Papua New Guinea Law Reports - 1963
[1963] PNGLR 195
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
MINAI
Lae
Smithers J
13 June 1963
CRIMINAL LAW - Incest - Accomplice - Corroboration - Confession - Voluntariness - Admissibility of criminating questions put to, and admissions made by, accused on voire dire - Discretion of trial judge - Criminal Code SS. 7, 222, 223 - Evidence Ordinance 1934-1957 SS. 3, 6.
The daughter of the accused with whom he was alleged to have committed incest could be an accomplice.
R. v. Lewis (8 W.A.L.R. 83) considered.
In New Guinea any admission of guilt made by an accused person on the voire dire is inadmissible upon the trial.
Quaere - whether, on the voire dire the accused may be required to answer a question as to whether or not he is guilty of the offence charged.
The facts and arguments of counsel appear sufficiently from the judgment.
Counsel:
Croft, for the Crown.
Cruickshank, for the Accused.
C.A.V.
SMITHERS J:  In this case the accused is charged with having sexual intercourse with his daughter in January, 1963. The daughter, one Meburi, has sworn that her father had intercourse with her on a number of occasions including occasions in January, 1963. She also admits having had intercourse with her brother before and after the occasions on which she had intercourse with her father. She says that so far as the father is concerned she so acted by way of unwilling compliance with his demands, her compliance being achieved by threats on his part.
Mr. Cruickshank, for the accused, says that she is an accomplice and that on that account I cannot convict the accused on the uncorroborated evidence of the daughter.
Mr. Croft contends that for technical reasons the daughter is not an accomplice. He relied upon R. v. Lewis[cclii]1 and Sections 7, 222 and 223 of the Code. He also contended that she was not an accomplice because she acted under threat.
Mr. Croft’s contention so far as it was based on R. v. Lewis[ccliii]2 rested on the fact that it would be contrary to nature that she should be charged with the crime of “being a male person she did, etc.” R. v. Lewis is however irrelevant to that argument. It is probably desirable to mention that the cryptic note in Carter on the Criminal Code, p. 319, referring to R. v. Lewis and stating that only a person who could be charged with the offence as a principal is an accomplice, really and only means that a person who does not commit the crime nor aid nor abet the offender to commit it is not an accomplice. In that case it was held that women who for their own immoral business purposes lived in a brothel did not aid and abet the keeper of the brothel to carry it on and therefore were not accomplices of his in the commission of that offence.
In any event I would not act in this case on the evidence of the daughter unless it were corroborated.
Corroboration has been presented in the form of a confession made by the accused to Sup-Inspector Litchfield. Mr. Cruickshank, having objected to the admissibility of the confession on the ground that it was not voluntary, I heard evidence concerning it on the voire dire. The circumstances of the confession, some of which were contained only in the evidence of the accused, were as follows: The accused lived at Kasangari, some two days walk from Garaina. He had a son named Wi and other children as well as the daughter Meburi. The accused became aware that Wi and Meburi had departed from Kasangari to Garaina and he knew that they had so departed in connection with an allegation that he had had intercourse with Meburi. Some short time after Wi and Meburi left Kasangari, the accused received a message from the policeman at Garaina that he was to go to Garaina. The accused then went to Garaina. When the accused arrived at Garaina he was handcuffed and remained at Garaina for three nights. He then returned to Kasangari, not for the purpose of running way, but to get the local luluai. The policeman followed him to Kasangari. The handcuffs were causing pain and the luluai explained to the policeman that putting handcuffs on people like the accused was out of date, that it belonged to the age when the natives were uncivilised, and that Minai would not run away. The policeman, persuaded by these arguments, took the handcuffs off, invited the accused to accompany him to Garaina, and the accused did so.
After a week or thereabouts at the haus kalabus at Garaina, the accused went with a policeman and a doctor-boi to Morobe, a journey of some days, and from there he travelled by boat to Lae in the company of a luluai. On arrival at Lae he was taken by the luluai to a house close to the Police Station. He was there in custody. In effect, he had been in custody for some two or three weeks. At Lae Sub-Inspector Litchfield interviewed him in the presence of his daughter. The Sup-Inspector told the accused, in pidgin, that he was going to ask him some questions about allegations made by Meburi that the accused had had intercourse with her. He then said to the accused that he need not answer any of the questions unless he wished to do so. He said further that the accused might answer if he wished to do so, but anything he did say would be taken down in writing and might be used in evidence. The Sub-Inspector said, and I believe that he made it quite clear to the accused, that he was perfectly free to refrain from answering and that the accused said he understood this and that he, the Sub-Inspector, was satisfied he so understood. The following dialogue then ensued:
Sub-Inspector: “Do you have a daughter named Meburi?”
Accused: “Yes, she is my daughter.”
Sub-Inspector: “How old is she?”
Accused: “She was born before the war.”
Sub-Inspector: “Is her mother still alive?”
Accused: “Yes, she is alive and her name is Sebu.”
Sub-Inspector: “Have you ever had sexual intercourse with Meburi?”
Accused: “Yes. I heard that Meburi and her brother Wi had had sexual intercourse. I became angry and spoke to them about it and Meburi said to me, ‘Will you have intercourse with me?’ ”
Sub-Inspector: “When was this?”
Accused: “In January, 1963. Meburi said to me, ‘I want you to have sexual intercourse with me,’ and I said I could not do that, and she said it was all right. We had intercourse five times in the house and twice in the garden; I think in the afternoon each time.”
Sub-Inspector: “Did you pay her any money?”
Accuse: “No.”
Sub-Inspector: “In doing this at your village, what would the village people think?”
Accused: “It is against the law of my people.”
Sub-Inspector: “Did you know what you were doing was wrong?”
Accused: “Yes.”
Sub-Inspector: “Are Meburi and Wi true brother and sister?”
Accused: “Yes. I am the father of them both but the mother of Wi is dead.”
Sub-Inspector: “Is your wife a healthy woman?”
Accused: “She is well and works in the garden.”
After Meburi and Sub-Inspector Litchfield had given their evidence, Mr. Cruickshank made three main submissions in support of the contention that the confession was not shown to be voluntary:
(1)      The Court could not be satisfied on the issue of voluntariness in the absence of evidence of the various police who had been in custody of the accused to establish that they had not subjected the accused to any threat or made him any promise or had otherwise influenced him to confess to the Sub-Inspector.
(2)      The Court should reject the confession because it was made in answer to questions deliberately put by a police officer some three weeks after the accused had been taken into custody.
(3)      That the questions put by the Sub-Inspector were so much in the nature of a cross-examination as to prevent a finding of voluntariness.
I informed Mr. Cruickshank that as the evidence stood I would find as a fact that the Crown had established the voluntary nature of the confession but that the fact that the accused had given no evidence was a vital consideration in my arriving at that conclusion. I informed him that I realised that he might be under the impression that should his client go into the witness box, any admission on the issue of guilt might be used in evidence against him otherwise than on the issue the subject of the voire dire. I further informed him that it was my view that admissions so made would not be admissible on the issue of guilt. They would be used as going to the issue of voluntariness only. In these circumstances I considered that on that issue I was entitled to have regard to the fact that his client did not assist me on the issue of voluntariness. I indicated that in connection with his first contention, the circumstances of the Territory rendered the course adopted by the Crown reasonable and not unfair to the accused. It was scarcely reasonable that a number of policemen should be brought from Garaina and Morobe for the mere purpose of saying that they had not improperly influenced the accused when there was nothing to suggest that any impropriety had occurred. If there were any grounds to support a suggestion that there had been any such influence other than the mere absence of these policemen, the situation would be different. The accused was in a position to tell the Court if there were any such grounds.
I intimated to Mr. Cruickshank that I considered that the evidence of the Sub-Inspector, uncontradicted as it stood, satisfied me that his client understood that he was free to answer or not as he should choose, and that in the circumstances I thought that he was a willing talker.
I indicated that I did not think the case was one for the exercise of my discretion against the Crown. In this Territory circumstances frequently require that persons be taken into custody before being charged, that when the Sub-Inspector interrogated the accused he had not been charged and a decision whether to charge him or not probably depended on the result of the interrogation.
In the light of my intimation, Mr. Cruickshank called Minai as a witness. He gave evidence to the effect that no influence of any kind to induce a confession had been exercised by any police officer or other person. He gave evidence that the words of the Sub-Inspector’s warning were said to him. He did not say that he did not understand them. When pressed by his own Counsel and prosecuting Counsel to say what he thought the words meant, he made various answers which largely evaded that question and merely repeated “I no hide my talk”. This reflected the pidgin expression in the “warning” that if he chose he might “hide his talk”. From the general evidence given by the accused I have come to the conclusion that he heard the warning, understood it, but disregarded it because in effect he had come all the way from Kasangari to Lae, albeit in custody, with the intention of giving his talk and that he was anxious to give it to the first person in authority who showed a disposition to receive it. He knew that “the talk” of his daughter and son had gone to Lae and he desired that his “talk” should be there, too.
The result of this is that my finding in the light of all the evidence is that the confession was voluntary, and I convict the accused and sentence him to be imprisoned for twelve months from the day he was taken into custody.
In deciding that any admission of guilt made by the accused on the voire dire could not be used against him on the issue of his guilt, I had regard to the following considerations: A non-voluntary confession is not admissible against an accused person. This rule is firmly based in our law. It does not rest upon the view that such a confession may be untrue in the particular case, but that such evidence would be dangerous to leave to the jury. It seems to me that this must mean that a jury might fail to discount sufficiently the reliability of a non-voluntary confession.
It seems to me also that in modern times the exclusion of non-voluntary confessions also rests upon the view that it is contrary to public policy that the law should so far encourage the obtaining of evidence by force, threat, fraud or promise as to permit the confession to be received in evidence, even on terms that its weight may be affected by the existence of that force, threat or other inducement.
In this Territory that view is supported by Section 3 of the Evidence Ordinance 1951 of New Guinea and Section 68 of the Evidence and Discovery Ordinance of Papua which, with respect to confessions obtained by threats or promises, gives statutory expression to an express prohibition against the “reception” by the Court of such confessions.
For the purpose of giving effect to this prohibition, the issues of threat or no threat, promise or no promise, and of inducement or no inducement must be decided by the Judge before the evidence is “received”. These issues depend upon evidence. The evidence of the accused may be most important. To facilitate the determination of these issues in a manner fair to the accused, the procedure of the voire dire has developed. The issues ar eto be determined by the Judge and do not concern the jury. The inquiry will usually involve the giving in evidence on the voire dire of the terms of the confession in issue and if the issues are determined favourably to the accused, the jury must not be informed of them.
On such an inquiry the accused is not compellable as a witness but he is competent. Probably the voire dire must be treated as a “proceeding in connection with the offence”. See Section 6 of the Evidence Ordinance 1934.
Section 6 (3) provides that on such a proceeding the accused, if he gives evidence, may be asked any questions notwithstanding that it would tend to criminate him as to the offence charged. In England it has been decided that criminating questions may be asked on the voire dire. The stated basis is that the guilt or innocence of the accused with reference to the offence charged is relevant to the issue of inducement, either as being relevant to the probabilities or as going to credit. R. v. Hammond[ccliv]3. See however the criticism of the decision in R. v. Hammond, in R. v. Hnedish[cclv]4 and R. v. Weighill[cclvi]5. Criminal Law Review at p. 385.
It has not been authoritatively stated in any reported case that where an original confession is held to be non-voluntary and therefore inadmissable, an admission of guilt made on the voire dire can be proved as part of the prosecution’s case to the jury on the issue of guilt.
However if an admission of guilt made by the prisoner on the voire dire is admissible on the issue of guilt the prohibition in Section 3 ceases to be effective in every case in which the evidence of a guilty but truthful accused person is material on the issue of volutariness. There are of course many more of such persons to be found in this Territory than in more sophisticated places.
One may consider for illustration an accused person who had made a non-voluntary confession and against whom at the commencement of his trial there is no other evidence. Such a person ought to be discharged. Should it be however that the confession is tendered and the circumstances are such that his evidence is necessary to establish the non-voluntary nature of the confession, the accused, if guilty, must either suffer the inadmissible confession to be proved against him, or put himself in a position in which he must make another admission. His evidence may be such that it causes the Judge to find that the confession is not shown to be voluntary, but that victory would not avail the accused because it was only achieved, and it was only possible, at the price of making an admissible confession.
The results are:
(a)      That by means of obtaining a non-voluntary and inadmissible confession the police or whoever wrongfully induced the confession have brought into existence an admissible confession through the operation of the process of the Court. It is pertinent to observe that this very process is designed for the protection of the accused and if the confession is excluded as non-voluntary, that process will have established that the accused should never have been in peril and was entitled to an acquittal when the trial began.
(b)      The inducement of confessions by wrongful means is encouraged because a policeman may well and truly take the view that if the Judge, after hearing all the evidence, will not receive a confession so induced, there is a good chance that in the battle of voluntariness the accused will have been forced to make an admissible confession.
Such eventualities as these do not seem to accord with the policy upon which the non-reception of non-voluntary confessions is based, and they deny efficacy to Section 3 of the 1916 Act.
It is not an answer to say that as the accused is guilty the result is appropriate. The policy of the law in relation to the exclusion of non-voluntary confessions in this Territory at any rate is to exclude them in the case of guilty as well as of innocent persons. The policy looks beyond the immediate case. Indeed the legislature of the Territory made this clear when it repealed the provision that non-voluntary confessions might be admitted if the Judge was of opinion that the inducements which were made to the accused were not likely to have led to the making of an untrue confession. Looking as it does beyond the immediate case, the policy of Section 3 must be designed in part at least to ensure that the conduct of persons in authority is not such as to induce confessions by improper means. It reflects the view that the public is better served by the maintenance of high standards of crime investigation which exclude force and threats to get confessions, than by the conviction of any particular person by means of a confession so obtained.
To give effect to such a policy where there is a confession excluded as non-voluntary at the conclusion of a voire dire in which the accused has given evidence, one of two courses must be adopted. Either criminating questions must be excluded on the voire dire or incriminating answers given on the voire dire must be treated as inadmissible for the purposes of the issue of guilt before the jury.
It is my opinion that once the Judge has said that he is not satisfied that the original confession was voluntary, that finding extends to the answers on the voire dire.
If it cannot be said that the original confession was voluntary, then it cannot be said that the admission in the witness box is voluntary. In that case Section 3, or the Common Law in a case to which Section 3 does not extend, precludes its reception in evidence on the issue of guilt.
It is also my view that it is unfair, in the relevant sense of that expression, that answers which the accused has been compelled to make in the course of successfully contesting the issue of voluntariness should be used against him on the issue of guilt. In any case when the Judge actually finds that there has been impropriety on the part of those in authority, this unfairness is of high degree. It also seems to me that such a process causes the Court itself to be used as an instrument to create evidence against an accused. There are grave objections to this. I consider therefore that in the exercise of his discretion to exclude evidence which it would be unfair to admit, the Judge would act properly if he refused to permit the incriminating answers to be proved before the jury.
It may be that in this Territory a question to the accused as to his guilt is not admissible on the voire dire. Until the Crown has proved that a confession is voluntary, the confession may not be received in evidence. While the voire dire remains undecided the voluntariness of the original confession remains in issue. It may be said that if it is true to say that an admission of guilt forced from the accused on the voire dire is to be considered as tainted with the same quality of non-voluntariness as the confession which is in issue, should it be found to be non-voluntary, then the admission cannot be received on the issue of the voire dire. If this view is valid then unless or until the voire dire is determined in favour of the prosecution, it cannot be said that the admission sought from the accused is itself voluntary.
If in the application to the voire dire Section 3 of the 1916 Act and Section 6 (3) of the Evidence Ordinance conflict, and one has to give way, it may well be that it should be Section 6 (3). However, these matters may wait until the question is fully argued.
For the reasons set out above I intimated to Counsel for the accused that any admission made by his client on the voire dire would not be used against him on the issue of guilt.
My attention was drawn to the observations of the Chief Justice in R. v. Amo[cclvii]6. I do not read those observations as meaning that on a trial before a Judge alone every piece of evidence given on the voire dire is in evidence on the issue of guilt and may be used against the accused accordingly.
A discussion of admissibility on the issue of guilt of admissions improperly obtained but admitted by the accused on the voire dire to be true appears in R. v. Amad[cclviii]7. The learned Judge excluded the admissions made before the trial and which had been improperly obtained. There is no suggestion in that case nor any discussion of the possibility that the admissions on the voire dire could be used by the Crown independently of the admissions which had been the subject of the voire dire.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[cclii]8 W.A.L.R. 83.
[ccliii]8 W.A.L.R. 83.
[ccliv](1941) 3 ALL E.R. 318.
[cclv](1959) CAN.R. at p. 350.
[cclvi](1945) D.L.R. at p. 474.
[cclvii](1963) P. and N.G.L.R., Vol. 1, p. 22.
[cclviii](1962) V.R. 545.