Papua New Guinea Law Reports - 1986
[1986] PNGLR 221
N579
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MANA TURI
Wabag
McDermott AJ
15-18 October 1986
EVIDENCE - Confessions and admissions - Discretion to exclude - Unfairness to accused - Constitutional basis for exercise of discretion - Fairness and propriety of police conduct relevant - Whether Judges’ Rules applicable - Record of interview - Taken five days after two confessions and whilst uncharged and in custody - Record of interview rejected - Constitution, s 37(1), s 42(2), (3) and (4).
CRIMINAL LAW - Evidence - Confessions and admissions - Discretion to exclude - Unfairness to accused - Constitutional basis for exercise of discretion - Fairness and propriety of Police conduct relevant - Whether Judges’ Rules applicable - Record of interview - Taken five days after two confessions and whilst uncharged and in custody - Record of interview rejected - Constitution, s 37(1), s 42(2), (3) and (4).
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - “The right to the full protection of the law” - Constitution, s 37(2).
POLICE - Questioning of persons in custody - Formulation of proper conduct.
CRIMINAL LAW - Practice and procedure - Questioning of persons in custody - Formulation of proper conduct.
On 20 September an accused was detained in custody on suspicion for questioning in relation to a murder committed on 19 September. Following questioning on the day of detention the accused made a full oral and written confession. On 25 September, no charge having been laid, the accused was questioned at length by an officer who was unaware of the confessional material and a record of interview taken and signed.
On objection to the admissibility of the record of interview,
Held
(1)      In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness, regard should be had to any breach of the rights given by the Constitution, s 37(1), (the full protection of the law) and s 42(2), (3) and (4) (the rights of persons arrested or detained), judged according to the degree of seriousness or impropriety involved.
Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 372, 380, considered.
Quaere whether the Judges’ Rules 1912 are part of the underlying law of Papua New Guinea.
The State v Win Kwainfelin [1986] PNGLR 106 and The State v Turik [1986] PNGLR 138, considered.
(2)      The Judges’ Rules are to be treated as a statement about police conduct: conduct which may be investigated and considered for signs of impropriety or unfairness, and if so found, to be considered, inter alia, in the exercise of the judicial discretion to admit or reject evidence of confessions or admissions so obtained.
R v Lee (1950) 82 CLR 133 at 154 and McDermott v The King (1948) 76 CLR 501 at 511, considered.
(3)      In the circumstances the five days detention, the giving of two full confessional statements, the continued detention without charge or judicial remand followed by a full question and answer record of interview amounted to impropriety which breached the spirit and intent of the Constitution, s 37(1) and s 42(3)(b), and the record of interview should be rejected.
Formulation of the type of conduct expected of police officers in relation to obtaining evidence from persons questioned or in custody.
Cases Cited
Constitutional Reference No 1 of 1977 [1977] PNGLR 362.
McDermott v The King (1948) 76 CLR 501.
R v Amo and Amuna [1963] P&NGLR 22.
R v Gelu-Gaua (Unreported, Supreme Court judgment N256 of 1962).
R v Lee (1950) 82 CLR 133.
State, The v Anton Ames Turik [1986] PNGLR 138.
State, The v Win Kwainfelin [1986] PNGLR 106.
Voir Dire
During the course of a trial on a charge of murder, objection was taken to the tender of a record of interview on ground that it was not voluntarily obtained and on the ground of general unfairness.
Counsel
S Norum, for the State.
D Poka, for the accused.
18 October 1986
MCDERMOTT AJ: At the trial I gave short reasons for rejecting the reception of a record of interview into evidence. I now publish my reasons in full.
During the course of the evidence of the first prosecution witness, a village councillor, defence counsel indicated to me that the record of interview obtained from the accused would be objected to on the basis that it was involuntary and obtained as a result of ill-treatment. I then heard evidence on the trial generally, giving the State leave to recall any witnesses who might be necessary at the anticipated voir dire hearing if the record of interview was to be tendered later through the investigating officer.
As a result of this course I then heard the following evidence. The victim was murdered on 19 September 1985 at Aiyeletus Village, Kompiam. The village councillor contacted the police and on 20 September advised them of a number of likely suspects — “the likely troublemakers” in the village. Six young men were taken to the mission hall for the police “to check” if there was anything suspicious about them. The accused was noticed as having blood stained clothes: a headband, shorts and underpants. The six youths were then taken to Kompiam police station and placed in a cell together. At that stage they had not been arrested or charged. They were detained on suspicion for questioning. At the cells Constable Ningiga, a general duties policeman, and not in charge of the investigation, questioned the six young men as a group with the aid of the police interpreter and in the presence of the village councillor. The suspects said nothing. The village councillor then questioned them generally as a group. He spoke in the Enga language in the following terms: “In our place there is a problem, a trouble and as your councillor I want to know if anyone of you was involved because this lady comes from a place long way away and has been kind.” After he said that the accused came up to the cell door and made a very detailed admission: — he killed the woman after a struggle, he had intended to threaten her with a knife so that she would consent to his sexual advances. At the time of this conversation the police constable and interpreter were standing nearby. The constable had no idea of what was being said as he did not understand the language used. However, after the admission was made, he was immediately informed by the interpreter of what was said. The accused was then taken to an office where this admission was recorded: “He admitted it saying exactly what he told us at the cells.” The accused signed this document. It is not in evidence for reasons which will become clear.
The constable and councillor returned to the village where various things mentioned in the admission were seen to conform with what they had been told — important circumstantial evidence. All these occurred on 20 September.
In the meantime the investigator was more concerned with the return of the body and of the deceased’s family to Kainantu. This took four days. On 25 September the investigator conducted a record of interview. He neither knew of Constable Ningiga’s investigative work nor of the signed admission. That was given to him later, some days after the record of interview. Ningiga has not seen the document since.
That was the evidence on the trial at the commencement of the voir dire. I then invited defence counsel to include a further ground for objection to the record of interview, that of general unfairness, calling for the exercise of my discretion. I do not accept any of the accused’s allegations concerning threats or ill-treatment and will not reject the reception of the record of interview on the basis of involuntariness. However it is apparent that there has been grave impropriety by the police in their detention of the accused. It is clear that five days prior to the question and answer record of interview the accused had made what appears to be voluntary admissions, about which I need not make conclusive findings at this stage. It is also clear that, subject to any further investigation, there was evidence on which the accused could have been charged with an offence relating to the death of the woman. He was not. The fact that the investigator did not know what had transpired in his absence, the right hand not knowing what the left had done as it were, is beside the point in relation to the accused’s continued detention. I do not accept this as a good reason for the delay in the proper investigative and legal processes which ought to have commenced at the time the accused was detained.
This raises two considerations: — the applicability of constitutional provisions and the applicability of the “Judges’ Rules”. I will deal first with the constitutional provisions as defence counsel has relied upon the Constitution, s 42.
However another section is also relevant. The Constitution, s 37(1), says that every person has, “the right to the full protection of the law ...”. This is then amplified by the succeeding provisions of the section. Whilst the CPC report considered this section to be the equivalent of the US “due process” provision (CPC Report Ch 5, Pt 1, p 10), Frost CJ was of the view that the section dealt “with similar subject matter but not necessarily in the same terms”: Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 372. With respect I agree. The section does not particularise the bold assertion that, “Every person has the right to the full protection of the law” as is done in the Fifth Amendment, and further as the succeeding words only indicate that some particularisation follows, it appears to me that this clause can stand by itself. Indeed, those words themselves speak of “that right”, which can only mean “the full protection of the Law”. I am reinforced in this view because of the fundamental rights and freedoms of the individual set out in the “Basic Rights” of the Preamble to the Constitution, cl 5. The first listed are “... life, liberty, security of persons and the protection of the Law”. That being so, the clause means something in itself, “... especially to persons in custody or charged with offences”.
Generally speaking “To protect” means to defend or guard from injury or danger, to keep safe or to take care of. Protection then, is the state of fact of being protected. It is a concept long familiar to courts and legislators alike in providing protection of rights, property, and of persons. It has included the protection of the person from himself. The protection of the person arises because the court has long presupposed fairness and propriety in the application of the criminal process. Additionally since Independence, this is also subject to the Constitution and the underlying law. The protection is something different from what is recognised as the principles of natural justice but complementary to the Rule of Law, which is especially provided for in the Constitution, s 57(2)(c).
As “the right to the full protection of the Law” is a fundamental one, it is subsumed in any consideration of the Constitution, s 42, “rights”, particularly in this instance those applicable to persons arrested or detained, see s 42(2), (3) and (4).
Since Independence, it is the Constitution itself which provides the framework in which the rights of persons faced with the loss of liberty are determined. I am alert to the possibility of varying degrees of this infringement, as noted by Prentice Dep CJ in Constitutional Reference No l of 1977 at 380. In my view the seriousness of any breach of the rights given by s 37(1) and s 42(2), (3) and (4) can be judged according to the degree of unfairness and impropriety involved. The Constitution is a living document and ought not be fossilised by hard and fast interpretation when there can be an ever changing array of circumstances affecting “human rights”. Having said that I return to the facts before me.
What has taken place in this instance is a combination of the events canvassed by Pratt J in The State v Win Kwainfelin [1986] PNGLR 106 and The State v Anton Ames Turik [1986] PNGLR 138 ie, illegal detention and unfair questioning. This brings me to a consideration of what is known as the “Judges’ Rules”. His Honour with greater experience than I of criminal procedure in this country was “satisfied to remain with the old Rules of 1912 as being part of the underlying law dealing with the exercise of judicial discretion ...” but concedes that the 1964 Rules may now be more appropriate (at 108).
I confess to doubts about the status of the Judges’ Rules in this country, a doubt compounded by the existence of two sets of Rules. The two statements of the Rules and an explanatory circular are conveniently set out in Carter’s Criminal Law of Queensland, 6th ed (1982), at 694. There are differences of opinion on their status, in the texts. Citing R v Amo and Amuna [1963] P&NGLR 22 the authors of Cross on Evidence, 2nd Australian ed (1979), at 532 state that “with certain modifications the Judges’ Rules have been adopted”. From the judgment the modification to the Rules is that they are “adopted to the practical situation in the Territory when dealing with illiterate accused persons”. However in discussing the exercise of a discretion to reject an alleged statement Mann CJ said at 32:
“... when one refers to the Judges’ Rules the emphasis is on the conduct of the Police, it seems to be clear that the discretion to reject a statement may arise from circumstances not attributable to any conscious action of the Police, but to factors such as tiredness and lack of capacity in the accused to do justice to himself. I think that it is clear from some of the dicta, that all the circumstances are to be looked at, and from the explanation of Dixon J (as he then was) in McDermott v The King ((1948) 76 CLR 501 at 512) that the present practice is not to be regarded as depending for its origin on any legal operation of the Judges’ Rules.”
I am not sure that this supports the author’s contention.
In Criminal Law and Practice of Papua New Guinea, 2nd ed (1985), the learned authors are of the opposite view (at 224) and cite R v Gelu-Gaua (Unreported, Supreme Court judgment N256 of 1962) in support. Minogue J (as he then was) said:
“Although the Judges’ Rules do not form part of the law of the Territory (see Smith v The Queen (1957) 97 CLR 100 at 109 and 130), yet from what was said both in that case and in McDermott v The King (1948) 76 CLR 501, they may be taken into account by the trial judge in the exercise of his discretion whether or not to admit confessional evidence.”
Perhaps it is all a matter of semantics. What really is being said is that the sort of considerations which stem from the Judges’ Rules relating to police conduct are relevant considerations in this jurisdiction. It may well be that this is the meaning which Pratt J attributes to these Rules.
I have come to the conclusion that the Judges’ Rules are a statement about police conduct: conduct to be investigated and considered for signs of impropriety and unfairness, and if so found, to be considered in the exercise of the judicial discretion to admit or reject evidence of admissions so obtained. I have used the word “impropriety” advisedly as it can encompass wide ranging conduct which smacks of unfairness in the light of all the circumstances; see the judicial approach approved in R v Lee (1950) 82 CLR 133 at 154:
“It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused’s statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment Street J (as he then was) in R v Jeffries (1946) 47 SR (NSW) 284 which are quoted by O’Bryan J in the present case. His Honour said, at 312: ‘It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.’ “
See also Dixon J in McDermott v The King (1948) 76 CLR 501 at 507. This approach, in my view, is also relevant in considering whether there has been a significant breach of the Constitutional provisions to which I have referred. It is an approach consistent with the application of Constitutional Rights in a way that they “do not prejudice the merits and freedoms of others” and more particularly in the present context “the legitimate public interest,” (see generally Preamble to Constitution).
In the present case I consider the five days detention, the giving of two full confessional statements by the accused, his continued detention without charge or judicial remand and then subjecting him to a full question and answer record of interview amounts to impropriety. It smacks of persistent questioning and cross-examination of an illegally detained person. It offends against the spirit of the Constitution, s 37(1), and the letter of the Constitution, s 42(3)(b). In the exercise of my discretion, I reject the reception of the record of interview into evidence.
Because of ever increasing reliance upon confessional evidence rather than a full police investigation of a crime, the courts are continually confronted with considerations of impropriety before admitting such evidence. It is confusing and indeed unnecessary to continue to refer to the “Judges’ Rules” in this jurisdiction. The Rules of course preceded the Constitution. Now particularly in the light of the personal rights provisions of s 37 and s 42, which in my view form the basis of any consideration of impropriety, a reformulation of the type of conduct expected of police officers, in relation to obtaining evidence from persons questioned or in custody is warranted.
REFORMULATION
I therefore set out some relevant questions relating to police conduct in this area of criminal investigation. Depending upon the gravity and extent of unfavourable replies to these questions, a court may in the exercise of its discretion reject evidence of a statement or answers to questions made by a person to the police. Hopefully this reformulation will be a guide for fair and proper conduct by police in the future.
1.       Was the person then arrested or detained?
2.       Was the person then a suspect or a likely witness?
3.       Was the person spoken to in a language which he properly understands?
4.       Was the person treated with dignity?
5.       Was the person informed of the provisions of the Constitution, s 42(2)?
6.       Was the person given reasonable and adequate opportunity to exercise these rights?
7.       Did the persons make a statement or answer questions in an interview?
8.       Was the person in any way disabled by injury, illness, fatigue, alcohol or drugs at the time of making the statement or when interviewed?
9.       Was the person cautioned before such statement was made or interview took place in these terms?:
“You are not obliged to say anything unless you wish to do so. Anything you say will be taken down in writing and may later be given to the court?”
10.     Did the person understand this caution?
11.     Was a written record taken of the persons statement or interview?
12.     If the person made a statement was he asked if he wished to write it personally?
13.     Was the record taken in the language spoken by the person or in the language of an interpreter?
14.     At the conclusion of the statement or interview:
(a)      Did the person;
(i)       read the record of it, or
(ii)      was it read back to him?
(b)      Was the person asked to make any corrections or alterations?
(c)      Did the person then agree as to the correctness of the record?
15.     Does the following appear on the record:
(a)      The time, date and place where it was made; and
(b)      The caution; and
(c)      The signatures of
(i)       the person;
(ii)      the witnesses present;
(iii)     the interpreter?
16.     After the statement was given or the record of interview taken, was the person further questioned otherwise than for the purpose of:
(a)      preventing or minimising harm or loss to any person or property or the public at large; or
(b)      to clarify any ambiguity or uncertainty, in the previous statement or record of interview?
17.     If the person was further questioned for this purpose was he further cautioned before being so cautioned?
18.     If the person was shown a statement or answer made by another:
(a)      Was the person asked to reply or comment upon it?
(b)      If the person did so voluntarily was he cautioned before he replied or commented?
Note: The accused was subsequently convicted of wilful murder and sentenced to 16 years imprisonment with hard labour.
Ruled accordingly
Lawyer for State: The Public Prosecutor.
Lawyer for accused: The Public Solicitor.