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State v Pai [1986] PGNC 1; N535 (13 March 1986)

Unreported National Court Decisions

N535

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
JOHN YAMBRA PAI

Mount Hagen

Pratt J
13 March 1986

CONFESSION - voire dire - voluntariness - whether voire dire can be called when defence claim that many or most of the answers recorded in the Record of Interview were never made by the accused.

CONFESSION - fabrication - voire dire not granted.

CROSS-EXAMINATION AND EVIDENCE BY ACCUSED ON VOIRE DIRE IS RESTRICTED TO THE ISSUE OF INVOLUNTARINESS OR UNFAIRNESS - defence cannot lead evidence on claim that confession not made - such cross-examination and evidence is for the trial proper.

Counsel:

Mr. Kuvi for the Prosecution

Mr. Poka for the Defence

13 March 1986

PRATT J: Cl for the defence is chal challenging the admission of a confession in this trial on two major grounds: a) Involuntariness, with perhaps an element of the discretionary aspect of unfairness, in that the accused was kept in handcuffs and b) that the bulk of the answers recorded in the record of interview were not made by the accused. The involuntariness is said to result from duress in the form of “severe” assaults on the accused at the Mt. Hagen Police Station just before the commencement of the record of interview. Counsel has called for a voire dire.

I think it is important when referring to the common law authorities particularly in United Kingdom, Australia and New Zealand, to bear in mind that they deal with cases within the context of a jury system. It is therefore essential to have some understanding of the difference in procedure under such circumstances. In the case of a jury trial counsel indicates to the judge merely by way of objection to the admission of the confession, whereupon the jury withdraws from the trial. Of course the judge would have had already noted that the confession is under challenge as no mention of a confession or its content will have been made by the prosecutor in his opening address to the jury. This arises because of an intimation to such prosecuting counsel by the defence before the trial gets underway that the confession will be under challenge. If such intimation is not made to the prosecutor then he would be quite entitled to open in full on the content of the confession to the jury and the defence counsel would be very properly criticised for a failure on his part to carry out his duties by omitting to tell the prosecutor that the confession was under challenge. Having sent the jury out, the trial judge then commences to hear the evidence on the voire dire. That of course would normally be the evidence from the interrogating officer and his corroborator and perhaps other police officers who were concerned with the detention and, or transport of, the accused to the police station. Following the prosecution evidence, the accused will invariably go into the box and give his version of events and may also call witnesses whose evidence is relevant to the issue of voluntariness or unfairness. At the conclusion of all that evidence, the judge will then make his ruling, following which the jury is recalled into the court room. If the confession is admitted it will be placed before the jury either in writing or verbally. If it is not admitted then of course they hear nothing about it at all, and don’t even know whether the opportunity was given to the accused to make a statement about the matter. Of course they have heard none of the evidence of the police or the accused, and if the confession has been admitted by the trial judge it is not necessary for the prosecution to lead again all evidence in the voire dire. The evidence would be in a more limited form because the aspect of involuntariness has already been dealt with and is not relevant to any question before the jury. Nevertheless there is still a certain amount of repetition in order to place all the relevant facts before the jury.

Having said that I come back to the matter in hand. I have always been somewhat receptive to the type of argument developed by Bray, C.J. in Reg. v. Matheson & Others (1969) S.A.S.R. 53, and followed by the Court of Criminal Appeal in R. v. Gleeson (1975) Qd. R. 399. The gist of the proposition is clear enough. If the object of a voire dire is to determine whether what was said during the record of interview as constituting a confession, was said voluntarily, how can such a process be relevant to the situation where the accused claims he said nothing at all. After all if nothing was said then there is nothing to be admitted and consequently no ruling by the judge is required. The same argument applies even where the judge is being asked to examine his discretion on the grounds of unfairness or impropriety. The reservation in the Reg. v. Hart (1979) Qd. R. 8 expressed by Connolly J. on behalf of the full bench is a minor one and with great respect, a little difficult to understand. Like any other factor laid before the court or jury, both sides lead much evidence which is conflicting, and it is for the tribunal of fact to determine who is telling the truth, not the judge of law.

However, I have now had occasion to examine this aspect more fully on re-reading the High Court decision MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512 (1981) 55 A.L. .R. 594. Whilst their Honours Justices MASON, AICKIN and BRENNAN do not consider this particular problem in their judgements, it is the subject of direct comment in the joint judgement of GIBBS C.J. and WILSON J. Their Honours specifically overrule Matheson’s case and Gleeson’s case (supra) and can find no justification for the distinctions made in R. v. White (1976) 13 S.A.S.R. 276 or in R. v. Hart (supra). At page 522-3 their Honours say as follows:

“For these reasons, although the question whether any confession was made is one for the jury and not for the judge, a voire dire is required when the accused disputes that any confession was made, but also claims that there was such inducement or pressure that if a confession was made it was not voluntary. The recent decision of the judicial committee in Seeraj Ajodha v. The State (1981) 3 W.L.R. 1 supports this conclusion.”

Unfortunately for us the report of Seeraj Ajodha in the reference given, is not available to us in Mt. Hagen and there appears to be no record of the judgement in the All England Law Reports.

What the High Court decision brings home most forcibly is an aspect which has hitherto been overlooked. If no determination is made as to voluntariness then the jury, in disbelieving the accused’s claim that the confession is a fabrication, will then be considering a piece of evidence which, assuming the confession was made involuntarily should never have been admitted into evidence as a matter of law. The same goes if the judge has failed to exercise his discretion on matters of impropriety or unfairness.

Whilst there is perhaps a certain element of logical difficulty about this proposition which will no doubt afford an enjoyable debating ground for some academic lawyers, the end result would be quite absurd if the High Court view were not followed. The trial judge must act along the usual channels, even though the making of the confession is denied, and first of all must determine whether the alleged confession was made voluntarily or in proper and fair circumstances. Having performed that task then in the event of the alleged confession being admitted it is for the jury, or in Papua New Guinea the judge as a judge of fact, to determine the factual matter of whether or not it was actually made.

I think the present approach by many counsel for the defence in requesting in the same breath both a voire dire on specified grounds and also alleging that the confession was fabricated should stop. In addition we have an additional factor in this jurisdiction where the judge is both one of fact and law, in that most of the prosecution evidence on the voire dire is admitted into the trial, subject of course to such legitimate objections as maybe made by the defence. I had occasion to comment on this aspect in the trial St. v. Kusop Kei Kuya (1983) P.N.G.L.R. 263. I do not believe that the accused should be allowed to attack the content of the confession in the voire dire. Counsel should restrict cross examination to those areas concerning the admissibility of the confession. Likewise on the voire dire the accused will be restricted to the evidence concerning involuntariness or impropriety. At the conclusion of all the evidence on both sides the judge should make his ruling on the voire dire. Invariably the prosecution will have been forced into commencing a voire dire during the giving of evidence on the trial proper by the main police witness. If the confession is admitted such police witness together with any other witnesses relevant to the question of fabrication of the confession will then continue their evidence after the completion of the voire dire. If it is the intention of the defence to challenge the truthfulness of the making of the confession then one would expect that the accused will give evidence on this question of fact, but like any other question of fact he will give it in the trial proper and not on the voire dire.

It is true such a course makes it almost mandatory for the accused to give evidence at the close of the prosecution’s case but I do not see anything unfair in that. If he contests various statements of fact in the trial then it is to be expected he will swear to those matters as part of his defence.

Such a course may add slightly to the length of a trial but in view of the practice in this jurisdiction where much of the evidence on the voire dire will become evidence in the trial, the time so spent will still be much less than that expended in jurisdictions where trial is by way of jury.

I rule that the defence in this case is entitled to a voire dire even though they claim the statements contained in the record of interview were never made at all, but that any questions or evidence by the defence which relate to the matter of fabrication are not permitted unless it can be shown that such questions are directly relevant to the question of admissibility.

Lawyer for the State: Public Prosecutor

Lawyer for the Defence: Public Solicitor