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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 77 OF 2008
THE STATE
V
LINUS REBO DAKOA
Kimbe: Cannings J
2008: 14, 16 October;
2009: 9 February
RULING
EVIDENCE – confessions and admissions – voluntariness – Evidence Act, Section 28.
EVIDENCE – confessions and admissions – whether circumstances in which confessional statement made and police interview conducted make it unfair for those statements to be admitted into evidence against an accused – discretion of trial judge to refuse to admit evidence improperly or unlawfully obtained.
CONSTITUTIONAL LAW – human rights of person arrested on suspicion of having committed an offence – meaning of arrest – right to full protection of the law – right to silence – right to be informed of rights – duty of police to bring detained person before a court "without delay" – Constitution, Sections 37(1), 42(2), 42(3).
The accused was indicted on two counts of wilful murder. At the trial, objection was taken by the defence to the admission into evidence of a confessional statement and record of interview, on two grounds: (i) the statements recorded in each document were made involuntarily (as the accused had been assaulted and shouted at by police officers) and (ii) it would be unfair to allow the statements to be admitted into evidence, as the police acted improperly and breached the accused’s human rights. The State responded by submitting that there was no good evidence to show that the accused had been assaulted or ill-treated. As to the alleged unfairness arising from improper police procedures and breach of human rights, these matters were not included in the notice of objection and ought not be considered by the court.
Held:
(1) As the accused gave evidence of being assaulted and shouted at by police officers, it is up to the State to prove beyond reasonable doubt that the statements were made voluntarily.
(2) The State proved beyond reasonable doubt that the accused was not assaulted in such a way that he was overborne when he signed the confessional statement and when he participated in the police interview and signed the record of interview.
(3) Ground 1 of the objection was dismissed.
(4) When determining an objection to admission of a confessional statement or record of interview the court is not bound by the terms of a notice of objection; particularly where human rights breaches are alleged, as the court is authorised, and may in the circumstances of a particular case be obliged, to make orders under Section 57 of the Constitution for enforcement of such rights.
(5) Here, serious human rights breaches were alleged and it was apparent from cross-examination of the police witnesses what the nature of the alleged breaches were, so it was not unfair to the State to allow those allegations to be determined on their merits, even though they were not included in the formal notice of objection.
(6) As the accused was alleging unfairness arising from the circumstances in which the statements were obtained, it is the accused who bears the onus of proving unfairness on the balance of probabilities and of convincing the trial judge that the discretion should be exercised to refuse to admit the statements into evidence.
(7) Unfairness, arising from a succession of police improprieties and human rights breaches, was proven, in that:
- (a) the accused was not informed of and afforded his right of access to a relative or friend and a lawyer immediately after his arrest and detention, contrary to Section 42(2) of the Constitution;
- (b) he was not informed of and afforded his Section 42(2) rights prior to the taking of his confessional statement;
- (c) he was in custody for 13 days before an attempt was made to inform him of his Section 42(2) rights;
- (d) the record of interview was taken without him being properly informed of and afforded his Section 42(2) rights;
- (e) he was not brought before a court after his arrest and detention, without delay, contrary to Section 42(3) of the Constitution;
- (f) he was unlawfully detained, without charge or judicial remand, for a period of at least two weeks;
- (g) his confessional statement and record of interview were obtained during the period of unlawful detention;
- (h) he was required, unfairly, to undertake a formal interview after having already signed a confessional statement.
(8) The breaches of the human rights provisions of the Constitution, as well as other aspects of improper conduct on the part of the Police, were so extensive and serious, it would be unfair to allow the accused’s admissions to be admitted in evidence.
(9) Ground 2 of the objection was upheld.
(10) The court accordingly refused to admit into evidence the confessional statement and the record of interview.
Cases cited
The following cases are cited in the judgment:
Constitutional Reference No 1 of 1977 [1977] PNGLR 362
John Alex v Martin Golu [1983] PNGLR 117
R v Kuras [1964] PNGLR 18
R v ToVarula [1973] PNGLR 140
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
Schliebs v Singh [1981] PNGLR 364
SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988-89] PNGLR 56
The State v Allan Woila [1978] PNGLR 99
The State v Anton Turik [1986] PNGLR 138
The State v David Yakuye Daniel (2005) N2869
The State v Ereman Donald Kanailom (2008) N3273
The State v Joanes Mesak (2005) N2853
The State v John Michael Awa and Others (2000) N2012
The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00
The State v Joseph Maino [1977] PNGLR 216
The State v Kevin Everitus [1985] PNGLR 109
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Kwambol Embogol (1977) N91
The State v Lucas Soroken and Others (2006) N3029
The State v Mana Turi [1986] PNGLR 221
The State v Michael Balana (2007) CR 552 of 2003
The State v Paro Wampa [1987] PNGLR 120
The State v Richard Saku (No 2) (2006) N3283
The State v Robin Erick (2006) N3023
The State v Silih Sawi [1983] PNGLR 234
The State v Simon Tanuma [1999] PNGLR 475
The State v Suk Ula (No 1) [1975] PNGLR 123
The State v Towes Minmin (2005) N2915
Uda Liki Gasika v The State [1983] PNGLR 58
Abbreviations
The following abbreviations appear in the judgment:
AJ – Acting Judge
CID – Criminal Investigation Division
Const – Constable
CR – criminal case
J – Justice
N – National Court judgment
No – number
OIC – officer-in-charge
PNGLR – Papua New Guinea Law Reports
SCR – Supreme Court Reference
Sgt – Sergeant
Snr – Senior
V – versus
VOP – village oil palm
Dates
The events referred to in this judgment occurred in 2007 unless otherwise indicated.
VOIR DIRE
During the course of a trial objection was taken to the admission into evidence of a confessional statement and a record of interview and a voir dire was held to determine whether the documents should be admitted into evidence.
Counsel
F Popeu, for the State
M W Norum, for the accused
9 February, 2009
1. CANNINGS J: The accused, Linus Rebo Dakoa, a young man from Bali Island, West New Britain, is charged with two counts of wilful murder, allegedly committed at Morokea oil palm settlement near Kimbe on Saturday 20 October 2007. The deceased persons are a mother, Maria Willie, aged 27, and her daughter, Jessica Willie, aged two years.
2. The accused has pleaded not guilty and a trial has commenced. During presentation of the State’s case, the prosecutor, Mr Popeu, tendered two documents through the police investigator, First Const Petha Yakoyagi:
3. The documents, which have been signed by the accused, contain incriminating statements admitting his involvement in the murders. Objection to their admission into evidence was taken by defence counsel, Mr Norum, on two grounds:
4. A voir dire (a hearing within the trial, pronounced ‘vwah dear’) has been held for the purposes of deciding on the objection and determining whether the documents should be admitted into evidence.
5. I have read both documents for the purposes of determining the objection, in accordance with the guidelines set out by the Supreme Court in Uda Liki Gasika v The State [1983] PNGLR 58 (also see R v ToVarula [1973] PNGLR 140).
FIRST GROUND OF OBJECTION: STATEMENTS MADE INVOLUNTARILY
The allegations
6. The accused gave sworn evidence that he was assaulted and shouted at by police officers. He said that on the morning of Saturday 20 October, when the police came to Morokea to investigate the deaths, four police officers assaulted him. He fell, and got kicked in the jaw. The one who was really rough on him was Const Peter Wende. The accused said he told the police that he was not responsible for the killings but they would not believe him. They took him to Kimbe police station, to the office of the arresting officer, First Const Yakoyagi. They told him if he did not co-operate, they would take him to the Dagi Double Bridge and shoot him with a pump-action shotgun and throw his body in the river. Constable Wende held him by the neck and kneed him in the back. The accused says he was vomiting blood and crying. That night was his first night in the police cell. Const Wende came to the cell. He was drunk and swore at him and told the other boys in the cell to kill him.
7. On Thursday 25 October the arresting officer gave him a document to sign, even though he had not written down anything. The next day he tried to give his story to the arresting officer. But on three occasions he was stopped by First Const Yakoyagi and his assistant, a female officer called Luckie. They shouted at him. They told him to stop lying. He ended up giving them a false story by signing the document they gave him. They forced him to sign it. He still told the arresting officer the story was not true. During all this time he was in pain from the assault on Saturday 20 October. He wanted to see a doctor but the police ignored him.
8. On Friday 2 November they took him to the CID office for a second interview. He tried again to give his story but again they shouted him down. He ended up signing this document too. He does not know what it contains.
9. The accused at one stage of his evidence said that the arresting officer assaulted him but later retracted that allegation. He said that he was very serious and shouted at him but did not hit him.
The police evidence
10. Four police officers gave evidence on the voir dire. Const Wende flatly denied assaulting the accused either at the crime scene or the police station. He is unaware of any police officer or any other person assaulting the accused. He says that the accused was put into the cell for his own protection as the relatives of the deceased were at the police station. The OIC of the Kimbe CID Chief Sgt Philip Sege, the arresting officer First Const Yakoyagi and the corroborator of the confessional statement and record of interview Snr Const Rhema Luckie, all denied knowledge of the accused being assaulted by police or any other person.
The rule on voluntariness
11. For a confessional statement to be admitted into evidence, it must be made voluntarily. A statement that is made involuntarily is inadmissible. Two issues immediately arise. When is a statement made involuntarily? And who has to prove it: the prosecution or the accused?
When is a statement made involuntarily?
12. A voluntary statement is one made in the exercise of a free choice to speak or to remain silent. It is an essential condition of voluntariness that the accused must appreciate that he or she is under no obligation to speak, that they are free to speak or not to speak (R v Kuras [1964] PNGLR 18).
13. An involuntarily statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means the accused was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistences or pressure, it cannot be voluntary (The State v Kwambol Embogol (1977) N91). Likewise, if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 (confessions induced by threats) of the Evidence Act, which states:
A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.
Onus of proof
14. Does the accused have to prove that the statement was not made voluntarily? Or does the prosecution have to prove that it was made voluntarily?
15. The rule operates in this way. First, the accused must adduce evidence that the balance of probabilities supports the allegation of involuntariness. If that burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible. If the burden is discharged, the onus shifts to the State to negate the allegations beyond reasonable doubt.
(As to the shifting burden of proof, see the voir dire ruling of Injia J in The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00, referred to in The State v John Michael Awa and Others (2000) N2012 and applied in The State v David Yakuye Daniel (2005) N2869 and The State v Lucas Soroken and Others (2006) N3029. As to the general principle that it is the State that must prove voluntariness beyond reasonable doubt, see The State v Allan Woila [1978] PNGLR 99 and The State v Kusap Kei Kuya [1983] PNGLR 263.)
This case
16. The accused has adduced evidence that the balance of probabilities supports the allegation of involuntariness. The claim is that he was assaulted by Const Wende and other police officers on 20 October and that when he signed the confessional statement on 26 October and the record of interview on 2 November he was shouted down and that he was in pain, intimidated and forced to sign the two documents. The evidence that he was overborne is sufficient to push the burden of proving voluntariness to the State.
17. I consider that the State has discharged that burden. The accused’s evidence of being assaulted was rather vague and lacked corroboration. No detainee who was in the cell on 20 October came forward to give evidence of what happened. There is no medical evidence to support the accused’s evidence. He changed his story in the course of his testimony, at one stage saying that First Const Yakoyagi assaulted him but then scaling down the allegation to First Const Yakoyagi shouting at him. I thought Chief Sgt Sege, Snr Const Luckie and First Const Yakoyagi gave credible evidence of their lack of knowledge of the accused being assaulted.
18. If he were assaulted on 20 October, he did not sign the confessional statement until six days later and the officer who allegedly assaulted him badly – Const Wende – was not present when he signed the statement. I accept the evidence of Snr Const Luckie and First Const Yakoyagi that they did not shout at the accused. I am satisfied that the State has proven beyond reasonable doubt that the accused was not overborne by reason of his having been assaulted, when he signed the confessional statement and when he participated in the police interview and signed the record of interview.
19. The first ground of objection is dismissed.
SECOND GROUND OF OBJECTION: UNFAIRNESS TO THE ACCUSED, FOLLOWING BREACH OF HUMAN RIGHTS AND POLICE IMPROPRIETY
The allegations
20. Mr Norum submitted that whatever the ruling on the first ground of objection, it would be unfair to allow the confessional statement and the record of interview into evidence, as the police acted improperly and breached the accused’s human rights in a number of respects. In particular:
21. The court should therefore exercise its discretion to refuse admission of the documents, Mr Norum submitted.
Are the allegations properly before the court?
22. Before dealing with the merits of the second ground of objection, I will address a preliminary issue raised by Mr Popeu. He pointed out that in the notice of objection, filed two days before the start of the trial, the only ground of objection was the first one, about Const Wende allegedly assaulting the accused and the confessional statement being obtained against the will of the accused. No mention was made of breach of human rights or constitutional rights or procedural error on the part of the police. Mr Popeu submitted that the accused should not be permitted to rely on the second ground of objection, as no notice of it was given to the State.
23. Mr Popeu has validly raised this point. There have been cases where the court has not permitted argument on unfairness issues because they were not included in a notice of objection (eg The State v Robin Erick (2006) N3023, The State v Ereman Donald Kanailom (2008) N3273, The State v Richard Saku (No 2) (2006) N3283). But there is no hard-and-fast rule that only grounds raised in a notice of objection can be considered by the court. The filing of a notice of objection to admission of a confessional statement or a record of interview is not required by the Rules of the National Court. It is a practice, and it is a good practice, that has developed over the years. But it should not be elevated to the status of pleadings in civil proceedings or even to the status of an alibi notice in criminal proceedings (which must be filed under the Criminal Practice Rules).
24. Allowing an accused to depart from the grounds of objection in a notice of objection is a matter for the discretion of the trial judge, having regard to the seriousness of the alleged unfairness and the need to see that the trial is conducted fairly from the angles of both the accused and the State. If the defence tries to ambush the prosecution by coming up with arguments and grounds of objection that the prosecution has not been alerted to or been given the chance to present evidence on, that would be unfair and the court may well exercise its discretion not to consider the objection. But I do not think that is what has happened here. It became apparent as the police witnesses were being cross-examined that the defence would be arguing that the accused’s constitutional rights were breached and that the police acted unfairly. These are very significant issues. It might be that the defence counsel did not come to appreciate their significance until the evidence on the voir dire was presented. I do not consider that the failure to include these issues in the ground of objection was deliberate. The prosecutor could not reasonably have been surprised that alleged human rights breaches would be raised, in addition to those expressly set out in the notice of objection. I therefore do not think raising them in the way they have been raised is unfair to the State.
25. There is another compelling reason these issues must be considered. The accused is entitled, under Section 37(1) of the Constitution, to the full protection of the law. One manifestation of that right is the duty of the court to ensure that he is afforded a fair trial and that he is presumed innocent until proven guilty according to law, as required by Sections 37(3) and (4) of the Constitution. If genuinely arguable issues arise about whether confessional statements or admissions have been unfairly obtained – particularly where breaches of human rights are alleged – the court should see to it that these issues are addressed and ruled on. It should, if necessary, step in, on its own initiative, and raise and determine such issues. The power, and the duty, to do so arise from Section 57 of the Constitution (John Alex v Martin Golu [1983] PNGLR 117).
26. I have therefore decided to consider the whole of the second ground of objection.
Nature of the unfairness objection
27. It is a different type of objection to the involuntariness objection in ground 1. An objection grounded on unfairness requires the court to take a broader view of all the circumstances in which the incriminating statements and admissions were made. The court makes an assessment of whether any of the accused’s human rights (his rights as an accused person set out in the Constitution) were breached; or whether there was any other impropriety in the way that the police investigated the case or dealt with the accused. The question then to ask is: given all the circumstances, in particular the extent and number of breaches of the law or instances of impropriety, would it be unfair to allow the statements to be adduced in evidence? Because voluntariness and unfairness are different types of objection, it is possible that one will fail but the other will succeed (eg The State v Suk Ula (No 1) [1975] PNGLR 123, The State v Joanes Mesak (2005) N2853, in each case an involuntariness objection failed but the unfairness objection succeeded).
28. Another difference between an involuntariness objection and an unfairness objection concerns the burden of proof and the standard of proof. With an unfairness objection, the burden of proving unfairness lies on the accused (the State does not have to prove that the police acted fairly or with propriety). The standard of proof is on the balance of probabilities, not beyond reasonable doubt (The State v Silih Sawi [1983] PNGLR 234; The State v Kevin Everitus [1985] PNGLR 109).
Findings of fact
29. The sequence of events surrounding the apprehension and detention of the accused and his signing of the confessional statement and the record of interview are largely uncontested.
30. On Saturday morning 20 October local residents discovered the bodies of the deceased and alerted the police who came to the crime scene soon afterwards. The accused was there with other people when the police arrived. One of the police officers, a crime scene specialist, Const Francis Dalman, asked the accused if he was the one responsible for the deaths. According to Const Dalman, the accused admitted it straightaway. The accused, however, denies making admissions at the crime scene to anyone. The accused had a basket. Const Dalman took possession of it, together with a bushknife that was inside it. The accused became the prime suspect and he was taken from the crime scene that morning to Kimbe police station and locked in the cell. According to Chief Sgt Sege and Const Dalman, this was for his own protection.
31. On Friday 26 October the accused signed a two-page confessional statement. It is typed, in Tok Pisin. It consists of ten questions and answers.
32. On Friday 2 November a formal interview was conducted. The record of interview, signed by the accused, is typed, in Tok Pisin. It consists of 48 questions and answers. It records the accused being formally arrested and charged by First Const Yakoyagi with two counts of wilful murder.
33. On Monday 5 November the accused was brought before the Kimbe District Court. This was the first time he was brought before any court since being taken into custody.
34. From 20 October to 5 November the accused was detained in the Kimbe police lock-up.
Determination of alleged breaches of human rights and impropriety
35. I will now address the five matters raised by Mr Norum.
1 Police asking questions at the crime scene
36. Mr Norum highlighted that Const Dalman asked the accused at the crime scene whether he was responsible for the murders, without cautioning him. This caused the accused to be frightened, confused and prone to making false admissions.
37. I do not see much force in this argument. Const Dalman admits that he did not caution the accused before he asked him if he had committed the murders. At that stage the accused was a suspect. He was not under arrest and he was not detained, at least not until he was taken away by the police. There was no obligation to caution him as to his right to remain silent or his rights under the Constitution until he was arrested or detained.
38. What the accused said in response to Const Dalman’s question is still in issue. And it is not the subject of the voir dire, which is focussed on the question of whether the confessional statement of 26 October and/or the record of interview should be admitted into evidence.
2 Not being informed of and afforded his rights under Constitution, Section 42(2)
39. Mr Norum submitted that the accused was not informed of or afforded these rights when he was taken into police custody.
40. Section 42(2) (liberty of the person) of the Constitution states:
A person who is arrested or detained—
(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place, in which he is detained,
and shall be informed immediately on his arrest or detention of his rights under this subsection.
41. Those requirements are complemented by Section 18(1) (duties of officer-in-charge of station) of the Arrest Act, which relevantly provides:
(1) Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall—
(a) immediately release the person if he considers that—
(i) the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or
(ii) there are good reasons why the arrested person should not be proceeded against for an offence; or
(iii) proceedings can be effectively taken by way of summons against the arrested person; and
(b) if he does not release the person under Paragraph (a)—take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested—
(i) has committed an offence—the nature of that offence; or
(ii) has been arrested for some other reason—that reason; and
(c) promptly inform the person arrested or cause him to be informed in language he understands of—
(i) the reason for his arrest; and
(ii) details of the charges against him; and
(iii) his right, immediately and in private—
(A) to communicate with a member of his family or a personal friend; and
(B) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid. ...
(2) The officer-in-charge of a police station shall at all times permit persons arrested or detained at the police station—
(a) whenever practicable, without delay and in private to communicate with—
(i) a member of his family or a personal friend; and
(ii) a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and
(b) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid.
42. So, whenever a person is arrested or detained, he acquires five distinct rights. He shall be:
43. A person is "arrested" when deprived totally of his personal liberty, or when his person is touched in such a way that he is made aware that he is under compulsion in relation to a criminal matter (SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988-89] PNGLR 56).
44. As soon as a person is arrested, he or she must be informed of and afforded their Section 42(2) rights. The timing is critical, as explained by Kapi DCJ in The State v Paro Wampa [1987] PNGLR 120:
The need to inform a person of his rights under this provision arises at the time he loses his liberty. ... This effectively means that before any questions are asked about a person’s participation in a crime, he is to be informed of his rights. ... The need to inform the person of his rights arises at the time of the arrest and detention and not at the time of the record of interview.
45. In the present case the accused was arrested when he was removed by the police from the crime scene on the morning of Saturday 20 October. He was taken to the police station and detained in the lock-up. He was not formally told that he was under arrest until the end of the interview, on 2 November. That was only a formality. It confirmed that he had already been arrested. For all intents and purposes – most importantly, for the purposes of assessing whether he was informed of and afforded his constitutional rights – he was arrested on 20 October. It was on that day that the five distinct rights in Section 42(2) should have been afforded to him. Were they?
46. The evidence suggests not. First Const Yakoyagi said he was not present at the crime scene or the police station on 20 October. He was not involved in the early stages of the investigation. Being a Seventh Day Adventist, he was at church on the day (a Saturday) that the accused was apprehended. He was not given the case until Friday 26 October. Snr Const Luckie was also off duty on 20 October. She heard about the murders during the weekend of 20-21 October but was not involved in the investigation until 26 October. That is when she was asked by First Const Yakoyagi to corroborate the confessional statement. Chief Sgt Sege was present at the crime scene and prepared a major incident report on his return to the police station that day. But he gave no evidence of active involvement in the investigation. The other police witnesses, Const Dalman and Const Wende, gave no evidence of explaining to the accused his Section 42(2) rights. The OIC of Kimbe police station did not give evidence. There is no evidence of details of the accused’s arrest being entered in the register of arrests under Section 18(1) (b) of the Arrest Act.
47. In these circumstances I find that the accused was not informed of his Section 42(2) rights on 20 October. That is, he was not told, clearly, why he was being detained and that he had a right to see a relative or friend and a lawyer. Furthermore, he was not told of his Section 42(2) rights, if at all, until at least 13 days later, the day of the formal interview, on 2 November.
48. In the meantime, he signed the confessional statement on 26 October. First Const Yakoyagi says that the accused volunteered to make this statement and that he was ‘cautioned’ before making the statement. First Const Yakoyagi did not explain precisely what he meant by ‘cautioning’. Does it mean notifying a suspect of his right to remain silent? Does it include informing the suspect of his Section 42(2) rights? Whatever the case, I have examined the confessional statement. There is a statement regarding the right to silence and the accused’s response, viz:
You do not have to say anything but anything you do say will be recorded down and may be given in evidence, do you understand?
Yes I do.
49. However, it mentions nothing about Section 42(2) rights.
50. I conclude that the accused was not informed of or afforded his Section 42(2) rights before he made the confessional statement.
51. The only documentary evidence that he might have been informed of his Section 42(2) rights is in the record of interview of 2 November, questions 5 and 6, which state:
Q5. CONSTITUTIONAL RIGHTS: You do have all the rights under Section 42(2) of the Constitution to send or talk in private with any member of your family, any personal friends, any lawyer of your choice or Public Solicitor. If you wish to see and talk with anyone. If you want to see and talk with any one of them, they may be able to come and see you wherever you are kept by the police, do you understand?
Ans. Yes, I do.
Q6. Do you wish to see any one of the people that I have mentioned them to you above?
Ans. Yes, I want us to carry on with our interview first. [sic]
52. The information given to the accused was not clear enough. He seems to have been given the impression that out of the family member, friends, lawyer or Public Solicitor, he had to choose one to talk to. This was misleading as he was not told that he had a right to see a lawyer, as well as a family member or friend. The police have a duty to carefully explain Section 42(2) to a person they wish to interview. It must be something "more practical and useful than a mere mechanical caution" (The State v Joseph Maino [1977] PNGLR 216; The State v Silih Sawi [1983] PNGLR 234). The person must be given a proper chance to decide whether he wants to exercise his Section 42(2) rights (Schliebs v Singh [1981] PNGLR 364). He must also be provided with the facilities to exercise those rights (The State v Towes Minmin (2005) N2915).
53. It was also not explained to the accused that he had a right to see a relative or friend and a lawyer "without delay" – i.e. immediately – and that he did not have to go ahead with the interview until after he communicated with them (The State v Paro Wampa [1987] PNGLR 120). The accused’s reply seems to have indicated ‘yes, I want to see those people, but later’. This is a confusing answer, but perhaps understandable given that he was not told that he had a right to see a relative or friend and a lawyer immediately. It shows that the police did not properly explain his rights to him.
54. Another unsatisfactory feature of the Section 42(2) caution is that it was administered after a rather intimidating introduction by First Const Yakoyagi:
Q4. I will be talking to you in regard to the incident that occurred on Saturday 20 October 2007, in the morning between 7.00 and 8.00 am at Morokea VOP, just opposite Aling. Police had received a report that you Linus Rebo Dakoa at that time after you had planned to [kill] any one of the people that normally make garden in your block. Following your plan you killed a woman namely Maria Willie and her two year old daughter Jessica Willie. Report indicates that you did use a bush knife [and] cut [and] killed them. I believe you have a fair idea and will help police. Do you understand the sole reasons Police will be questioning you?
Ans. Yes, I do.
55. A reasonable person in the position of the accused would, I consider, have been frightened, even disturbed, by such an introduction. When, in the next breath, his constitutional rights were put to him, he would not have been in the right frame of mind to consider whether he wanted to exercise them.
56. In light of the above, I conclude that, in relation to the alleged breach of Section 42(2) of the Constitution –
3 Not being brought before a court under Constitution, Section 42(3)
57. Mr Norum submitted that the police acted improperly and failed to comply with Section 42(3) of the Constitution by not bringing the accused before a court until more than two weeks after he was apprehended.
58. Section 42(3) (liberty of the person) of the Constitution states:
A person who is arrested or detained—
(a) for the purpose of being brought before a court in the execution of an order of a court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,
shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.
59. Section 42(3) confers two rights on a person who is arrested and detained. First, he must be brought before a court "without delay", i.e. immediately. Secondly he is not to be detained in custody any longer except by a court order (Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022).
60. In the present case the accused was arrested and detained on Saturday 20 October. He should have been brought before a court on the next business day after that, Monday 22 October. No good reason for not doing that was given by any of the police witnesses. It was suggested that security concerns may have been the reason but I doubt the genuineness of that claim. I take judicial notice of the fact that the Kimbe Courthouse – where both the National Court and the District Court sit – is only 100 metres from Kimbe police station. It should have been, without a great deal of effort, a simple operation to get the accused safely and securely before either court.
61. There must be very good and substantial reasons given to explain a failure to comply with Section 42(3). Section 42(4) states:
The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.
62. No good and substantial reasons have been advanced in this case. Section 42(3) was breached on 22 October and the breach continued for two weeks, until 5 November.
4 Confessional statement taken and interview conducted without charge or judicial remand
63. Mr Norum submitted that the confessional statement was taken and the police interview conducted during a period that the accused was detained without being charged or judicially remanded. He drew parallels with The State v Mana Turi [1986] PNGLR 221, in which an accused made two confessional statements soon after being detained by the police, then was detained for five days without charge or judicial remand, and then undertook a full question-and-answer interview. McDermott AJ held this amounted to impropriety:
It smacks of persistent questioning and cross-examination of an illegally detained person. It offends against the spirit of the Constitution, Section 37(1) and the letter of the Constitution, Section 42(3) (b). In the exercise of my discretion, I reject the reception of the record of interview into evidence.
64. I agree with this submission. The accused was not charged until the end of the interview on 2 November. More importantly, he was not judicially remanded until at least 5 November: there was no court order authorising his detention until then.
65. As I indicated earlier, he should have been brought before the District Court or the National Court on 22 October. That was not done. This means that he was unlawfully detained from 22 October to 5 November. It was during that period that the accused’s confessional statement and record of interview were prepared. The offence against the spirit of Constitution, Section 37(1) – that a person being detained be given the full protection of the law – and the letter of Section 42(3) (b) – the person must be brought before a court without delay – is more extensive than in Mana Turi’s case.
5 Being required to undergo a formal interview after signing confessional statement
66. Mr Norum submitted that it was unfair to submit the accused to a full interrogation, in a formal question-and-answer interview, after he had signed a confessional statement.
67. This is a valid point. It was one of the reasons that the record of interview in Mana Turi’s case was ruled inadmissible. Other cases in which the courts have disapproved of the practice of subjecting an accused to a full interview after obtaining a confessional statement include The State v Anton Turik [1986] PNGLR 138, The State v Simon Tanuma [1999] PNGLR 475 and The State v Michael Balana (2007) CR 552 of 2003.
68. In Turik the accused underwent a formal interview 18 hours after making a full confessional statement. Pratt J held that it did not matter whether the record of interview was taken voluntarily:
The point is that, in my view, it is not proper to examine and cross-examine an accused man some 18 hours or so after he has made a full confessional statement. There must be an end to the matter somewhere or other. Where the cut-off comes it is not easy to say. Each case must be looked at in the light of its own circumstances. Certainly when a second attempt to obtain information is made by the police that may certainly give a greater feeling in the mind of the accused that he has to do what the police say. ...
Either the police must be satisfied if they get a long confessional statement and leave it at that or they must avoid anything except perhaps the barest admission if they wish to pursue the matter by way of record of interview.
69. In Tanuma, Injia J held that it was "not necessary", having obtained a confessional statement, for the police "to subject the accused to another more vigorous interrogation to obtain more confessions".
70. In Balana, the police took down a confessional statement by the accused without notifying him of his right to remain silent or his Section 42(2) rights, and then took a record of interview. Lay J held that this was unfair to the accused:
The practice of having an informal chat with the accused after arrest without administering a caution, or of taking a confessional statement, then conducting the record of interview at a later date is improper. It has the danger that the accused will feel that he has committed himself to a certain version of events before he has learned of his rights and thus, when a proper caution is administered he will feel he cannot take advantage of what he then learns, rendering the caution meaningless.
71. As I indicated in The State v David Yakuye Daniel (2005) N2869 (where I allowed a record of interview to be admitted, despite it being taken after the accused signed a confessional statement) each case must be assessed on its merits. It is not intrinsically unlawful for a record of interview to follow a confessional statement. Where, however, the accused is not given his Section 42(2) rights prior to the confessional statement, it will inevitably be unfair to require him to undergo a full question-and-answer interview after that.
72. Those were the circumstances prevailing in the present case. I uphold Mr Norum’s submission that the interview was conducted improperly.
Discretion
73. Mr Norum has demonstrated that the police investigation was conducted improperly and the accused was denied his constitutional rights. The onus of proving those matters has been discharged.
74. I now have a discretion to exercise: to admit, or refuse to admit, the confessional statement and/or record of interview. I am not obliged to decide, simply because they have been obtained improperly or following a breach of the Constitution, that they are inadmissible (Constitutional Reference No 1 of 1977 [1977] PNGLR 362). I must consider the nature, seriousness and extent of the improprieties and breaches of constitutional rights, and then decide whether, in all the circumstances, it would be unfair to allow the statements to be adduced in evidence.
75. I reiterate that it has been proven that:
(a) the accused was not informed of and afforded his right of access to a relative or friend and a lawyer immediately after his arrest and detention, contrary to Section 42(2) of the Constitution;
(b) he was not informed of and afforded his Section 42(2) rights prior to the taking of his confessional statement;
(c) he was in custody for 13 days before an attempt was made to inform him of his Section 42(2) rights;
(d) the record of interview was taken without him being properly informed of and afforded his Section 42(2) rights;
(e) he was not brought before a court after his arrest and detention, without delay, contrary to Section 42(3) of the Constitution;
(f) he was unlawfully detained, without charge or judicial remand, for a period of at least two weeks;
(g) his confessional statement and record of interview were obtained during the period of unlawful detention;
(h) he was required, unfairly, to undertake a formal interview after having already signed a confessional statement.
76. Each of the above constitutes a serious instance of impropriety or breach of human rights. That this unsatisfactory state of affairs continued to operate for a period of at least two weeks while the accused was detained at the Kimbe police lock-up makes it clear that neither the confessional statement nor the record of interview should be admitted into evidence. It would be unfair to allow their admission. The breaches of the human rights provisions of the Constitution, as well as other aspects of improper conduct on the part of the Police, were so serious, extensive and ongoing, it is incumbent on the Court, in order to discharge its duty of affording the accused the full protection of the law, to exercise its discretion to refuse to admit the confessional statement and record of interview into evidence. I refuse to allow either document to be admitted into evidence.
77. The second ground of objection is upheld.
RULING
(1) Objection to the admission into evidence of the confessional statement of the accused dated 26 October 2007 and the record of interview dated 2 November 2007 on the ground of involuntariness is refused.
(2) Objection to the admission into evidence of the confessional statement of the accused dated 26 October 2007 and the record of interview dated 2 November 2007 on the ground of unfairness is upheld.
(3) Neither document shall be admitted into evidence.
Ruling accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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