and how many reserve constables were present at the time of the arrest. However both their sets of evidence indicate blows being rendered to the defendant. Japele did not see all that was happening. He had his back, to the vehicle that the defendant was being put into.

It appears to me from the facts the defendant was roughly handled, pushed and shoved into the vehicle. I find this as a fact and as a result he suffered some injury to his face. I find there was no residual disability and in the defendant’s own words it was “a bit alright after a few days”.

I find as a fact that the defendant was arrested at the home of his relative, Umba. Mr Gene seems to say he was arrested later that is at the police station. Arrest is provided for in the Arrest Act and S.3 of the Act provides that a policeman may, without warrant, arrest a person whom he believes on reasonable grounds has committed an offence. Clearly Japele had received a report naming the defendant as a person who had committed a rape and had seen the physical condition of the prosecutrix. He decided to proceed to make the arrest. A person is arrested when they are deprived of their liberty for whatever cause. The meanings of “arrest” and “detain” were considered in State -v- Songke Mai SCR NO. 5 of [1988] PNGLR 56. The fact that a person is not informed of the charge for which he was arrested or that they were no reasonable grounds under S.3 of the Arrest Act Ch. 339 for effecting arrest does not alter the fact that a person is, for practical purposes, “arrested”. What that raises is whether the arrest was lawful or wrongful. Hence the provisions in S.26 of the Arrest Act Ch. 339 and the civil remedy for wrongful imprisonment or breach of S.42(1) of the Constitution that are available to persons if they have been arrested or deprived of their liberty without legal cause.

There appears to be a misapprehension on the part of some policemen and Counsel that a person is not actually “arrested” until a charge is read to them at the police station. This is not the case. Once a person is taken by the elbow or told “come with me” or “stay here” or prevented from continuing to go about his business he is arrested in real terms. Whether that arrest is legal is another matter.

Once he is arrested he must be brought without delay before a court (Constitution S.42(3)) and this is usually done by way of laying an information under S.28 of District Court Act Ch. 40. The laying of an information is not the time of “arrest” and should not be confused with “arrest.”

I find on the facts before me that they were reasonable grounds for the arrest of the defendant based on the information and condition of the victim and I find that the defendant was informed of the reason of his arrest at the time he was arrested. I find this from the evidence of Senior Sergeant Japele and from the defendant’s own words. I further find that he was taken to Arohimi and confronted with the prosecutrix and he was under no doubt as to why he was being arrested. There is no statutory or special legal formula for the implementation of S.42(2)(a) of the Constitution. This provides that a person arrested or detained shall be informed promptly in a language he understands for the reasons of his arrest and any charge against him. It appears to me that the intention of the provision is that a person understands and knows why he is arrested. This must be conveyed to him in a language that leaves him understanding the reason for his arrest. It does not have to be conveyed to him in the precise words and terms of the Criminal Code or the Summary Offences Act or some other legislation. Clearly from the defendant’s own evidence he understood fully why he had been arrested. He said in evidence concerning the police “they asked me about the trouble and I said yes I understand.:”

Having found that the defendant was legally arrested and informed this cannot constitute a breach of the Constitution which would permit the defendant to rely on S.57 of the Constitution and prevent the Record of Interview being tendered to this Court.

This then leaves the question if the “man-handling” constitutes a breach of the defendant’s Constitutional rights which would enable this Court to preclude his Record of Interview.

(The Court then considered questions of fact and ruled against the submission and admitted the record of interview).

Lawyer for the State - The Public Prosecutor

Lawyer for the Defence - The Public Solicitor