[1973] PNGLR 1

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

AIVEI IEME AND ANOTHER

Port Moresby
Prentice J

25 August 1972

CRIMINAL LAW - Evidence - Confession - Admissibility - Confession communicated through chain of interpreters - Recorded in English only - Whether hearsay.

EVIDENCE - Confession - Admissibility - Confession communicated through chain of interpreters - Recorded in English - Whether hearsay.

On a trial on an indictment for unlawful killing, evidence was led of a confessional statement. The accused was interviewed by a police inspector whose questions asked in pidgin English were interpreted by a constable into police motu, the language understood by the accused. The accused’s answers in police motu were interpreted into pidgin English by the interpreter. The police inspector recorded the interview in English. At the conclusion of the interview the English typescript was read through in pidgin English translation, which was interpreted into police motu. The accused was asked in this fashion whether it was an accurate record, and his wishes as to any alteration. He was then invited to sign the record of interview, which he did.

Objection having been taken to the admissibility of the statement on the ground of hearsay.

Held

(1)      The statement was admissible.

(2)      The fact that the interview was in police motu a lingua franca of Papua New Guinea which was capable of being written, did not mean that it must be recorded in that language as this would greatly hamper the investigation of crime and recording of evidence.

Gaio v. The Queen (1960), 104 C.L.R. 419; R. v. Fajkovic, [1970] V.R. 566 and R. v. Zema and Jeanes, [1970] V.R. 568 referred to.

Objection to Evidence

During the course of a trial for unlawful killing evidence was given that a typed record of interview in English had been obtained by use of interpreters using police motu, translated to pidgin, translated to English. A tender of the record of interview was objected to and the following ruling made.

Counsel

Ryan, for the Crown.
Luke (with him McDermott), for the defendant.

25 August 1972

PRENTICE J: The accused are charged with unlawful killing. Following a stoning incident at Rabia settlement, the accused Mumu Muri was interviewed by Inspector Hodder in the presence of Constable Bora (interpreting) and other police. The procedure followed was that the inspector made a typed record in English of the conversation he had with the accused, including certain cautions given. The inspector spoke in pidgin the questions he had typed in English; and his questions were translated by Bora into police motu, the language understood by the accused. The latter’s answers in police motu were translated by Bora into pidgin. Inspector Hodder then turned the pidgin into English for the record. At the conclusion of the interview, the English typed script was read through in pidgin translation, which was turned to police motu. The accused was in this fashion asked whether it was an accurate record, and his wishes as to addition or subtractions. He was then invited to sign the record of interview, which he did. A tender is made of the record of interview.

Strictly the record could not have been tendered at this stage, as the accuracy of the police motu translation had not then been spoken to. In any event the tender was objected to, not on this ground, but as being hearsay. It was submitted that where confessional material was obtained in a lingua franca of Papua New Guinea which was capable of being written, it should have been recorded in that language. It was urged that in urbanized areas of Papua in 1972, such a confession should be admitted only if recorded in the language of the accused’s usage. To allow its admission in any other form was expediency; that should not be allowed. I was referred to a decision of the Chief Justice of last Thursday, 17th August, in which he rejected, though with doubt, a confession obtained by Inspector Hodder in pidgin and recorded by him in English. His Honour had regard to an instruction of the U.K. Home Office to police officers, appearing in noted form in 1964 Criminal Law Review, which directed that a statement obtained from a foreigner should be recorded in the foreigner’s own language.

The position as to interpreted confessional statements was settled for Papua New Guinea by Gaio’s case in 1960[i]1, in which a statement received through a chain of interpreters, was held not to be hearsay from the mouth of the last interpreter, but the very statement of the original speaker communicated through the interpreters as by a telephone connection. This decision has been followed in many thousands of cases. It has always been the practice to use as interpreters, men or policemen, who are usually themselves neither literate, nor trained in detection and the recording of evidence. It would probably be still true to say that the vast majority of the languages of Papua New Guinea (estimated as high as 600 in number), have never been reduced to writing. The effect of ruling in the way sought, would greatly hamper the investigation and recording of evidence in the towns themselves. It has been a matter of public comment that few of the officers and men of the constabulary for example, speak and ex fortiori write, police motu. The presentation of verbal evidence in the form actually received from the accused, would probably be rendered impossible, in the present state of training and knowledge of the interpreters. In rural and the most remote areas the procedures would probably be impossible.

During an adjournment of the court I discussed the matter with the Chief Justice, and he brought to my attention the decisions of Gowans J., namely in R. v. Fajkovic[ii]2 and R. v. Zema and Jeanes[iii]3. In both of these cases his Honour expressly ruled that a properly accredited document, that is one acknowledged by the accused, could be admissible even if not in the language of the accused. With respect, I consider Gowans J.’s decisions correct and I propose to follow them. However, in order that the matter may be disposed of without its finality necessarily being cumbered by the appeal or reference that might follow, I propose to rule that the only other procedure that appears open to the prosecution, also be followed. I direct therefore that the typed record of interview may be put in the hands of the inspector (assuming from my observations of the number of other cases in which he is engaged that he has no independent recollection of the contents of the conversation with this accused). The inspector, refreshing his recollections from the document, may then retail in pidgin, his questions and the answers as he remembers their being given. The inspector’s pidgin will be translated for the court record by the court interpreter (and to the accused in the running, by the other court interpreter—into police motu). Opportunity will thereby be given to at least test the quality of inspector Hodder’s pidgin. Counsel will no doubt take such steps as they consider appropriate to test constable Bora’s police motu. If the case is similar to most, he will be expected to have little or no recollection of the actual content of the conversation between Hodder and the accused.

Ruled accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[i] (1960) 104 CLR. 419.
[ii] [1970] VR. 566.
[iii] [1970] VR. 568.