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State v Some [1982] PGNC 31; N366(M) (15 January 1982)

N366(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS SOME

Lae: Kidu CJ
15 January 1982

KIDU CJ: After the State rested it’s case yesterday Counsel for accused made a number of applications. In these applications I was asked to reject certain evidence implicating the accused. Counsel also submitted that the State evidence was such that I could not safely convict the accused.

I deal with the application in the order they were made by Mr. Lightfoot.

1. EVIDENCE OF ALLEGED ADMISSION IN INSPECTOR MAUGUWA’S OFFICE.

The accused, on the morning of 11th May, 1981 (8.00a.m), turned up at the Lae Police Station. There he was "apprehended for questioning" (using Salun’s own words) by Constable 1st Class Salun and taken to Inspector Mauguwa’s Office. The Inspector is the Officer In Charge of the Lae Criminal Investigation Division. Salun is one of his men.

What really happened in that office is not clear from the evidence of both Inspector Mauguwa and Constable Salun. According to the Inspector he cautioned the accused before his conversation with the accused. He also informed the accused what the conversation was about - the alleged rape of the complainant. It was then that the accused is said to have admitted taking part in the offence. He was asked who the others were and gave the names "Samson, Tibong, Philip and Sila". Constable Salun’s evidence on this is similar except he says no caution was given to the accused. According to him the first conversation from the Inspector to the accused could have been "Are you Thomas Some..." The constable also said that the first thing the accused did was to give the names. "He first gave the names. He said Natuai. The other name was Philip. The other name was Samson and the other Sila". As there is no record of this conversation one cannot be sure who is correct and who is not correct. If there were other things said by the Inspector or the accused, one can only speculate. Salun indicated that there were other things said but he forgot them. This was in his evidence in chief:

"Q. Any other matters covered in the conversation?

A. I forgot about some other matters".

The danger of accepting this evidence is obvious. We have only bits and pieces of the whole conversation. What has not been said or could not be remembered? Inspector Mauguwa said he did not take a statement from the accused because they had not established that he was actually involved in the commission offence. This was said in his evidence in chief. In cross-examination he said the following when asked why no notes were taken of the conversation.

"The accused was not charged and I was not the investigating officer"

These are far from being convincing reasons. An investigation into a serious crime was in progress and a man under suspicion is questioned and we are told these reasons for no notes being taken. I consider the evidence of alleged admissions so unsafe I am not willing to consider it any further.

2. EVIDENCE OF ALLEGED CONFESSIONAL STATEMENT IN SALUN’S OFFICE.

When the accused left Inspector Mauguwa’s Office he was taken by Constable Salun to his Office and there the accused is alleged to have given a confessional statement to Salun. This statement is not in evidence. It is missing. Salun said he put it in a file given to Mr. DeSilva who is at present on leave in Sri Lanka. I have no doubt that the accused signed a paper of some sort. He admitted that in his Record of Interview. Whether it is this confessional statement or not is anybody’s guess. How an important document containing alleged confessions to a serious crime such as rape can be lost is beyond me. It seems to me that the Police should take a little more care looking after these types of documents.

It is possible that when Salun, on 15th May, 1981 put questions 21, 22, 24 to the accused (all denied by the Accused) he based them on what the accused said in what he calls the "confessional statement". However, I consider that that is speculation on my part. Even the Prosecutor, Mr. Henao, has never seen this so called "confessional statement". I am unable to place any reliance on a non-existing document. There are many questions one might ask about this statement, if it existed at all. Was the accused cautioned? It would be grossly unfair and unjust to the accused if I were to place any reliance on this missing document.

3. THE IDENTIFICATION PARADE AT REAR OF POLICE STATION 11TH MAY, 1981

On the morning of 17th May 1981 Inspector Mauguwa and his men lined up 13 men and 4 accused at the back of Lae Police Station. The complainant was called to identify suspects. Before she proceeded with her task she was told by Inspector Mauguwa that there were 5 suspects in a line up and asked to identify suspects by pointing at them with her index finger. The complainant, accompanied by a Sergeant and in the presence of Inspector Mauguwa, proceeded to do so. According to the Inspector she identified 5 men. One, Tom Morea, who was not a suspect was pointed out by the complainant.

The complainant identified the suspects on the basis of general descriptions (which could fit a lot of men). They are contained in her notes (Ex"D"). She saw these men in the dark mostly. On the basis of these very general descriptions she identified 4 suspects and one who was not a suspect. She cannot be blamed for this. It was not her fault that she was abducted in the dark and raped in the dark. My point is that she would have found it difficult to identify people she did not see very well in the dark nine days before. Apart from this, the Defence criticised the way in which the identification parade was conducted. It seems that in this Country there is no directions to the Police as to the proper way of conducting such a parade. I am not aware of any judicial pronouncements on the matter. However, in England so I am told, there exist such directions and these have been judicially recognised. I have not had the advantage of reading these directions in print. But I can say this, and its only common sense, that an identification parade must be fair to suspects. A witness who is asked to identify suspects in such a parade should never be told that the suspect is or the suspects are in the parade. A witness should merely be asked to view such a parade to see if he/she recognises anybody. In this case the witness was told 5 suspects were in the line up. This should not have been done. The possibility that a witness will identify five people because the police tells him/her that there are 5 suspects in the line up, can’t be ruled out. If a suspect is supposed to be 5’10" tall, all those in the line up should be of the same height. It would be a farce to put in line up of 10, nine who are 5’6" and one (the suspect) who is 5’10" for instance. If a suspect is described as 5’10" tall with long hair - all those in the line up should be of that same description.

Where it is alleged that suspect may be identified by his voice, what he/she said to the witness should be repeated in the language he/she is alleged to have used. In this case, according to Inspector Mauguwa the suspect Some was asked to say something in Pidgin. This was unfair because he was supposed to have said whatever he said in English.

There is another criticism of the identification parade and an important one. Suspects were not advised of their right to remain silent. They should have been advised of this right.

One other thing was what the witness (the complainant) wrote in her notes - that one of the suspect was "a very young boy about 14 or 15 years old". The evidence shows quite clearly that the identification parade did not have any person or persons of that description.

I have mentioned only a few things that should be observed when an identification parade is conducted. I reiterate here that when an Identification parade is conducted the police should ensure that it is fair and just one. The Police have a duty to catch those who commit offences. But they also have a duty to ensure an innocent man is not convicted because of an unfair identification parade or a defective identification.

In this case I do not put much reliance on the evidence from the State that the accused was identified in the identification parade of 17th May 1981. One reason is that the complainant, in her evidence, said he was the one who drove the car to the scene of the crime. This cannot be so. I have sentenced a man who said he drove the car to the scene of the crime. The other reason is that during the identification parade the complainant pointed out a man (Town man) as a suspect. He was not a suspect. If she would make this mistake, its probable the identification she made are questionable.

Having made the above rulings I now consider Counsel’s last submission that the only evidence remaining, the Record of Interview, is not sufficient to lawfully convict the accused. At this point, I state again, that there is no contention that the complainant was raped by five men at place near the Markham Bridge, on the very early morning of 9th of May, 1981.

Yesterday I ruled that the Record Of Interview be admitted in evidence. Now I am asked to consider it again. The question I ask is this. Should I, in my capacity as the Judge of Law’, refer this evidence to myself as the judge of facts?

Mr. Lightfoot urged that I should, in my Judge of Law capacity, rule that the evidence in the Record of Interview be not referred to me in my capacity as the Judge of Facts. Sometimes, I must admit, I find it extremely difficult to split myself into half - Judge of Law and Judge of the Facts.

The Record of Interview does contain some conflicting answers. The accused denies any knowledge of the offence then later makes admissions and at the end of the Record makes a general denial. However, that does not affect the fact that he answered questions without force, duress or promises. Nor does these affect the fact that that he signed the Record of Interview of his own free will. I reiterate what I said in my ruling on the Voir dire yesterday. The accused was given the opportunity to make changes in the Record of Interview read to him but he did not avail himself of that chance.

The Record of Interview contains his own admissions of taking part in the offence. Whatever the reasons for his failure in not making alterations in the Record of Interview the blame for this failure does not lie on Constable Salun or anyone else.

I rule that the accused has a case to answer.

Solicitor for State: Public Prosecutor
Counsel: L. Henao
Solicitor for Accused: Public Solicitor
Counsel: D. Lightfoot.