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State v Aihi [1979] PGNC 4; N187B (15 February 1979)

Unreported National Court Decisions

N187B

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
AVIA AIHI AND 4 OTHERS

Waigani

Saldanha J
12-15 February 1979

SECOND INTERLOCUTORY JUDGMENT

SALDANHA J: On the 15d 16th September,mber, 1978 Constable Robert Guyolo interviewed the accused Taita Itaro. Counsel for the prosecution wants this to be admitted in evidence. Counor the accused objects, not on the ground that the answers wers given by the accused were not given voluntarily but in the exercise of my discretion on the following grounds, namely, firstly that the accused was asked to speak in Pidgin and not given an option to speak in Motu, secondly that in breach of the Judges’ Rules the record of interview was not read back to her after its completion, and, thirdly, that she was not given the opportunity to communicate with a lawyer.

The first two objections can be disposed of quickly. The accused comes from Bereina where Motu and not Pidgin is spoken as a second language. But the accused had lived in Wau in New Guinea, where Pidgin is spoken as a second language, from 1973 to 1977, and learned to speak Pidgin. Constable Guyolo said accused spoke Pidgin well while Sergeant Seboma, who was present at the interview, said accused spoke Pidgin very well. The accused admits she speaks Pidgin well.

Apparently Constable Guyolo’s knowledge of Motu is not good whereas he does speak Pidgin well, and, having satisfied himself by talking to her that she spoke Pidgin he asked her if she would agree to the interview being conducted in Pidgin. The accused herself admits that the decision to speak Pidgin was one mutually agreed upon. In these circumstances I see nothing unfair or improper in Constable Guyolo conducting the interview in Pidgin.

With regard to the objection that the record of interview had not been read over to the accused Constable Guyolo says it was. Apparently Constable Guyolo has made a note of the fact that he asked the accused if she would like the record of interview read over. He says she did and accordingly he read it over. I find it difficult to believe that after asking the accused if she desired to have the record read back to her and after making a note that he asked her this question, he would have failed to read it over to her.

When cross-examined as to whether she knew what the contents of the record of interview were she said she did not. I find it difficult to believe that a competent counsel defending an accused person on a charge of wilful murder would have failed to put to her the contents of an interview which the prosecution were alleging she gave to the police. Moreover, her counsel did say that he would be submitting at a later stage that the interview had not been properly recorded. He could only have said that on instructions. It seems to me that accused’s credibility is in doubt.

The accused maintains that when her rights under s.42 of the Constitution had been explained to her she asked to be allowed to speak to Joseph Aoae but that the policemen made no effort to contact him. The policemen deny this. They say that she asked for someone called Emmanuel but was unable to give either his address or telephone number. I believe the two policemen on this point.

It appears from certain questions and answers which accused’s counsel, Mr. Sakora, has cited from the record of interview that Constable Guyolo asked the accused at least three times whether the accused was serious about wanting a lawyer and that the accused not only made it clear that she wanted him but that she wanted him before the interview could commence. In these circumstances Constable Guyolo should have waited until the accused had had an opportunity of consulting her lawyer before continuing with the interview. However, I do not think he acted in bad faith. He said that the interview commenced shortly before 4.00 p.m. and shortly after 4.00 p.m. when the accused said she wanted a lawyer he telephoned the office of the Public Solicitor but was unable to contact a lawyer. He then tried to telephone Dr. Nwokolo but again met with no success. There is confirmation of this in that Dr. Nwokolo arrived at the police station the following day at about 12 noon, unfortunately after the interview had been completed.

In support of his contention that the accused should have been allowed to consult a lawyer Mr. Sakora has cited the following passage from Regina v. LemsatefN187B.html#_edn148" title="">[cxlviii]¹:

“It is one of the principles of practice that if a man in custody wants to consult a solicitor he can do so. He is entitled to do so at an early stage of the investigation. The only qualification is that he cannot delay the investigations by asking to see a solicitor if the effect of so asking would be - and I use the words of the rules - to cause ‘unreasonable delay or hindrance ... to the process of investigation or the administration of justice...’ ”

In this case the defendant was detained by Customs officers for being concerned in the importation of cannabis. During the course of the interrogation the defendant said that he would not answer any more questions until he had seen his solicitor. The Customs officers told him that he could not see his solicitor at that time, and that although he was entitled to refuse to answer any more questions they were going to ask him some. The defendant’s wife, having learned that the defendant was in custody, instructed a solicitor. The solicitor was not allowed to see the defendant until after he had made oral admissions and a written statement. At the trial the judge in the exercise of his discretion admitted evidence of the oral admissions and written statements. On appeal Lawton L.J. delivering the judgment of the court said in the course of his judgment the words cited by Mr. Sakora.

Mr. Sakora said that he had not read the report of the case because he could not find the report and that the passage had been given to him by Mr. Alpine. I myself found no difficulty in getting a copy of the report from the court library. Had Mr. Sakora or Mr. Alpine read the law report they would have read the following passage:

“The point was taken at the trial that both the oral admission and the written statement should not have been admitted in evidence because of breaches of the Judges’ Rules. It turned out, when that matter was investigated, that the allegation was not so much that the Judges’ Rules, as such, had been breached by the Customs and Excise officers but that there had been breaches of the principles which underlie the Judges’ Rules. The relevant one is principle C which is as follows:

‘That every person at any stage of the investigation should be able to communicate and consult privately with a solicitor. This is so even if he is in custody, provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so...’ ”

The following passage from the same case, at p.817, is even more to the point:

“This matter was canvassed before the judge and he was asked to refuse to admit, in the exercise of his discretion, the oral admissions and the written statement which had been obtained in the circumstances to which I have already referred. He clearly took into consideration the fact that he had to be sure that the admissions had been made voluntarily. He decided in the exercise of his discretion to admit the evidence as to admissions. There is nothing to indicate that he exercised his discretion wrongly.”

I see no good reason for exercising my discretion in favour of the accused and rule that the record of interview is admissible.

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: B.J. Cassells

Solicitor for the Accused: C. Maino-Aoae, State Solicitor

Counsel for first and fourth accused: A.J. Alpine

Counsel for second accused: M. Unagui

Counsel for third accused: J.E. Byrne

Counsel for fifth accused: B.B. Sakora

<48">N187B.html#_ednref148" title="">[cxlviii] ^{(1977) 1 W.L.R. 812 at p.815}