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Ula, Regina v [1975] PGSC 39; [1975] PNGLR 123 (25 June 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 123 - Regina v Suk Ula

[1975] PNGLR 123

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

SUK ULA AND OTHERS

Port Moresby

Prentice SPJ

25 June 1975

EVIDENCE - Admissions - Judicial discretion to reject - Demonstration at scene of killing - No caution given - Accused not asked whether willing to go to scene - Sense of fairness offended - Evidence rejected.

Despite the occurrence of improprieties or illegalities, and despite the lack of a caution, confessional evidence may be admitted if it is established to have been given voluntarily. (Reg. v. Ginitu Ileandi & Ors. [1967-68] P. & N.G.L.R. 496 and Reg. v. John Loe [1969-70] P. & N.G.L.R. 12 followed).

During the course of the trial of four persons charged with wilful murder evidence was given of procedures of interrogation and charging of the accused lasting as late possibly as 3 a.m. on a Sunday morning. At about 8 a.m. that same morning the accused were assembled and told �we are going out to the scene of the accident to find the timber and the knife�. It appeared that the accused were not asked whether they were willing to undertake such a trip and to make a demonstration, nor were they cautioned before or after arriving at the scene. On objection to the admissibility of evidence of what happened at the scene,

Held

The proceedings of the morning (including a breach of the Judges� Rules) offended any sense of fairness to such a marked degree that any evidence of admissions allegedly made or demonstrations given by the accused ought to be rejected in the exercise of the judicial discretion.

Per curiam: This is a case where having regard to both the interests of the public in seeing that crime is fully investigated, and those of the accused that it be investigated in fairness to them, as well as to the social policies involved, the police should have proceeded with greater attention to the rights of the individual.

Interlocutory Ruling

The accused Suk Ula and three others were charged with wilful murder. Following the taking of statements from the four accused they and certain witnesses were the next morning taken to the scene of the alleged killing. On the investigating officer commencing to give evidence of what happened at the scene, objection was taken to its admissibility. The report deals only with the ruling made on this matter.

Counsel

A. M. Webb, and W. J. Karczewski, for the Crown.

A. Alpine, for the accused Suk Ula.

C. F. Wall, for the other accused.

Cur. adv. vult.

25 June 1975

PRENTICE SPJ: Following the taking of statements from the four accused, they and certain witnesses were the next morning, a Sunday, taken to the scene of the alleged killing. Upon the investigating officer commencing to give evidence of what happened at the scene, objection was taken to its admissibility.

I then asked of counsel whether evidence should be taken on a voire dire, or whether the matter should be dealt with by submissions on the evidence as given to that point. I understood both counsel to have agreed that further evidence (on the voire dire) would be inappropriate. I have now heard the submissions of counsel. Exception is taken to the evidence on the ground of its being involuntary. It is again argued that this evidence also, relates to information of a confessional nature obtained in breach of the Human Rights Act, the District Courts Act and of s. 552 of the Criminal Code. In particular it is urged that the Local Court and District Court now sit at Boroko on Sunday mornings and sometimes Sunday afternoons, and that to comply with the law�s requirements of bringing a detained person before a court �as soon as practicable� or �forthwith� � the accused should have been taken that Sunday morning not to Hisiu but to Boroko Court. Breaches of the Judges� Rules are also pointed to and I am asked in any event to exercise my discretion against receiving the evidence.

During argument Mr. Wall on the one hand made reference to a question allegedly asked of Aumbulap in a leading (and what he says was unfair) form, at the scene. Mr. Webb, on the other, countered (over Mr. Wall�s objection) by a reference to apparent failure of Waip to make any admissions at the scene. Both matters were sought to be referred to as assisting consideration of the question of voluntariness. There is of course no doubt that despite the occurrence of improprieties or illegalities, despite the lack of caution, confessional evidence may be admitted if it is established to have been given voluntarily (see Reg. v. Ginitu Ileandi & Ors.[cxlii]¹�and Reg. v. John Loe[cxliii]², both decisions of Ollerenshaw J.).

I think, in view of the foreshadowings of the disputed evidence appearing through counsels� submissions that the preferable course to have adopted would have been to have heard all the evidence and such accompanying evidence as was relevant, on a voire dire; in order that the question of voluntariness should have been decided. (I may add that reference was also made to the fact that the accused were taken to Hisiu for the purposes of the intended demonstration and questioning, in handcuffs).

I have given consideration to whether I should now at this stage direct such a voire dire to take place. I would then have the benefit of considering the actual content of the disputed evidence which could be of real assistance in coming to a conclusion as to its voluntariness. This procedure would be analogous to that often adopted, of the Court reading a challenged document on the voire dire.

However I have come to a conclusion on the question of the exercise of the judicial discretion to reject evidence, such as to render it unnecessary for me to consider the points raised (as to some of which I have already given decisions in connection with Komabe�s statement).

On this Sunday morning, somewhere about 8 a.m., following procedures of interrogation and charging that lasted as late possibly as 3 a.m., Inspector Tuka assembled the four accused and six witnesses with more than ten C.I.B. members outside the Boroko police station. He spoke to the accused saying �we are going out to the scene of the accident to find the timber and the knife�. He had told Suk Ula in the early morning when locking him up that this would be done � to which Suk had then replied �yes�. To the talk outside the police station � none of the accused said anything � but only nodded their heads. No caution was administered then � nor was one given on arrival at the scene when Tuka proceeded immediately to ask Suk to identify the scene (at this point the evidence was objected to). Though the statement by Suk the previous night had been taken through Inspector Halu in ples tok � Tuka�s talk to him at the cells and next morning outside Boroko police station was in Pidgin.

It is common practice and I think often highly desirable, for police officers investigating crime to round off investigations after statements have been taken, by asking suspects to accompany them to the scene of an alleged crime for purposes of clarification or amplification or demonstration. Such a practice can well be an insurance against the cunning of a person who has voluntarily made a confession but subsequently has second thoughts of his own, or has access to the inventiveness of others � perhaps in a corrective institution. But it is obvious that the desire to have accused give a showing or demonstration, must be hedged about by scrupulous regard to proprieties. The longer a man remains in custody, either before or after charging, the more scrupulous I think the police officers should be. There may be circumstances when such a visit may not be carried out without the permission of a court (see Reg. v. Bruce[cxliv]³).

In this case no request was made of the accused. It was not inquired as to whether they were willing to go on the trip and make any demonstration. Their choice was not expressed to them. Indeed they may well have thought positively from the circumstances that they had no option but to go. This is not to say that despite these features, both in this and other cases, further confessional material may not have been voluntarily given. No caution was given at either end. There has been a breach of the Judges� Rules, which though not having the force of law here, are still regarded by the Court from the point of view particularly of whether a discretion to reject should be exercised. I am afraid the proceedings on this Sunday morning offend my sense of fairness to a marked degree. Such conduct may well have reacted to the unfair prejudice of the accused. Though far from convinced on the material before me that any confession made at the scene was involuntary � indeed having a preliminary impression that the contrary might well have been the case � I consider this to be a case where having regard to both the interests of the public in seeing that crime is fully investigated, and those of the accused that it be investigated with fairness to them, as well as to the social policies involved, I should flag to the police the necessity that they proceed with greater attention to the rights of the individual. In the exercise of my discretion I reject the evidence as to any admissions allegedly made or demonstrations given by the accused at Hisiu on the Sunday morning concerned.

Ruled accordingly.

Solicitor for the Crown: B. W. Kidu, Crown Solicitor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

[cxlii][1967-68] P. & N.G.L.R. 496.

[cxliii][1969-70] P. & N.G.L.R. 12.

[cxliv] [1965] Q.W.N. 48.