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State v Pereya [2008] PGNC 144; N3494 (18 August 2008)

N3494

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 539 OF 2007

THE STATE

v

TAKIWA PEREYA

AND

CR NO 540 OF 2007

THE STATE

v

PARIAKE WALARA

Tari: Makail, AJ
2008: 18 August
: 13, 14 & 15 August

CRIMINAL LAW - Evidence - Admissions in record of interview - Grounds of objection - Involuntariness, induced by threats or bribes - Evidence Act - Section 28 - Unfairness, breach of constitutional rights - Section 42(2) - Dispute as to whether accused signed record of interview - Whether an unsigned record of interview of accused is inadmissible - Matters omitted in record of interview - No prejudice to accused - Matters can be raised again in evidence of defence - Discretion to admit - Were fairly obtained and properly recorded - Admissible when adopted by accused and no objection taken at interview.

Cases Cited:
The State -v- Bisket Uranguae Pokia [1980] PNGLR 97
The State -v- Thomas Some (1982) N366
The State -v- Goi Mubin [1990] PNGLR 99

Counsel:
Mr J. Kesan, for the State
Mr P.Kumo, for the two Accused

RULING ON VOIR DIRE

18 August, 2008

1. MAKAIL AJ: On 13 August 2008, the State presented an indictment against the two accused, Takiwa Pereya and Pariake Walara on one count of wilful murder of a female by the name of Ayai Ekatogo at Koroba in the Southern Highlands Province on 8 June 2004 contrary to section 299 of the Criminal Code.

2. On arraignment, Takiwa and Pariake denied the charge and the State was put to task to prove the charge against them.

3. On the second day of the trial on 14 August 2008, the State sought to tender the record of interview of Pariake dated 7 December 2006. The record of interview was in the Pidgin and English versions. The defence counsel, Mr Kumo objected to the tendering of the record of interview on the basis that it contained admissions by Pariake, such admissions were incriminating and Pariake did not sign it. Thus, this raised the issue of whether the record of interview was voluntarily obtained.

4. This prompted a voir dire hearing. The State called the Investigating Officer, Detective Constable Daniel Olape to verify the contents of the record of interview and also to attest to whether Pariake voluntarily participated in the interview. He was cross examined by the defence counsel.

5. The Defence also called two witnesses. The first witness was Constable Ismael Wangare and the second one was Pariake himself. Both witnesses were also cross examined by counsel for the State, Mr Kesan.

ISSUES

6. The main issue raised in the hearing is whether or not the record of interview was voluntarily obtained from the accused, Pariake. This required a closer consideration of the following specific issues:

1. Did Pariake sign the record of interview?

2. if he did, is it still inadmissible because some matters raised in the interview were omitted?

THE LAW

7. There are two grounds by which confessional statements or record of interviews can be disallowed in criminal proceedings. They are:

1. under section 28 of the Evidence Act where they have been induced by threat or promise by the person in authority such as a police investigating officer unless the contrary is shown; or

2. under the principles of fairness where the accused’s constitutional rights have been breached such as the rights guaranteed by section 42(2) of the Constitution. That is, the accused’s rights to be informed in the language he understands and to see and instruct a lawyer of his own choice, to see a family member(s) or a personal friend.

PARTIES’ SUBMISSIONS

8. For the defence, Mr Kumo submitted that the record of interview is irregular because first the accused, Pariake did not sign it and secondly, he did not sign it because the signatures of the corroborator and the interpreter in the record of interview did not match the signatures on their statements. On that basis, he submitted that it is inadmissible.

9. Mr Kesan for the State argued that the ground of objection to the admissibility of the record of interview did not fell under the grounds of voluntariness or unfairness. The objection should be dismissed.

REASONS FOR DECISION

10. I find the facts of this case fall under the ground of voluntariness of confessional statements or record of interview. I do not think that this case raises issues of unfairness arising from breaches of Pariake’s constitutional rights guaranteed by section 42(2) of the Constitution. Thus, I will consider the objection to the record of interview under the ground of voluntariness.

The first question is, did Pariake sign the record of interview?

11. The evidence of the Investigating Officer, Detective Constable Daniel Olape is relevant here. He gave a narrative detail of the process of interview of a suspect by police. He stated that he conducted the interview with Pariake at Tari Police Station on 7 December 2006 which commenced at 2:15 pm and concluded at 3:45 pm. Present at the interview were the corroborator, Thomas Levongo and interpreter, Ismael Wangara. Both men were and are current serving members of the police force at Tari Police Station.

12. He said that before he conducted the interview, he informed Pariake of his constitutional rights especially Pariake’s rights under section 42(2) of the Constitution. These rights were the right to inform him of the language that he understands and to see and instruct a lawyer of his own choice, see a member of his family or personal friend before the interview including the right to remain silent.

13. He said that he also asked Pariake which language Pariake wished to speak. He said Pariake requested to speak the Huli language. He then proceeded with the interview in pidgin but the interpreter, Ismael translated it from Pidgin to Huli.

14. All throughout the interview, the corroborator and the interpreter were present. There were no threats or bribes in any form made to Pariake. Mr Kumo for the defence suggested in cross examination that some of the matters Pariake raised with him in the interview were omitted in the record of interview like for example, in September 2006 Pariake had a fight with Ipanda and he reported Ipanda to the police.

15. Olape said that he told Pariake that, that fight with Ipanda was a different matter and not related to the investigations into the death of Ayai. There would be a separate police investigation into that matter. As a result he did not include the fight between Pariake and Ipanda in the record of interview.

16. At the end of the interview, he asked Pariake to read the record of interview but Pariake told him that he will read it later. He said that he went ahead to correct it and return and gave it to Pariake and asked Pariake if he wanted to make any changes. Pariake told him that there were no changes to be made and it should be left until the time for Court where he will read it with his lawyer.

17. He then told Pariake to sign it but as Pariake could not sign it, he made a mark on it with a "X". He subsequently translated it from Pidgin to English and also had Pariake signed it by putting a "X" mark.

18. He said that the corroborator and the interpreter also signed the record of interview in the Pidgin and the English version.

19. For the defence, the first witness, Ismael said that he was present at the interview of Pariake. He said that Olape was the investigating officer and Thomas Lovenga was the corroborator and both of them were also present at the interview. He said that after the interview, he signed the record of interview both in the Pidgin and English version.

20. When he was cross examined by Mr Kumo on the signature, he said that that was his signature. He was shown two Statements. The first Statement was dated 27 December 2006 and the second one was dated 29 December 2006. In the Statements, he was shown the signatures on each of the Statements and he said they were his signatures.

21. The evidence of the second witness, Pariake was slightly different from the evidence of Olape and Ismael. He said that he was brought to the Police Station at Tari and was interviewed by Olape in the presence of Thomas Levongo and Ismael Wangara. Thomas was sitting on a cupboard and Ismael was standing nearby when Olape interviewed him.

22. He said that Olape and Thomas were also from Koroba. He is also from Koroba and so they all speak the Huli language. He said at that time of the interview, they all spoke Huli. He said Ismael is from Kopiago and he did not interpret.

23. He said that some of the matters he raised with Olape in the interview were omitted in the record of interview. For example, he told Olape that in September 2006 he had a fight with Ipanda and he reported Ipanda to the police.

24. Finally he said that he did not sign the record of interview. Olape gave him a pen to sign but as he was illiterate he did not sign both the Pidgin and English record of interview. He said Olape held his hand with the pen but he did not write anything on the record of interview. In other words, he said that he did not write the mark "X" on the record of interview.

25. From all the evidence, I am satisfied that Pariake did sign the record of interview. I have reached this conclusion because first, whilst it is clear from the evidence that Pariake is illiterate, he held a pen which was given to him by Olape. As he was not unable to sign the record of interview, Olape assisted him to sign it by holding his hand to put the mark "X".

26. Conversely I do not believe the evidence of Olape where he said that he gave Pariake a pen, Pariake signed the record of interview by putting a "X" mark on it. I find that what actually happened was that as Pariake could not sign, Olape held the hand of Pariake and assisted him to write down the mark "X" on both the Pidgin and English versions of the record of interview.

27. This is clear from the evidence of Olape and also Pariake when they tried to described what actually happened at that time as we shall see from what Olape said: "At the end of the record of the interview, I asked him to sign it and he replied very freely by saying that he does not write so gave pen and he put "X" as his mark".

28. Pariake also confirmed that Olape gave him a pen during the interview and asked him to sign the record of interview when he said "He told me to hold onto the pen. I touched it. Nothing happened. He told me to touch the pen. I don’t know what he did".

29. Based on the evidence, I am satisfied that at the end of the day, Pariake signed the record of interview. To emphasis the point that a signed record of interview is admissible if it was obtained voluntarily, I distinguished this case from the case of The State -v- Goi Mubin [1990] PNGLR 99 where it was held that an unsigned record of interview to the extent that the accused has adopted it is admissible if fairly obtained and properly recorded.

30. In that case, the accused was charged with one count of stealing with violence and one count of receiving goods known to be stolen arising from a break and entry of a store in Bulolo on 10 August 1989. The accused challenged the admission of a record of interview which took place at the Bulolo Police Station between him and a policeman, Paul Ofoi on the basis that it was not obtained voluntarily.

31. He claimed that he was assaulted by another policeman and was surrounded by the members of the Mobile Squad when Ofoi questioned him. This was on 18 August 1989.

32. But the evidence before the Court was that the actual record of interview did not take place on 18 August 1989 but on 24 August 1989, that is some 6 days later. On that occasion, the interview was between Ofoi and the accused with another policeman, Vincent Baiyu as corroborator. The accused made no reference at all to this interview of 24 August 1989.

33. The Court found that the mistreatment of the accused which the accused had referred to was prior to the interview on 18 August 1989. The Court further found that the interview was held on 24 August 1989. The Court reached this conclusion because amongst other reasons the accused claimed that Ofoi used a book and biro to record the interview.

34. He made no reference to the interview on 24 August 1989 which was recorded by typewriter according to Ofoi. The possibility that there was only one interview recorded with a book and biro and later transcribed on a typewriter was not suggested by the lawyer for the accused nor was it suggested to the witnesses.

35. For these reasons, the Court admitted the record of interview. There was another ground of objection and that was that, the accused did not sign the record of interview because he claimed that he did not do it.

36. On this ground of objection, the Court referred to Cross on Evidence (1979) para 18.132 at 535 which states:

"An unsigned record of interview is admissible to the extent that the accused has adopted it; if part only is adopted, only that part is admissible. There is discretion to exclude unsigned records of interview as unfairly obtained."

37. The Court went on further and said that:

"It is important to bear in mind that it is the content of the interview that must be considered for admission or exclusion. Written records of what has been said by the interviewer and the defendant have become standard practice but as Phipson on Evidence, 12th ed (1976) says at par 823:

"The form of a confession is in general immaterial and if the substance of a confession be given, failure to prove the actual words will not exclude it, though it may affect its weight. It may be made either orally or in writing."

The question of the admissibility is that it was fairly obtained and, it follows from that, that it was both fairly obtained and was properly recorded. If the defendant makes an answer and the police shorten or paraphrase that answer and in doing so twist the meaning, then that answer could, in my view, be excluded and that part of the recorded interview would not be adopted by the defendant".

38. In the case of The State -v- Bisket Uranguae Pokia [1980] PNLGR 97, a ruling on a voir dire being conducted to determine the admissibility of confessional material, the Court held that the issue is one of voluntariness and not the truth or otherwise of the statement and the accused may not be questioned as to the truth of that statement as to his guilt or innocence.

39. In the end, I am satisfied that Pariake did sign the record of interview. He was assisted by Olape to sign by simply putting an "X" mark under the word "Accused" in both the Pidgin and English versions of the record of interview.

The second issue is, if Pariake did sign the record of interview, is it still inadmissible because some matters raised in the interview were omitted?

40. It is my opinion that the record of interview of Pariake is admissible evidence notwithstanding that some of matters raised at the interview were omitted. I say this because based on the judgment in the case of Bisket Uranguae Pokia (supra) the record of interview is inadmissible if it was not obtained voluntarily. This is not a case where Pariake was induced by a bribe or threaten or even beaten up during the interview. He only disputed that some of the matters he raised with Olape were omitted in the record of interview.

41. If he considers that the matters are relevant and wishes to bring them to the attention of the Court, I consider it is entirely up to him and within his power to raise them in his evidence when he is called upon to give evidence. To my mind, this is not the "end of the world" for him so to speak in respect of the matters that were omitted in the record of interview. He can still raise them when he gives his evidence.

42. And so, I consider that Pariake’s claim that the record of interview did not truly reflect or give an accurate account of the matters raised during the interview and further supported by his claim that the signatures of the corroborator and the interpreter on the record of interview in the Pidgin and English versions did not match the ones on their respective statements is without merit and misconceived.

43. I also consider that his contention that the signatures of the corroborator and the interpreter in the record of interview in the Pidgin and English versions did not match the signatures in their respective statements is an attempt to distract the attention of the Court from the main issue of whether or not the record of interview was obtained voluntarily.

44. I find that just because the signatures of the corroborator and the interpreter in the record of interview in the Pidgin and English versions do not match those in their respective statements is not a ground for the Court to refuse the record of interview. There must be actual evidence of threat or bribery present for the objection to succeed.

45. Further, I find that the fact that Pariake did not make any changes to the draft record interview showed that he had accepted the contents of the record of interview. If he wanted to include those matters like the fight between him and Ipanda in September 2006 and subsequently his report of Ipanda to the police, then he should have asked Olape to include in the draft when it was shown to him to comment or objected to the draft until those matters were included in the draft.

46. Also, as noted earlier, the Court in the case of Bisket Uranguae Pokia (supra) held that the Court is not concerned with the truth or otherwise of the statement and the accused may not be questioned as to the truth of that statement as to his guilt or innocence.

47. Thus, I find this case no different from the case of The State -v- Thomas Some (1982) N366. In that case, the accused was taken in for questioning in relation to an incident of a rape of a young woman in Lae. He was subsequently charged with the offence based on his verbal admissions to police officers at the Police Station and also admissions in his record of interview to the commission of the offence.

48. On the application of his lawyer objecting to the verbal admissions, the Court ruled that it was unsafe to rely on admissions of the accused to the police where no notes have been taken especially in a case where someone had been charged with a serious offence like rape. The Court was also asked not to rely on the record of interview after it was admitted into evidence because it contained conflicting answers.

49. This is what the Court said:

"The Record of Interview does contain some conflicting answers. The accused denies any knowledge of the offence then later makes admissions and at the end of the Record makes a general denial. However, that does not affect the fact that he answered questions without force, duress or promises. Nor does this affect the fact that that he signed the Record of Interview of his own free will. I reiterate what I said in my ruling on the Voir dire yesterday. The accused was given the opportunity to make changes in the Record of Interview read to him but he did not avail himself of that chance.

The Record of Interview contains his own admissions of taking part in the offence. Whatever the reasons for his failure in not making alterations in the Record of Interview the blame for this failure does not lie on Constable Salun or anyone else". (Emphasis is mine).

50. Thus, based on the evidence before me, Pariake was given the opportunity to make an alterations or changes to the draft record of interview. In this respect I make reference to the evidence of Olape and accept his version where he said:

"To correct the record of interview, he (Pariake) said what we stated in the record of interview was of our own choice. He will see the record of interview later. Leave it alone like this until the time for the Court case and will read it with lawyer".

51. Further, in his evidence, Pariake did not say if he accepted the contents of the draft record of interview or refused to sign it because the contents were not correct or did not truly reflect what were said during the interview. He only said that:

"The contents were not read to me by Daniel Olape. I am illiterate so he never read to me what he wrote. He told me to touch the pen. I don’t know what he did. When the file was sent to me, people read it to me from Buihebi. Some of things I said were not there like my hands were chopped and some other things were not there.

Some of the things we said in the interview; some were different. How the woman was killed or died; they asked me, some were there, some were not there. Those stories they said I burnt the woman, put plastics and sticks inside the woman, those they wrote it (sic) themselves".

52. If I were to accept Pariake’s evidence that Olape never read the record of interview, then it would mean that he never understood what was said and discussed at the interview. This would run contrary to his own evidence he gave earlier on where he said:

"Daniel Olape was asking me questions and Ismael Wangara was standing. Thomas Levonga was sitting on the cupboard looking down at us. Daniel was asking me in Huli language and Ismael Wangare was nodding his head. Ismael Wangare never asked me question in my language. He is from Kopiago and was just nodding his head.

Later on in cross examination when it was suggested that despite Ismael’s evidence that he (Ismael) was interpreting and Daniel was asking questions, Ismael was not interpreting, he said that: "I was sitting like this, Thomas was sitting on cupboard, Ismael was standing there. They and me spoke Huli. We all spoke Huli".

53. The next question in cross examination was: "Plastics, sticks and burning of private parts in the record of interview and read back to you; what do you say? Answer: "Daniel Olape told me and said these things happened to deceased, did you do that?"

54. From the above evidence, it appears to me that Pariake did not understand or appreciate that he was being interviewed; for in an interview of any suspect, an investigating officer is entitled to suggest to the suspect any possible information that may connect the suspect to the offence like in this case Olape was entitled to suggest to Pariake that the cause of the death of the deceased was because of "plastics, sticks and burning of private parts".

55. Having said that what I can clearly see from the above evidence is that first, there was the use of the Huli and Pidgin language. Secondly, this could only mean that interview was conducted in Huli and translated to Pidgin. Otherwise, why would Pariake mention two different languages being used at that time?

56. And so, I am satisfied that Pariake understood the nature and reasons for being interviewed and participated freely in the interview. It follows that I am also satisfied that Pariake voluntarily gave the answers in the record of interview.

57. In any case, if some information were missing in the record of interview like the fight with Ipanda, I find that Olape was correct when he told him that was a different matter and not related to the investigations into the death of Ayai. I further find that Olape was correct in advising him that there would be a separate police investigation into this matter. I also find that Olape was correct in not including the fight between Pariake and Ipanda in the record of interview.

58. In the end, I find that there will be no prejudice to Pariake if some of the information were omitted in the record of interview because in my view they can be raised again by Pariake when he gives his evidence at the appropriate time.

CONCLUSION

59. In the end, I am satisfied Pariake voluntarily participated in the interview on 7 December 2006, out of which the record of interview in the Pidgin and English versions were produced and the State now seek to tender as evidence against Pariake.

60. Therefore, I overrule the objection of the defence and formally admit into evidence the record of interview of Pariake Walara dated 7 December 2006 in the Pidgin and English versions as Exhibit "P3".

Ruling accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the two Accused