Papua New Guinea Law Reports - 1983
[1983] PNGLR 234
N429(L)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
SILIH SAWI
Lorengau
Pratt J
12-14 July 1983
CRIMINAL LAW - Evidence - Admissibility - Admissions by accused person - Request for lawyer - No genuine attempt to comply with request - Accused unfairly treated - Admissions rejected - Constitution, s. 42 (2)(b).
Section 42(2)(b) of the Constitution provides that a person who is arrested or detained shall be permitted whenever practicable to communicate without delay and in private with a lawyer of his choice ....
Held
(1)      Where a person who is arrested or detained says that he does want to see a lawyer, and whether this request is made either before or after the “usual caution”, the investigating officer must make some genuine attempt to comply with the request and to discuss the outcome with the person so detained or arrested.
(2)      Where an accused had been given the advices required under s. 42(2) and had requested a lawyer, but had not been given any opportunity to obtain one, and continued to answer questions because he believed that he had to as the interrogating officer had failed to get a lawyer for him and had failed to make any effort to see if a lawyer was available, he had been treated unfairly and a confession so obtained should in the discretion of the court be rejected.
Cases Cited
Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362.
R. v. Gelu Gaua (unreported Supreme Court judgment No. 256, 1962.)
R. v. Ginitu Ileandi and others [1967-68] P. & N.G.L.R. 496.
State, The v. Joseph Maiono [1977] P.N.G.L.R. 216.
Ruling on Voir Dire
This was a judgment given on a voir dire to determine the admissibility of a confession.
Counsel
R. Auka, for the State.
M. Miva, for the accused.
Cur. adv. vult.
14 July 1983
PRATT J: This is a judgment on the admission of a confession under voir dire.
In this judgment I accepted the test of fairness to the accused as the ultimate test rather than rely on the question of improper conduct following the decision in R v. Ginitu Ileandi and Others (pre-Independence Supreme Court) [1967-68] P. & N.G.L.R. 496 at 506, 507. This case may be found noted for example at 360 in the Criminal Law and Practice of Papua New Guinea, Andrew, Chalmers and Weisbrot (1979). However, I myself would tend to balance out a little more evenly than was done in Ginitu the matter of improper conduct alongside the question of fairness. I have always felt that in Papua New Guinea the courts have an instructional role in some respects on police conduct, and should demonstrate that a failure to observe the rules can lead to real consequences. I think this is particularly so when one looks at the provisions of s. 42 of the Constitution. Of course that aspect did not concern the court at all in Ginitu’s case. I also observe and adopt with respect the decision in R v. Gelu-Gaua (unreported judgment No. 256, 1962) that the warning must be fully appreciated. That case is noted at 362 about the third of the way down in the Andrew’s text. Reading from that notation then:
“In the case of an unsophisticated and uneducated person” (and I would pause here to interpolate that I do not think that the present accused falls into that category. Though I am not aware of his amount of education, it is clear that it is not great however, and he seems to be a man who spent much of life in his own province, but of that I am not sure) “particular care should be exercised to make him fully aware of his right to remain silent. A mere literal translation of the wording of the English form of caution would not seem to be enough — the police officer conducting an interrogation of such a person should go to some pains to advise him of his rights. Failure to do so may result in the confession being rejected as having been improperly procured, even though there is not necessarily any deliberate or intentional impropriety.”
Now as I say I think one must read those words not only as being restricted to the unsophisticated and uneducated in the literal sense, but to persons who in reality do fall within that descriptive term albeit to a lesser degree.
The main contention put forward by learned counsel for the defence as a basis for rejecting this confession in my discretion is that there was a failure by the investigating police officer properly to observe the terms of advice set forth under s. 42(2) of the Constitution which reads as follows (in part):
“A person who is arrested or detained:
...
(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);”
It has been said in The State v. Joseph Maino [1977] P.N.G.L.R. 216 in relation to this sub-section that it envisages something more practical and useful than a mere mechanical caution being administered. What that case really means, in my view, is that the conduct of the police must be such that they do not appear to be treating the s. 42(2) requirement as mere verbiage, a waste of time, a troublesome litany to be despatched with all speed. Where an accused is asked if he wants a lawyer, and replies to that query “Yes”, but the interrogator proceeds on without one further word on the matter, it is difficult to escape the conclusion that the police officer had no intention at all of allowing the suspect to speak to a lawyer before he had completed his questioning. Of course, one must also give due weight to the important word occurring in this sub-section “whenever practicable”. I shall come to that in a moment.
In this case the prosecution has not tendered the record of interview on the voir dire, I presume for the reason that I would gain no assistance on the present problem from reading it. The sequence of events was clearly this — the accused was taken to the police station after spending some days with his relatives here in Lorengau, having been brought there by the police. He then attended at the station, told it was believed he had stolen K350, he was then “given his rights”, the advice contained in s. 42(2), and upon a pause occurring, after he was asked if he wished to see a lawyer, there is no dispute that he did in fact say he wanted to see a lawyer. It is perhaps of some interest to note, particularly in the light of a reply by the accused in cross-examination during the voir dire, that his actual words were, on his version: “I can try my best to find a lawyer”. Indeed in view of the nature of those words one would think that the accused had in mind the very terms of the section: “whenever practicable”. Obviously that is not so, but I do draw attention to the accused’s reply here because of the existence of that phrase in s. 42(2). No response was made by the police officer to that request. What happened according to the evidence in the witness box was that the police officer then straightaway administered the caution (that is the normal caution met within criminal trials to the effect that he did not have to say anything unless he wanted to, etc.). There was apparently no gap and no pause after the accused had indicated that he wished to try to find a lawyer, or he wanted a lawyer.
It might well be said that the fact of a warning being given immediately after the constitutional advice would be sufficient to indicate to the accused man that he did not have to speak unless he wanted to. It therefore becomes important to ascertain what the accused’s attitude was to the police officer at this point in time. Now of course there has been no contest in this matter about the voluntariness of the confession. I am asked to exclude the confession in the exercise of my discretion and of course fairness or unfairness to the accused is the main basis upon which that discretion is exercised. What then did the accused say in the witness box when he was refused the assistance of a lawyer. He said this: “I did not want to interfere” or words to that effect. Now, it is perhaps unfortunate that this piece of evidence was not taken a little further, for it is somewhat ambiguous in its present form. Be that as it may that is the evidence I have before me. The onus of course is on the defence to establish facts which will cause me to exercise my discretion in their favour. In other words whilst the prosecution has the onus of proving that the confession is voluntary and in the final upshot it must also prove its case beyond reasonable doubt, there is an evidentiary shift of onus in that the defence have to convince me on the balance of probabilities that I should exercise my discretion to exclude the confession. Put at its lowest however, that is, the lowest degree of strength from the defence’s point of view, I am convinced that the accused thought that he must answer the questions and he must go ahead and answer the questions in the absence of a lawyer despite the statement the police officer had made, because the police officer showed quite clearly that he had no intention of following the advice that he had already given and was obliged to give under the Constitution. Had the accused been asked by the interrogator if he was prepared to answer questions as a lawyer was not readily available in Lorengau, that may well have been sufficient to permit the police officer to go ahead, because after all it may have been established on some discussion, that it was not “practicable” to use the word of the sub-section, to obtain the services of a lawyer. However the opportunity was not given. That is the crux of the whole matter. The advice was clearly a mere matter of form. I cannot make a ruling which would have the effect of reducing such an important provision in the country’s Constitution to such a state and I am satisfied that the accused was not treated fairly.
I agree that there was a certain amount of acceptance by the accused with the process when he had said he did not want to interfere. But what he was being offered is what has been called a Hobson’s choice. As the police were obviously not going to stop their questioning in order to make enquiries about the availability of a lawyer, the accused felt that he may as well give in with as much grace as he could muster.
It might also be said that as the warning was given immediately after the request for a lawyer this made it quite clear that the accused was free to speak or not to speak. But if I am to hold that such was the case, it would certainly reduce the advice given under s. 42(2) to mere ritualistic verbiage. I am also mindful of Constitutional Reference No. 1 of 1977 [1977] P.N.G.L.R. 362 referred to at 361 of Andrew’s text. I read in full from the text:
“The court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the Court. Failure to comply with the provisions of s. 42(2) of the Constitution, for that reason alone do not render subsequent admissions by an accused person necessarily inadmissible. However, the Court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s. 57 of the Constitution to exclude the admission. Upon the facts of a case, the Court may very well feel bound, as the only way to protect the accused’s rights, to reject an admission obtained in consequence of the breach.”
I am satisfied on the balance of probabilities that despite the giving of the warning, the reason why the accused felt that he had to answer these questions was the very fact that the police had failed to get a lawyer or at least failed to make any effort to see if a lawyer was available. Having made the offer he obviously had no intention of acting on it. I lay particular emphasis on that second aspect “failed to make any effort whatsoever to see whether a lawyer was available”. There is no evidence of course before me whether or not a lawyer was available or was not available in Lorengau at that time. I believe there is a person who works with the Provincial Government who is qualified, but whether or not the general population of the province are aware of his qualifications I do not know.
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. In the circumstances I find the accused was treated unfairly, that his rights under the Constitution were ignored, and that I as a Court under the Constitution must protect those rights by excluding the confession.
Ruled accordingly.
Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.
Lawyer for the accused: N. Kirriwom, Public Solicitor.