Anis, The State v [1990] PNGLR 239 (12 June 1990)

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CRIMINAL LAW - Practice and procedure - Constitutional rights of persons arrested or detained - Right to contact lawyer of choice - Expression of desire to exercise rights - Unsuccessful attempt to contact lawyer �after hours� - Failure to suspend record of interview - Whether all practicable steps taken - Constitution, s 42(2)(b).

CONSTITUTIONAL LAW - Constitutional rights - Right to personal liberty Rights of persons arrested or detained - Right to contact lawyer of choice - Expression desire to exercise rights - Unsuccessful attempt to contact lawyer �after hours� - Failure to suspend record of interview Whether all practicable steps taken - Constitution, s 42(2)(b).

Section 42(2)(b) of the Constitution provides that a person who is arrested or detained shall be permitted wherever practicable to communicate without delay and in private with a lawyer of his choice.

(1)�� When an accused person is asked in a record of interview whether or not he wishes to see a lawyer and the accused says �yes� the interviewing officer must then suspend the record of interview until genuine and practicable steps have been taken to comply with s 42(2)(b).

(2)�� What are practicable steps sufficient to satisfy compliance with s 42(2)(b) will be determined by all the circumstances of a particular case including reference to the time when the accused is actually informed of his rights under s 42(2)(b), the time when he should have been so informed and the time interval in between.

(3)�� There was not sufficient compliance with s 42(2)(b) in circumstances where an attempt to contact chosen lawyer at the beginning of a record of interview was unsuccessful because made �after hours� and where the record of interview was not then suspended.

State, The v Thomddi Lamasis (Kidu CJ, SCR No 5 of 1987, 17 June 1986, unreported).

On the trial of an accused for armed robbery, the trial judge was required to rule, inter alia, on the admissibility of an unsigned record of interview which was challenged on the ground of non-compliance with s 42(2) of the Constitution.

ELLIS J.: The accused was charged with robbery in that he was alleged to have been involved in a payroll robbery at the Rakanda Plantation on 15 December 1988 when some K14,000 in cash was stolen. His acquittal arose after three evidentiary skirmishes which are dealt with here in the hope that this case may provide some guidance in future cases.

At the outset of the trial, the plantation manager�s statement was tendered by consent. For obvious reasons I do not describe in detail how the robbery was committed save to note that there were four persons who entered the building in question, two armed with shotguns and the other two with knives. This statement contained brief descriptions of each man, primarily dealing with the approximate height of each. Unfortunately, those descriptions were insufficient to enable identification of the four men who carried out this offence. It would appear, from this statement, that the robbers decamped by boat.

The wife of the plantation manager also made a statement which became exhibit B. She also recounted what occurred on this occasion and it is sufficient to observe that her statement outlined how the robbery occurred. The third statement was that of a lady whose nearby residence was entered by the robbers, shortly prior to the incident, en route to the site of the robbery.

Exhibit D was the first page of the statement of a villager who, early on 16 December 1988, learned of the robbery which occurred the previous evening. He recounted his movements on that day and indicated contact with people named Melbon and Loi. Apparently this villager went to a dance at Kabatirai village where Melbon gave him K40 and afterwards they journeyed by boat to Utuan village. In the absence of further evidence, this statement contains nothing probative against the accused. I should perhaps add that the second page of the statement contained details of conversations with the person named Melbon which would have suggested that this accused was involved in the robbery but for the fact that they were hearsay and therefore inadmissible.

Lait Anis was the first witness. However, he did not take the matter far: his evidence was confined to a conversation with the accused (in the absence of others) at Kokopo on Saturday 10 December 1988, that being the Saturday immediately prior to the Thursday on which the robbery occurred. During this conversation the accused is alleged to have disclosed a plan to rob the Rakanda Plantation the following Thursday and to attend a dance at Kabatirai village the following day. As to the first of these two proposals, there can be no doubt that the robbery was carried out on the Thursday, as indicated. Nor can it be doubted that there was a dance at Kabatirai village the following day. However, this evidence is only evidence of a plan; there was no evidence that the accused carried out this plan because there was no evidence that the accused was a participant in the robbery.

A voir dire was held on the question of whether the typed but unsigned record of the interview with the accused on 18 February 1989 should be admitted into evidence. The challenge to admissibility was based upon the provisions of s 42(2) of the Constitution. According to this document, the interview commenced at 10.30 am. I quote the first nine questions and answers from the English translation of the pidgin original:

Q2.�� I would like to introduce myself to you that my full name is Gerson and this is Martin Giram. We are attached to CID Section at Kokopo Police Station as an investigator. I am making an enquiries into an alleged Robbery which was committed at Rakanda Plantation on Thursday 15th December, 1988, between the hours of 6.30 pm and 10.30 pm. I am now going to ask you some questions about this matter. You do not have to say anything in answer to the charge but anything you do say will be taken down in writing and may be given in evidence against you. Do you understand?

Q3.�� It is a duty of police under section 42 subsection 2 of the constitutions. The Constitution of PNG says that I must now tell you about your rights. I must first tell you why I am arresting you. I am arresting you because I believe that you arranged this Arm Robbery at Rakanda Plantation. I also believe that you went with Melbon Tovutia, Loi Kubar, Steven, Augustine with the other highlander, took Melbon�s speed boat where you all went to Rakanda Plantation, held up the Manager Mr Donald Schimanski in his house with two shot guns and stole K14,184.96t cash being for the labourers payrolls. After robbing the Manager you all went into the speed boat and escaped. Do you understand this?

Q4.�� You have the rights to send a message or speak in private to a member of your family or a personal friend, or any lawyer you wish, or to the public solicitor. If you get a lawyer he may come and see you wherever you are kept and you will be allowed to talk to him about this matter. Do you understand?

Both the investigator who conducted the interview and the corroborator gave evidence. I note that no evidence was led as to why the record of interview remained unsigned.

The investigator�s oral evidence was that the accused, upon being informed of his constitutional rights, indicated that he wanted to speak to a private lawyer and named a Mr Theodore, whereupon the investigator dialled the office number of that lawyer and gave the telephone receiver to the accused before the call was answered in any way. I pause here to note that this attempt to contact Mr Theodore does not appear in the record of interview, a matter which causes me some concern in the right of the investigator�s 16 years experience with the CID. His explanation in cross-examination was that he wrote it down on his notebook. The reason advanced for the absence of the notebook, when requested, was that it was placed on the top of a car which was later driven off and when he went back to the scene his searches were unsuccessful. No reason was advanced as to why an officer recording an interview on a typewriter would suddenly opt to write in his notebook. Accordingly, my concern rose above mere uneasiness.

Notwithstanding the clear wish of the accused, as expressed in answer to question 6, and the lack of contact with Mr Theodore that Saturday morning shortly after 10.30 am, the interview proceeded.

It appears that the accused spoke with Mr Theodore the following Monday and the investigator claimed that he proceeded with the interview because the accused �elected to see a lawyer on Monday�. I would not view that answer with suspicion if the answer to question 7, as recorded, was unequivocally to that effect. It should be added that the investigator admitted he was aware, when he continued the record of interview, that the accused�s attempt to contact Mr Theodore had been unsuccessful: �the accused told me on Saturday that there was nobody in the office� being the precise answer given.

I now consider the evidence which the corroborator gave on the voir dire. When asked if he had a note book covering this incident and he replied in the affirmative, the Court, without any application being made, adjourned in order to provide the witness with the opportunity to obtain it from Kokopo. It subsequently transpired that the book to which he had been referring was his diary which contained but a summary reference to his involvement in the interview with the result that no documentary evidence was adduced to support that which did not appear in the record of interview. The corroborator acknowledged that an unsuccessful attempt was made to contact Mr Theodore on the Saturday of the interview. He recollected that the attempt occurred after the answer to question 7 although I think that his assessment is, without blame, faulty for the simple reason that if he was correct then the eighth question does not make any sense in the sequence of events as recorded in the record of interview.

It is difficult to determine with any certainty at what point the attempt to contact Mr Theodore occurred: the most likely alternatives are before question 7 or after question 8. The former alternative serves to make question 7 fits into the sequence of events but not without making question 8 seem odd: why ask where Mr Theodore works if an attempt has just been made to contact him? I therefore prefer the latter alternative. However, before leaving this issue, it is timely to observe the problems created by an incompletely record of interview. Clearly, any police officer who fails to record not only the questions and answers but also what occurs during a record of interview places himself/herself open to a subsequent challenge by the interviewee.

The corroborator affirmed the wording of question 7 and its answer, when he agreed that the accused did not speak to Mr Theodore until the Monday next following the interview. He was unable to advance any reason why the interview was not suspended after the unsuccessful attempt to contact Mr Theodore. I note with approval his answer to my questions:

�Q.�� What sort of things would cause you to suspend or stop a record of interview?

A.�� To allow the accused to get in touch with his lawyer if he wishes to or, otherwise, if he says he wants to speak with his lawyer in a couple of days I would seek his permission to continue the record of interview.

Q.�� If there is a delay in his seeing a lawyer do you think it is fair to either suspend the record of interview or ask him if he agrees to its continuation?

At the conclusion of this evidence the defence indicated that it was proposed to call the accused on the voir dire. I then informed both counsel that I was minded to reject the record of interview. However, as the State Prosecutor wished to have an opportunity to consider the authorities on s 42(2) of the Constitution, I rejected the record of interview but not without giving leave to the State to apply to re-open the voir dire prior to closing its case if desired. I also indicated that, should the admissibility of the record of interview be further ventilated, I would hear evidence from the accused on the voir dire if his counsel so wished. Due to the unavailability of the remaining witnesses and a special fixture in Lorengau on the Island of Manus the Court adjourned.

Upon the resumption of the hearing the State indicated that it no longer pressed the record of interview whereupon, with the assent of counsel, I indicated that I would nonetheless provide reasons why I was disposed to reject the record of interview thereby exposing my reasons to scrutiny and, hopefully, providing some guidance to police officers who undoubtedly often find themselves in a position where a person who has been arrested or detained wishes to speak to his or her lawyer �after hours�.

(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 of his rights under this subsection.�

Relevantly for present purposes, the provisions of s 42(2)(b) of the Constitution have been, to my researches, considered in eleven reported decisions: The State v Kwambol Embogol (N91, 1977, unreported); The State v Joseph Maino [1977] PNGLR 216; Constitutional Reference No 1 of 1977 [1977] PNGLR 362; Schliebs v Singh [1981] PNGLR 364; The State v Silih Sawi [1983] PNGLR 234; The State v Karara Peter (Kidu CJ, N488(M), 1983, unreported); The State v Thomddi Lamasis (Kidu CJ, N542, 17 June 1986, unreported); The State v Konts Kot (King AJ, N623, 22 September 1987, unreported); The State v Paro Wampa [1987] PNGLR 120; SCR No 5 of 1987; The State v Songke Mai [1988] PNGLR 56 and The State v John Koga Ivoro (Brunton J, N772, 14 September 1989, unreported).

The State v Kwambol Embogol involved an accused person whose record of interview was challenged on a number of bases. On the issue of s 42(2)(b) the trial judge considered that the rights depended upon the practicalities of the situation and indicated that he would not be minded to exclude the record of interview for that reason in those circumstances, namely, a patrol officer interviewing an accused willing to answer questions in a village environment in 1977. The record of interview was rejected, however, for a failure to comply with s 42(2)(a).

In The State v Maino, the accused, after being informed of his constitutional rights, was asked �Do you want to get a lawyer or the Public Solicitor in?� to which he replied �I know some lawyer but I don�t know their house and telephone�. The interview then proceeded despite the fact that a telephone and directory were readily available. It was held (at 219-220), in rejecting the record of interview, that �the Constitution envisages that something more practical and useful than a mere statement of rights may be called for to give effect to s 42(2) in any particular instance�. (Emphasis his Honour�s.)

Prentice Dep CJ went on to demonstrate eloquently how sufficient compliance depended upon a particular circumstance (at 220 of the reports):

�... I imagine the treatment necessary on the one hand, to accord constitutional rights to a man who had run miles across mountains axe-in-hand, to a police post, to admit to a crime with the object of securing his own and his family�s safety following a crime he said he had committed, would differ greatly on the other, from that necessary to ensure rights to a man arrested against his will who at the beginning protests his innocence.�

On 26 October 1977, the first decision of the Supreme Court on s 42(2)(b) was published as a result of the first Constitutional Reference for that year. This case focused upon the question of what should be the consequence of failure to comply with s 42(2) of the Constitution and established �discretionary rejection� as the appropriate test with the result that the trial judge must, in the exercise of that discretion, consider the particular circumstances of the case at hand.

Miles J considered the admissibility of a record of interview in Schliebs v Singh [1981] PNGLR 364, which was a case involving an appeal against conviction for possession of cannabis. I note that following passage which appears at 367 of the report of that case:

�... The appellant was perfunctorily told of a �right� to have a lawyer or friend present and immediately after this the interrogator launched into the interview. It is meaningless to talk of such a �right� if it is not properly recognised by something more than the mouthing of a formula. In addition to being told that the �right� exists, the detainee should be given a proper chance to decide whether he wants to exercise it or not and if he does, a real opportunity to exercise it in practice.�

The decision of Pratt J in The State v Silih Sawi arose in circumstances where the interview was continued after the accused had requested a lawyer. His Honour concluded his judgment as follows (at 237-238):

�I am not saying here that if a request for a lawyer is made then the record of interview must cease until a lawyer arrives. What I am saying is: that where a suspect says that he does want to see a lawyer, whether this advice under s 42(2) be given just before or just after the �usual caution�, then there must follow at least some attempt by the investigating officer to comply with the request and some discussion with the suspect about the result. In short what it comes down to is this � one must see on the record of interview or hear in the witness box that some genuine attempt has been made by the officer to comply with the request, and not, as happened in this case, evidence that the whole business was regarded as an unnecessary troublesome requirement which could be turned into a mere charade.�(Emphasis added.)

In The State v Karara Peter, Kidu CJ rejected a record of interview in circumstances where the accused was not informed of his constitutional rights. The Chief Justice likewise rejected a record of interview in The State v Thomddi Lamasis where the accused was not informed of his rights under s 42(2) of the Constitution until after question 56 in the interview.

The decision of Kapi Dep CJ in The State v Paro Wampa is authority for a number of propositions. First, that an accused person acquires rights pursuant to s 42(2) of the Constitution at the time of arrest or detention: not at the outset of a record of interview. In the case now before me the accused should have been informed of his rights when he was arrested at Panguna and not some days later when he was about to be interviewed at Kokopo. Secondly, that an offer to �communicate� at a later time mis-states the nature of the right to �communicate without delay�. Thirdly, that the duty which arises from the words �shall be permitted� is subject to the words �whenever practicable� and that what is/is not practicable is a question of fact to be determined in the circumstances of each case.

King AJ, in The State v Konts Kot, followed the decision of Kapi Dep CJ to which I have just referred and rejected the tender of a record of interview because the accused was not properly informed of his rights under s 42(2) until question 54 of the interview.

The most useful decision for present purposes is SCR No 3 of 1987; The State v Songke Mai which was heard by a five member Supreme Court Bench. Of the three questions referred by Hinchliffe J under s 18(2) of the Constitution, the third raised the same important issue as arises in the case now before me:

�3.�� When an accused person is asked in a record of interview whether or not he wishes to see a lawyer and the accused says �yes� should the interviewing officer then suspend the record of interview or is he permitted to ask another question as follows, �Do you wish to see the lawyer now or after the record of interview�?�

The Chief Justice, with whom Amet J agreed on this question, noted the expressions of disapproval by Pratt J in Silih Sawi�s case and by Kapi Dep CJ in Paro Wampa�s case of the practice of asking a person who has expressed a wish to see a lawyer whether he wants to see the lawyer straightaway or later. In answering the third question raised for consideration, the Chief Justice concluded (at 67):

�The point to be once again emphasised in that the right to communicate with a lawyer etc must be exercised in a genuine way. There should not be any attempt, veiled or otherwise, to prevent a person from exercising this right, subject to the practicalities of a given situation.�

Kapi Dep CJ specifically disapproved of a question being asked in the form �Do you wish to see the lawyer now or after the record of interview?�

Los J concurred with both the Chief Justice and the Deputy Chief Justice and considered that the interviewing officer should suspend the record of interview.

�The interviewing officer should suspend the record of interview unless he decides it is not practicable to comply with the accused person�s wish. He should not attempt to any way to defer or restrict the accused person�s wish to see a lawyer by posing a question such as �Do you wish to see the lawyer now or after the record of interview� or in any other way.�

The message from this case is a clear one and should be heeded both by police and those involved in the conduct and determination of trials. It became known when the judgment was delivered on 3 June 1988. Apparently that message had not reached Kokopo Police Station by 18 February 1989 when the interview now under consideration was conducted or, if it had, it was ignored.

Brunton AJ, as he then was, in The State v John Koga Ivoro also rejected the record of interview which preceded the accused being informed of his rights under s 42(2) of the Constitution.

I have reviewed all of the reported decisions and decisions available to me: they demonstrate that judges have persistently sought to ensure that the provisions of s 42(2) of the Constitution, which confer rights to persons upon their arrest or detention, are given practical effect and not allowed to be abrogated to the point where those rights exist on paper only.

Returning to the particular record of interview in issue, I note the sixth and seventh questions:

Following the answer to question 6 the interview should have been suspended as the decision in Songke Mai�s case clearly requires. The seventh question falls foul of the decision of the Supreme Court in that case. Further, the answer to the seventh question (even though it should not have been asked) provided a second, clear warning to the police officers involved in the interview to suspend it.

The attempt made to meet the accused�s request, namely dialling the office telephone number of the named lawyer shortly after 10.30 am on a Saturday morning and handing the telephone receiver to the accused before any answer resulted, would probably have given the accused the benefit of his constitutional rights if a conversation had resulted from that call. But to continue with the interview, knowing that no contact resulted, was clearly insufficient in my view. If trying to call a lawyer �after hours� at his office is sufficient compliance with the provisions of s 42(2)(b) then those rights will only have practical effect during �office hours�. Obviously, those who drafted the Constitution did not intend such a consequence.

The present case raises a further issue beyond Songke Mai�s case in that the supplementary oral evidence suggests that the interview was suspended while an attempt was made to contact the lawyer. Accordingly, the present case raises for consideration the question of what should have happened after the attempt to contact the lawyer of the accused�s choice was unsuccessful.

I venture to suggest two alternatives. Preferably, the interview should have been suspended until the following Monday when the lawyer should have been available to speak with the accused. In the vast majority of cases I suspect that there will be little lost by a suspension of the interview. Alternatively, at the very least, the accused should have been asked whether he wished to wait until Monday in order to speak with his lawyer or whether he was content for the interview to proceed so that he was given a clear choice, knowing his constitutional rights.

The particular circumstances of an �after hours� interview, will, in all likelihood, direct attention to the words �whenever practicable� in s 42(2)(b). Those words import a question of fact to be determined by the trial judge having regard to the circumstances of the case at hand: The State v Paro Wampa [1987] PNGLR 120 at 123. Accordingly, any police officer who proceeds with an �after hours� interview runs the risk that the court may later view differently the question of what was practicable in those circumstances.

The only potential limitation on the rights which s 42(2)(b) provides to persons arrested or detained is to be found in the inclusion of the words �whenever practicable�. In case investigating officers and their corroborators even contemplate seeking undue refuge in those words, I can think of no better warning than that provided by the joint remarks of Mason J (as he then was) and Brennan J in Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 400, as noted with approval by Los J in Songke Mai�s case at 89:

�Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished.�

Upon the resumption of the hearing, two further police officers were called. The evidence of the first was that in February 1989 he arrested the accused in Arawa and conveyed him to Panguna Police Station, that being where the officer was then stationed. It appears that a conversation occurred between the officer and the accused in which the accused is alleged to have made admissions. In his evidence in chief the officer, having recalled the contents of the conversation, indicated:

A.�� Before, when I arrest him, I caution him that he did not have to say anything but anything he did say may be used in evidence.

It was not until cross-examination that the witness first claimed that he had informed the accused of his constitutional rights. Despite the fact that the conversation occurred in an office at the police station, no written record of the conversation was taken. The witness claimed that a Chief Inspector was present during this conversation yet he was not called. Upon application by the defence, given these three matters (failure to mention constitutional rights in evidence in chief, no written record and failure to call the Chief Inspector) I rejected the evidence of this conversation. As I have earlier considered the provisions of s 42(2)(b) of the Constitution in some detail I need not elaborate upon my reasons for rejecting the evidence of the conversation which this witness alleged he had with the accused in the police station at Panguna. Apart from constitutional considerations, I am surprised that the officer did not make a contemporaneous note of the conversation and then invite the accused to sign it. Even more surprising is that an officer as senior as Chief Inspector would not either tell the officer to take such steps or to do so himself.

[His Honour then dealt, in a manner not calling for report, with the question of ownership of a watch which was raised by the evidence.]

The significance of these three aspects, namely the record of interview, the alleged oral admissions at Panguna and the ownership of the watch, cannot be underestimated as any one of them could well have been sufficient to warrant a conviction of the accused.

I would add that I am troubled, by the circumstances of this case, that police officers appear to regard s 42(2) as a cumbersome formality to be followed at the outset of the record of interview: not the right of every person which attaches upon their arrest or detention despite the constitutional wording which provides that a person who is arrested or detained shall be permitted whenever practicable to communicate without delay with certain, specified persons.

If a person is arrested in �office hours� and the interview is commenced �after hours� then it is difficult to see why that interview should not be suspended if the person arrested wishes to speak with one of the class of persons contemplated by s 42(2)(b). To merely asked what is practicable at that �after hours� time limits the accused person�s constitutional rights: consideration should also be given to what was practicable at the time of arrest when the opportunity to communicate should have been given. Any attempt to delay or defer informing an accused person of his constitutional rights so as to limit his opportunities to exercise them cannot be condoned.

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Papua New Guinea Law Reports

Anis, The State v [1990] PNGLR 239 (12 June 1990)

Papua New Guinea Law Reports - 1990