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State v Ave [2004] PGNC 157; N2622 (18 June 2004)

N2622

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 588 of 2000
CR 589 of 2000
&
CR 590 of 2000

THE STATE

V

JOHN AVE
HUBERT KUERE
&
MARY BUKU

Kimbe: Sevua, J
2004: 16th & 18th June

CRIMINAL LAW – Particular offences – Wilful murder – Evidence – Confessions – Admissibility – objections to – Voluntariness contested on voir dire – Whether confessions should be admitted.

Counsel:
F. Popeu for State
O. Oiveka for Accuseds

18th June 2004

SEVUA, J: The three accuseds are charged with the wilful murder of George Avusi. The State alleged that they killed the deceased at Karapi village in Hoskins on 2nd December 1999. They all pleaded not guilty.

The prosecution’s case commenced with the prosecuting counsel tendering a number of witnesses’ statements by consent of the accuseds. The documents included the record of interview conducted with the accused, Hubert Kuere on 31st January 2000, Exhibit "H" and "H1", and the record of interview conducted with the accused, Mary Buku, Exhibit "I" and "I 1" . In respect of the interview with the accused, John Ave, as the State sought to tender the record of interview, the accused objected to admissibility on the grounds of duress and assaults and threats of violence. The defence also objected to the admissibility of a confessional statement allegedly made by the accused, John Ave.

The accused, John Ave, had filed two Notices of Objection to admissibility on 23rd November 2003 and 5th April 2004.

The trial then proceeded as a voir dire and the State called three witnesses. Detective Sergeant Clement Pakou, the Investigating Officer of this case, former detective Constable Simon Negints, now employed by New Britain Palm Oil Limited, and former Reserve Constable Augustine Bauba, now retired, and residing at his village at Waluka in Hoskins.

All three witnesses denied assaults and threats against the accused, John Ave. The Court notes that two of the witnesses are no longer members of the Police Force. Former policeman, Detective Constable Simon Negints is now employed by New Britain Palm Oil Limited and former Reserve Constable Augustine Bauba is now a villager. There is no reason, in my view, for them to protect the Investigating Officer, Detective Sgt. Clement Pakou, if there were indeed assaults and threats carried out by him on the accused, John Ave, as alleged by the accused. Even then they both denied suggestions that they assaulted the accused, as I have already adverted to.

From my experience in conducting voir dires, both as a counsel and Judge I have found policemen who have lied in Court. I have experienced policemen who have beaten confessions out of accused persons and their demeanour in the witness box on sworn testimony is obvious. So what I am saying really here is that I know when a policeman lies in Court and I can tell. In the present case, I find it difficult to disbelieve Sgt. Pakou. He appeared to be a truthful witness and I do not believe that he would lie in Court. There is no motive for him to do that in this case. Similarly, I find it difficult to accept that Simon Negints and Augustine Bauba would lie in Court. Both denied assaulting and threatening the accused and I have no reason to find that they were lying in Court. As I said, they are no longer in the Royal Constabulary so there is no basis for them to defend the Police Force or Sgt. Pakou for that matter. I accept their evidence.

After listening to, and observing the demeanour of the accused and his witness, Joe Mesingi, I find their testimony unimpressive and unconvincing. The accused could hardly be heard while giving evidence. Despite several reminders by the Interpreter to speak loud for everyone to hear he maintained speaking to himself, if I could put it that way, for want of a better phrase. The accused said he was struck by Negints on the left mid forearm and also on his jaw with a piece of iron bar and suffered a cracked tooth. But why was there no laceration or cuts or other injury to the skin and bones on the left jaw? If I accept his evidence that he was badly beaten up by Negints with a piece of iron bar, I would have to also accept that he sustained serious injuries. However, that is not the case here. He claimed to have been badly assaulted by Negints with a piece of iron bar, but there are no serious injuries except a cracked tooth. This is highly incredible. I reject that kind of evidence for what its worth, bearing in mind that it is easy to make very serious allegations of brutality and impropriety against police investigators, but difficult to substantiate those allegations. This is one such case.

I am also unimpressed and unconvinced with the evidence of Joe Mesingi, as I said earlier.. He claimed to have been present all the time at the Hoskins Police Station with other relatives at the time the accused, John Ave was apprehended. However, he did not give evidence of any brutality against the accused by Sgt. Pakou and Constable Negints at Hoskins Police Station. He did not say that he saw injuries on the body of the accused there and then. However, two days later, at Kimbe Police Station, he observed injuries on the accused. This is also an incredible piece of evidence. If he was present at Hoskins Police Station when the accused was being interrogated and allegedly assaulted, he made no mention of that in his evidence. Of course, he is related to the accused, John Ave, so he has the motive to lie and protect the accused. I do no believe his evidence, and find him to be an untruthful witness.

Finally, it is obvious that some of the major allegations of assaults were never put to the State witnesses in cross examination contrary to the rule in Browne v. Dunn (1893) 6 ER 67. I can therefore correctly assume they (assaults and threats) never occurred because the prosecution witnesses have never been given the opportunity to refute those allegations or explain them in cross examination.

I am not satisfied that the confessions were obtained involuntarily and I reject the defence evidence in the voir dire.

I am satisfied that the State has proved that the confessions were obtained voluntarily, and I will admit the confessional statement and the record of interview.

Addendum:

The Confessional Statement in Pidgin dated 27th January 2000 is marked Exhibit "J".
The English Translation is marked Exhibit "K".
The Pidgin Record of Interview conducted on 27th January 2000 will be Exhibit "L".
The English Translation will be Exhibit "M".

Lawyer for State : Public Prosecutor
Lawyer for Accuseds : Public Solicitor