Unreported National Court Decisions
N235
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
LAKIO TAMBAI & 2 OTHERS
Wabag
Narokobi AJ
10-12 June 1980
NAROKOBI AJ:  The State case consists of alleged admissions found first in the statements said to be made by Bruce Kunji and Lakio Tambai to Constable Simin Tiwi and in the three records of interview of all three accused.
Additional support for the State case is that the accused estimated the distance between the scene of the crime to their homes. Bruce Kunji, the State argues, went further, he described the area as being steep.
The accused left their homes on the day the crime was committed and were staying with relatives in Baiyer River when they were arrested. Through a line of cross examination, the State imputed motive in the 3 accused. They had no money and needed the money to buy cigarettes, food, clothing and the like.
The accused made occasional visits to Baiyer River to see their sisters, about three times a year. Lakio had been there once. It may therefore be reasonably inferred that the main purpose for their visit on that day (24/1/1980) was to escape arrest, so asserts the State.
There is no doubt that if the two statements and the three records of interview were to be admitted in evidence and accepted as evidence, the three accused would be found guilty of the offences as charged.
The accused challenged the statements and the records of interview first on the basis that they were not voluntary and subsequently that so much of the records of interview as admitting guilt were never given by the accused to the police. As for the statements, the accused simply say that they never gave any admission statements to the police. The accused also allege that the records of interview left out their answer which denied their liability.
Initially, the voir dire was conducted with a view to establish whether the confessions were made voluntarily. In the course of the voir dire, the accused alleged that the so called confessions were fabricated by the police. On this basis, the voir dire was abandoned, and the evidence adduced within the voir dire was received, leaving the question of weight if any, to be given to it for further argument and evidence.
In receiving the statements and the records of interview, I am not thereby saying these were made voluntarily nor am I saying these have become part of the State case. The defence challenge, as I understand it, is that the statements of admission were never made, and confessions in the records of interview were never made, or that they do not reflect accurately what the accused said. I have to be satisfied as a matter of fact that the confessions were in fact made. Put alternatively, the State has to satisfy me on balance of probabilities that the confessions were in fact made by the accused.
I am then left, as a matter of broad judicial discretion to decide whether to admit the confessional statements. In this regard, the best rule to apply is not to revert to the question of voluntariness, but to consider whether it would be fair to the accused to admit such alleged confessions. What is fair is dependent upon the facts of each general rule can be laid down.
To exercise my discretion, I propose to conduct a judicial review of all the facts and circumstances surrounding the alleged confessions. I deal first with the alleged confessional statements of Bruce Akuli Kunji and Lakio Tambai.
Chronologically, the statement of Lakio Tambai was made, so it is said on 31st of January, 1980 to Constable Simon Tiwi. This statement is handwritten, containing 5 pages. It is said to have commenced at 2.15 pm. At the end of each page, appears Lakio Tambai’s name. The policeman, Simon Tiwi who took the statement did not sign it and no corroborator’s name appears.
The statement is written down in English, a language which the accused said he does not understand. The accused claims some knowledge of pidgin, but says he is not fluent in the language. On the face of the statement, no interpreter’s name appears, and Constable Tiwi does not indicate in evidence that an interpreter was used. The accused went to elementary school, but dropped out at Grade 2, perhaps 3.
The statement contains no s.42(2) caution, on the face of it, even though Constable Tiwi claims the caution was administered. The statement further, does not say to the accused that he may remain silent, if he wishes to.
In the District Court, at the committal, this statement was not put in as part of State evidence and Constable Tiwi did not give evidence either in the committal.
No doubt the police are busy and cannot be expected to comply with every nicety of Western law. However, the Constitution of P.N.G. is not a Western law. It was prepared by Melanesians and enacted by Melanesians.
There is some evidence too that the accused was taken from the corrective institution where he was mixed with the convicted persons, contrary to the requirements of s.37(18), accused to be segregated from the convicted persons, and s.37(19) persons under voting age to be separated from other persons.
The National Court, is not a court of legal niceties, but a court of justice. I may go further and say that it is a court of justice and conscience. He who comes to this court must come with clean hands and clear conscience.
In the system of justice in which we are to administer law, the State must secure convictions to protect life, property and liberty. In my view, the evidence adduced so far leaves much to be desired about the confessional statement.
Because a confessional statement is the best evidence available, there must not be any unfair means used by the State to obtain a confession. A confessional statement is no different from a record of interview which contains confessions.
In this case, I make no positive finding to the effect that there was fabrication simply because the standard of proof is different.
Whether the statement was made or not, I find myself placed in a situation that in the exercise of my discretion, I cannot admit this statement as part of the evidence against this accused. I therefore reject the admission of this statement.
I next turn to the confessional statement of Bruce Akule Kunji. This statement is made in English, a language the accused well understood, having been to high school up to Grade VIII. There are three hand written pages, made by Constable Tiwi. Constable Tiwi did not sign this statement. It was not given as evidence in District Court. It was taken, it seems in police investigations office by Constable Tiwi. It has no corroborator. It was taken when the accused was held in Corrective Institution Service, in violation of s.37(18) and (19) of the Constitution and also in violation of s.42(2) and the judges rules.
In my view, this statement, would be unfair to the accused if admitted as part of State evidence against the accused, Bruce Kunji. I therefore reject the admission of this statement.
I am now left to consider the so called records of interview. The principle to be applied is one of fairness, if I decide that records of interview were in fact made and that the police did not fabricate the records.
In my view, I do not have to find positively that the police were engaged in fabrication or extortion to reject the records. It is enough for me to survey the demeanor of witnesses, the evidence as it is available and decide whether it would be fair to the accused to admit certain so called confessional statements.
As I review all the evidence, I find, with regret that the State evidence falls far short of supporting a case of properly made records of interview which contain every fair and relevant question put by the Prosecution, and every voluntary answer given by the accused.
I find the inconsistencies more than mere vagaries or inadvertencies due to lapses of the minds due to lapse of time.
We have a classic case in which the police say one thing and the three accused say another, and the Court is poised in between to decide who to believe.
The system we inherit, for better or for worse, has mechanisms which may appear legalistic and complicated for the ordinary citizen. But the devices exist to ensure that every conviction secured by the State is fair, in that it is supported by evidence fairly obtained. Those who are punished must not feel a grudge that they were wrongly convicted and punished.
In this case, it is not a question of believing the accused and not believing the police case. It is simply a case of whether it is safe to admit the records of interview as part of State evidence against the accused. I cannot stress this point too much. In every case, the police will do their very best.
However, the very best may not measure up to the requirements of fairness necessary for the exercise of judicial discretion to admit certain evidence of the State.
Chronologically, the records of interview were taken after the statements alleging admissions. The records of interview were made of Lakio on 5.2.80, of Itai on 7.2.80; and of Akule on 12.2.80.
In this case, I am unable to accept the records of interview as part of State evidence for the following reasons.
First, there are the two “confessional statements” of Lakio Tambai and Bruce Kunji. If I am not satisfied about the two previous statements, how can I be satisfied about the subsequent three records of interview, in the light of other uncertainties, I will outline.
Secondly, the records of interview make no mention of the interpreter. In the case of Bruce Kunji, English language was used. But in respect of the other two accused, no interpreter is mentioned. In the case of Lakio Tambai, he speaks and understands no pidgin and cannot even write his own name. In the case of Itai, he understands some or “liklik” pidgin, but is not conversant in the language. This seemingly unimportant factor becomes important when the admissions are challenged and further when it is seen that in practically every other record of interview at Wabag in this circuit the interpreter’s name appears clearly.
The Constitution of P.N.G., in s.37(4)(d) makes it mandatory that every person charged shall have the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge. Although the trial does not begin until the accused pleads to the charge, his jeopardy begins from the day of his arrest.
In this particular case, an interpreter was in fact used. But the omission of the interpreter’s name in my view raises questions about the nature and weight, I would give to the records of interview. There being no satisfactory reason for leaving out the interpreter’s name, I regard this as a factor which adds to the credibility of the defence case.
Thirdly, I refer to the “signature” of the accused Lakio Tambai. This accused clearly cannot write his own name. And yet, every page of 10 pages, has his name. Evidently, Lakio was made to hold the top of the pen and a policeman wrote the name by placing his hand in the middle of the pen and thus they wrote.
Unfortunately, I am not impressed by this kind of evidence. If the accused cannot write, the practice in this country is to ask him to put a cross or a mark indicating his individuality to be verified by a statement like - “This is his mark LAKIO TAMBAI”.
Fourthly, and coming to the substance of the evidence on the records of interview, I find inexplicable inconsistencies. I am satisfied that contrary to the State case, significant statements of denial by Bruce Kunji were left out of his record of interview. This was shown on cross examination of the officer-in-charge of this case, Sub Inspector Kanane.
Defence Counsel asked the Sub Inspector if he remembered asking a question:
“Did you see or hear about any trouble that happened at your place and the answer was ‘No’?”
The record of interview contains no such question and answer.
It is clear from the evidence that the records of interview have been careful to leave out denials. The evidence of the Sub Inspector is not impressive at all. There was no reason for him to be over cautious. His common answer to defence questions was - “I can’t remember”, or “I was too busy”.
That may be so, but we have 3 citizens of this country, very young citizens. They are under serious charges over crimes that are becoming common and for which all sections of the community are demanding heavy penalties.
If the officer-in-charge of the case cannot remember questions and answers to assist the court, then there is really not much anybody could do to support the authenticity of the records of interview.
Fifthly, considerable time had lapsed from the day of apprehension to the dates of the records of interview. Two accused Bruce and Itai Manakale were arrested on the 28th of January. The record of interview of Bruce was not taken, if it was taken at all, until February 12th. Itai’s record of interview was taken, if at all on the 7th of February, and that of Lakio Tambai was taken on the 5th of February. Time lapses may not be all that significant on their own, but when taken with other parts of the evidence, they lead me to believe the accused could not have made statements of their free choice.
The evidence of the police cleaner and interpreter, Kaiko Lali is not at all impressive. His evidence was that one of the accused, he identified as the man with the red shirt Lakio Tambai said they stole the money so the other two agreed, one at a time. The charges, the accused face concern mail bags, not money.
According to this witness, when Sub Inspector took Bruce into his office, he was there, but he never saw Kanane write in a note book. Bruce said then, according to this State witness, that he, Bruce did not know anything about this trouble.
It should be remembered too that one of the accused is about 13 the other is about 15 and Bruce Kunji is 19. In interrogating youths, it is my view that extra caution should be taken. Wherever practicable, a welfare officer or a friend of the accused young persons should be present. In this case, with regard to two of the accused, Lakio and Itai, I would think that it would be most desirable that a welfare officer or a person they have confidence in was present before interrogations commenced.
In this case, the State produced a suspect to corroborate the confessional statements. I refer to witness Panau Nita, who was subsequently not charged by the police. This witness has since been charged with an offence relating to some money the property of the accused Lakio Tambai’s uncle.
Panau Nita’s evidence is that the three accused were together when they, collectively said they stole the mail bags. His evidence is that the three accused spoke of how they got on top of the vehicle. Comparing this evidence with the records of interview, we get very striking differences.
There is nothing in the records of interview to indicate footprints on the canvas. As to the actual climbing, Lakio Tambai denies seeing the truck in his so called record of interview. Itai Manakali says Akule Kunji jumped on top and cut the ropes while Akule Kunji is reported to have said, it was Kaem Kananbao who pulled one of the bags down accidentally, and “we pulled them out”.
Constable Michael Maso also gave evidence to support the confessional statement. His evidence is that when he was in the office he saw the three accused and heard them say “we are involved in this mail bags robbery”. Constable Tiwi was not there, that time and Constable Maso was there no more than 5 minutes. He could hardly be called a corroborator.
It is clear from Constable Michael Maso’s evidence and the evidence of Panau Nita that nothing else than the confessions were made by the accused following Sub Inspector Kanane’s questioning. This evidence would support the accused’s evidence that they were not cautioned or warned against speaking.
In this case, I make no positive finding that cautions were not administered. Even if cautions were administered, unless they were gone over very carefully and the accused were invited to say in their own words what they understood by the cautions, it would be a mumble of words to most Papua New Guinean accused.
Finally, there are the allegations of assaults, burning with cigarettes, and stripping. These allegations were made generally, but were in fact directed at the cleaner-interpreter, Sub Inspector Kanane and Constable Tiwi. I make no findings on these allegations because of exercise of my discretion to exclude the alleged confessional statements, in the reasons I outlined above.
There being no other evidence presented against the accused a verdict of not guilty is entered and the accused are acquitted and discharged.
In deciding the way I have decided, I have read the following cases:
(1)      R. v. Kar Moro & 16 Others (1975) P.N.G.L.R. 15 a judgment of Lalor J. and cases cited there.
(2)      The State v. August Toiamia (Unreported Judgment N145 May 1978) A judgment of Wilson J.
(3)      Constitutional Reference No. 1 of 1977.
(4)      Wendo’s case 109 C.L.R. 559
(5)      Murphy’s case (1965) N.I. 138
(6)      Kuruma’s case - appeal from Kenya (1955) A.C. 197.
(7)      Carter 660 - 665.
There being no other evidence the accused are acquitted - verdict - not guilty.
Solicitor for the State: A/Public Prosecutor C. Maino-Aoae,
Counsel: J. Pollak
Solicitor for the Accused: A/Public Solicitor, D.J. McDermott
Counsel: K. Wilson