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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 493 OF 1988
THE STATE
V
JOHN KOGA IVORO
Waigani
Brunton AJ
5-7 September 1989
11-14 September 1989
CRIMINAL LAW - Law of Evidence - Voir Dire - Voluntariness - Exercise of judicial discretion - Constitution s 42(2) - absence of the constitutional caution - record of interview - police verbal (oral admission by the accused) - intoxication of the suspect.
ORDER:
By virtue of s 57 of the Constitution ordered that the record of interview be excluded from evidence on the trial.
In the exercise of the judicial discretion the oral admissions made at Ensisi Valley be excluded from evidence on the trial.
Cases Cited:
Constitutional Reference No.1 of 1977 [1977] PNGLR 362.
The State v Silih Sawi [1983] PNGLR 234.
McDermott v R (1948) 76 CLR 501.
R v Skelley [1965-1966] PNGLR 105.
The State v Joseph Maino [1977] PNGLR 216.
Schliebs v Singh [1981] PNGLR 364.
State v Wangabin Tonieng and 2 ors [1986] Unreported N542.
The State v Mana Turi [1986] Unreported N579.
R v Lee & ors [1950] HCA 25; (1950) 82 CLR 133.
R v Jeffries [1946] NSWStRp 54; (1947) 47 SR (NSW) 284.
The State v Konts Kot [1987] Unreported N623.
The State -v- Paro Wampa & 5 ors [1987] Unreported N599.
The State v Kevin Evertius and Thomas Kundi [1985] Unreported N504 (M).
John Alex v Martin Golu [1983] Unreported N419.
The State v Karara Peter [1983] Unreported N438 (M).
State v Songke Mai and Gai Avi [1988] Unreported SC348.
Statutes:
The Evidence Act Ch 48 s 28.
The Constitution 22, 23 s 38 s 42(2) 42(2)(b) 43, 43(2)(f), 44, 44(6) 57 58 Sch 1.5.
Arrest Act Ch 339. s 24
Texts:
Chalmers, Weisbrot and Andrew Criminal Law Practice of PNG 2nd Ed 228.
Counsel:
Mr. Soi, for the State
Mr. Koeget, for the Accused.
JUDGMENT ON VOIR DIRE
BRUNTON AJ: tate Prosecutor sought to t to tender a confessional statement made by the accused; the lawyer from the Public Solicitor’s Office objected.
The objection was that the statement was made contrary to section 28 of the Evidence Act; it was unfair and should be rejected as a matter of discretion; and it should be rejected because it was obtained in violation of constitutional rights.
Particulars of the objection were given as follows-:
1. &ـ t60; the acce accused was continuously assaulted by Sgt. Tom Chinau and other policemen on arrest at Morata, and lat thisi Valley
2. ټ&#h60; s was not peot permitted to d to receireceive medical treatment for injuries to his face
3. the accwsed ufs sienicy inly intoxicated after consuming beer with the police, so as to impair his mental capacity
4. & t60;acce ed wss hungry
5. &ـ t6at what when then the accused first made a verbal admission to the police, while consuming beer at Ensisi Valley, the accused was not given his constitutional rights pursuant to s 42f theonstin
6.&#>6. & w60; when the accused was taken to Boroko Police Station, and gave a formal statement, although cautioned, he was not given his constitutional rights under s 42(2) of the Constitution.
It isrent the ad made two atwo admissdmissions.ions. The first was an oral statement at Ensisi Valley. The second was a written statement at the Boroko Police Station.
THE POLICE EVIDENCE
The police witnesses called on the voir dire testified that on the afternoon of the 16th of March 1988, a “plain-plate” Toyota utility, driven by Sgt. Tom Chinau of the Serious Crime Squad, was on consorting duties in the Waigani-Morata area. In the vehicle were Detective First Constable Katuwaku, Detective Kari Tiriho and Detective First Constable Andrew Arandja. At about 2.30 pm, at Morata, they saw the accused and two companions, and pulled over to talk to him. He walked over to them voluntarily. Sgt. Chinau, an experienced investigator, testified that the accused John Koga Ivoro was a police-informer, and that he had known John since 1984. According to Sgt. Chinau the accused had given information on thirty or forty different occasions about gang activities, escapees and the location of stolen property (Chinau: 65, Tiriho: 69). The accused did not deny he was an informer, although he said he was “forced” to inform. He admitted that in the past Sgt. Chinau had paid him for information (Ivoro: 91).
Sgt. Chinau’s account of the events at Morata was that the accused approached his vehicle when he stopped nearby, and offered to buy beer for the police in the car. Sgt. Chinau could see the accused had been drinking because his breath smelt of beer (Chinau: 38) and his eyes were red, although “not very red” (Chinau: 64). Chinau accepted the offer because he realised that it was likely some criminal intelligence may be forcoming. The accused got into the back of the utility and they drove to the Waigani shops. There the accused got out, and Chinau followed him into the shop. Chinau saw the accused had about K100, and watched as he bought a twelve-pack of beer. They then drove to Ensisi Valley and parked at the end of the road at about 3.15 pm (Chinau: 40). The party gathered around the tray of the vehicle, some inside the tray some standing on the ground. They all drank. According to Chinau the atmosphere “was just like ordinary normal friends sitting down and drinking” (Chinau: 41). There was no precise evidence of the initial content of the conversation - it was conversation in general. But suddenly the accused asked the police “do you know of a robbery in the SP Brewery, Badili?” Chinau said “No, I don’t know about it”. The accused is alleged to have then said “I will give you a statement about this robbery, it was committed by me and four of my friends; you can get the others and leave me alone” (Chinau: 32). Mr. Chinau said he was not sure whether the accused was telling him the truth, but he decided to ask the accused to accompany him to the Boroko Police Station so that he could take a formal statement. No caution was administered at that point, because Sgt. Chinau did not know whether he should believe the accused. Shortly afterwards, between about 3.30 pm and 3.45 pm, the group drove back to Boroko Police Station. They went to the Serious Crime Squad office and Sgt. Chinau arranged to do an interview at his desk with the accused. Constable Charles Gandari was the corroborator, but Kari Tiriho was also present at a nearby desk. A statement in question-and-answer form was taken down in Sgt. Chinau’s handwriting. The statement was in pisin. A formal caution was administered at the beginning of the interview. It was read back to the accused and then signed by the accused, Sgt. Chinau and Constable Gandari. After the interview, Sgt. Chinau telephoned to Badili Police Station to ascertain whether or not there had been a robbery at the SP Brewery Bottle Depot. When this was confirmed, he advised the accused of his constitutional rights, formally arrested him and had him locked in the cells.
THE EVIDENCE OF THE ACCUSED
Evidence for the accused came from the sworn testimony of the accused. No other witness was called. He testified that on the 16th of March 1983, he had been drinking at Morata with two of his cousins. After they consumed the beer they had, they went out looking for more. They stopped at a snooker-place, and then went to a store and bought a carton of beer and some meat. Shortly after this he and his cousins saw Sgt. Chinau in his vehicle. Sgt. Chinau called out to him, but he refused to go near the vehicle. Chinau took out his pistol and threatened him. The accused sent his cousins away. When he got near to the car Sgt. Chinau allegedly pressed the pistol to the accused’s body, hit him on the body, punched him in the mouth, and forced him to get into the car. This assault was alleged to have taken place behind a store near the “One-Way Church”. The accused said at this time he was drunk.
The group then drove to the Waigani shops where Sgt. Chinau bought a full (24 bottles) carton of beer. The accused said that everybody got out of the vehicle and all went into the store. He said that at this time “although I was drunk, I was still using my sense” (Ivoro: 86). The party drove off to a place which the accused described as “a short-cut up near University”. There they stood around with the carton in middle and he was “forced” to drink two bottles of beer. He said that the police threatened him; that Sgt. Chinau pointed a pistol at his head. He denied that the occasion was a friendly drink and that they talked about sport, or other generalities. He said-:
“I admitted the robbery because I felt pain and I got scared - I told Tom; but actually I don’t know anything about it” (Ivoro: 87).
After the accused made the admissions he said they all went to Boroko Police Station. At the Station the accused said-:
“Tom punched me on the mouth - it was bleeding - one (officer) took me to wash my face; some were hitting me with gun-butts - it looked like all of them hated me. I told them I was hungry and asked them to lock me up in the cell and take my statement the next day. He (Tom Chinau) went ahead and took my statement on his own ...” (Ivoro: 88).
The accused admitted that the statement was read back to him and that he signed it. His explanation was that he was forced to sign the statement because he was scared and that he hoped to avoid further mistreatment. He said “I thought to myself later I will say it out in court”.
FINDINGS ON THE FACTS
There were a number of inconsistencies in the police evidence.
First there was a discrepancy between the evidence of Sgt. Chinau and Kari Tiriho over who it was that went into the Waigani shop to buy beer. Sgt. Chinau said the accused went in, and that he followed the accused (Chinau: 30-31). Mr. Tiriho said that the accused went in on his own (Tiriho: 68). To complicate matters the accused said that everybody went in.
Secondly there was the issue of whether or not the accused was drunk when he was picked up. Sgt. Chinau said that the accused had obviously been drinking, but that he was not drunk. Mr. Tiriho said when he first saw the accused at Morata “it appeared to me he had consumed some alcohol. He was talking normally. He was standing properly-upright” (Tiriho: 71); that at Ensisi Valley the accused looked like he had not had a good night’s sleep (Tiriho: 69), that he could not tell whether the accused was drunk, that he did not think the accused was drunk (Tiriho: 74).
However a statement made by Mr. Tiriho in the committal proceedings conflicted with this evidence. In that statement he said-:
“At Morata No.2, Kabolu Street, we came across a guy whom we know as John Kogo Ivoro .... I could see he was drunk, we stopped infront of him and called him over and had a conversation with him”.
Mr. Tiriho had changed the thrust of his evidence since he made the deposition before the District Court.
A third matter arose over the evidence about how people were arranged at Ensisi Valley. Sgt. Chinau said they were all sitting around in the tray of the truck with the carton on the floor of the tray (Chinau: 40-41). Mr. Tiriho had everybody standing on the ground at the back of the vehicle (Tiriho: 73). When it was put to him that this version conflicted with that of Sgt. Chinau, Mr. Tiriho said “some were standing and some were sitting”. (Tiriho: 79).
The fourth discrepancy was found in the testimony of Constable Gandari who asserted that Mr. Chinau cautioned the accused and told him of his Constitutional rights before the interview took place (Gandari: 79). When this discrepancy was put to Mr. Gandari in cross-examination at first he said “I have nothing to say” (Gandari: 81). He tried to explain the discrepancy when pressed further by saying-:
“I remember Tom giving the accused his rights. But as I said Tom did the writing and the actual taking of the statement”.
At best, Mr. Gandari was not a good witness who gave an accurate account of what he saw and heard. He was prepared to make assumptions, which infact were not true at all. At worst, he lied.
There was also a problem with timing. Mr. Chinau’s testimony was that they arrived at Ensisi Valley at about 3.15 pm (Chinau: 40) and left about 3.45 pm (Chinau: 45). Mr. Tiriho claimed they were drinking for about one to one and half hours (Tiriho: 73).
The police witnesses all asserted that no violence, threats or inducement was offered against the accused. The State did not call as witnesses the other two policemen who were in the consorting squad utility that day.
The accused was not an impressive witness. He was vague. He embellished his story, by adding the allegations of pistol-whipping and being threatened with at pistol. These allegations were not put in the particulars by defence counsel, and were of such gravity that had they been true would have been at the forefront of his allegations and his cross-examination. The defence chose not to call the two persons who were accompanying the accused at Morata when the accused met up with the police vehicle. Sgt. Chinau, in his evidence, gave the names and addresses of these witnesses.
Although there are discrepancies in the State case they are not such on the issue of voluntariness to create doubt in my mind, although in the exercise of my discretion they do cause concern. I do not believe that the accused was assaulted in the way he alleged and I find beyond reasonable doubt that neither the oral statement made at Ensisi Valley or written statement were induced by threats or promises by any person in authority.
I make the following findings of fact, which were proved beyond reasonable doubt-:
· &ـ < < the accuseda po ice informnformer
· he had been drinkin andunas under the influence of liquor at the time Sgt. Chinau and the others foun at M
183; ⶌ&##160;; madeffadeffer to buy the consoconsortingrting squa squad memd members bers beer.beer. This This was was either an act of bravado or ingratiatn his part· &ـ   h not assauor t or thretenretened at Morata
· ـ &##60;& h60; he got into thto the vehicle voluntarily
· ҈ <&##160;oughtelvk-pacbeof beer atWaigani Shops
· ; < 1he group roup all went tont to Ensisi Valley agan dng be>
· B &1160&#he was not assaultedulted or threatened at Ensisi Valley
· ҈& he mn oraissioSgtt u at i Valley
· &160;  #160;#160;  d he ; he was reas requested to accompae polor thpose lping withr enquiries, bes, back tack to Boro Boroko Poko Police Station
· & ټ he0; he was not ed os hnst hnstitutional rights under sder s 42(2) of the Constitution at Ensisi Valley; he was advised of his constitutional rights afi>, bt befhe gave a writtenitten statement a Boroko Police Station
>
· &<;ɘ h6 was not asot assaulted or threatened at Boroko Police Station.
THE ABSENCE OF A CONSTITUTIONAL CAUTION
The Constitution s 4says-
&;(2)&ـ A person who is o is arresarrested oted or detr detainedained-
(a) & Shall be informed promptlomptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b)҈&ـ she permitted whenever practicacticable tble to como communicmunicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given his ehoicthin the place in which he is detained, and shall be informed immediately on his arrest of his rights under this subsection.”
If, as in this case, a statement is made to the police, without the s 42(2) caution being administered then the law says that the court has a discretion whether to admit or refuse to admit the statement into evidence Constitutional Reference No 1 of 1977 [1977] PNGLR 362.
The courts have been careful to ensure that s 42(2) has become a meaningful right for all persons. In 1983 Pratt J, mindful of need to avoid the reduction of s 42(2) “to mere ritualistic verbiage” (The State v Silih Sawi [1983] PNGLR 234, 237) cited a passage from Andrew Chalmers & Weisbrot Criminal Law & Practice of PNG referring to Constitutional Reference 1 of 1977, (above) which described the relationship between the judicial discretion to reject evidence under the Common Law, and the Constitutional power under s.57-:
“The court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the Court. Failure to comply with the provisions of s 42(2) of the Constitution, for that reason alone do not render subsequent admissions by an accused person necessarily inadmissible. However, the Court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s 57 of the Constitution to exclude the admission. Upon the facts of a case, the Court may very well feel bound, as the only way to protect the accused’s rights, to reject an admission obtained in consequence of the breach.” I cited Criminal Law & Practice of PNG at 361.
The method of exercising the discretion is the question of forming:
“a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused” (McDermott v R (1948) 76 C.L.R. 501, 513, per Dixon J.). R. v. Skelly [1965-1966] P.N.G.L.R. 105, 107. See Chalmers, Weisbrot and Andrew Criminal Law and Practice of PNG 2nd edition p.223.
For example, if the constitutional caution was given, but the accused was not given a real chance to get in touch with a lawyer, or his relatives, the discretion may well be exercised to reject the tender of the record of interview, as it was in The State v. Joseph Maino [1977] PNGLR 216, 218-221. In those cases where the accused is perfunctorily told of his right to have a lawyer or friend present and immediately after the interrogator launches into the interview, it becomes meaningless to talk of a right - it becomes nothing more than mouthing a formula. An accused, or a suspect has to “be given a proper chance to decide whether he wants to exercise [the right under s 42(2)] or not and if he does, a real opportunity to exercise it in practice” see Schliebs v Singh [1981] PNGLR 364, 367, per Miles J.
The passage of Miles J, above, was referred to by the Kidu C.J. in 1986 in The State v Wangabin Tonieng and 2 ors Unreported Judgment N542 p.4. In that case the accused was interviewed over six hours after being taken into custody and was only informed of his rights under s 42(2) of the Constitution towards the end of the interview, and not given a chance to exercise them. The Chief Justice did not admit the Record of Interview at that stage of the case.
This direct consideration of the impropriety of a violation of Constitutional rights may be contrasted with the approach which involves an incorporation of the tests in McDermott v R (1948) 76 C.L.R. 501, which has been referred to above, and the test in R v Lee [1950] HCA 25; (1950) 82 C.L.R. 133.
McDermott J in The State v Mana Turi used a passage from the Australian High Court decision to create a link between the pre-Independence Law and post-colonial law. His Honour approved of the judicial approaches described in R v Lee [1950] HCA 25; (1950) 82 C.L.R. 133, 154-:
“It is indeed, we think, a mistake to approach the matter by asking 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 to Street, J. (as he then was) in R v Jeffries [1946] NSWStRp 54; (1947) 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 R (1948) 76 CLR 501 at 51.
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.)” The State v Mana Turi [1986] Unreported Judgment N579 per McDermott J. at p8.
With respect, I do not agree that the rights given in s 42(2) of the Constitution should be qualified in such a manner. Although s 42 is part of “Subdivision C- Qualified Rights” it is not subject to any general qualification, as say section 43 Freedom from Forced Labour is by s 43(2)(f), or section 44 Freedom from Arbitrary Search and Entry is by virtue of s 44(6). section 42 is not qualified by section 38, and must be given its fair and liberal meaning (Constitution Sch 1.5).
In The State v Konts Kot [1987] Unreported Judgment N623, King AJ. said at page 6-:
“Section 42 is a beneficial provision and should be construed liberally infavour of the citizen ...”
With respect, I agree with His Honour. In that case the accused had been brought to the police station the day before the interview, and kept overnight in the cells. He was not advised of his constitutional rights until the end of the interview. King AJ. regarded this as a clear breach of s 42(2) of the Constitution, and rejected the record of interview.
There are other instances of the National Court dealing directly with violations of s 42(2) of the Constitution without the benefit of the balancing of interests that is seen in the Australian High Court cases.
One particular fact situation all too frequently faced by judges these days is seen in records of interview in which the accused is given the constitutional caution in terms of s 42(2), but the question is then asked, “do you want to see your lawyer (or wantok) now, or later?” The answer is invariably given as “later”, and the interview goes on.
Although s 42(2)(b) qualifies the words “shall be permitted .. to communicate without delay etc” with the words “whenever practiceable”, it is often apparent from the circumstances - location and time - that the “now or later” question is employed as a device to strip a suspect of his or her right to access to a lawyer or friend.
The National Court has been firm on this matter. In The State v Paro Wampa and five ors (1987) Unreported Judgment N599 the Deputy Chief Justice said-:
“... the police has a duty, having explained his rights to see a friend, a member of the family or a lawyer, to explain to the person arrested or detained that he had a right to communicate with any of these people without delay. The provision itself also sets out at what point in time he should be permitted to communicate. This is indicated by the words “without delay”. When those words are read together with the whole of s 42(2) of the Constitution, this must mean that he be permitted to communicate with any of those people at that point in time. This effectively means that before he is questioned any further about his participation in the crime, it is his right to communicate with any of those persons named. It is clear from the reading of this subsection that the right to be informed and the right to communicate without delay with any of those people must be given at the same time” (per Kapi DCJ. at p.5).
The Deputy Chief Justice, in the exercise of his discretion, indicated he would reject the record of interview because the accused had been kept in custody for three weeks, was not allowed to see his relatives, and did not have his s 42(2) rights given to him. But the Deputy Chief Justice also indicated he would reject the record of interview on the basis that when the s 42(2) rights were administered to the accused the form of the question misled the accused on the proper choice he had between the right to communicate, and the right to waive the opportunity to do so.
After I read this judgment aloud in court Mr. Koeget kindly reminded me of the case the State v Kevin Evertius and Thomas Kundi, a judgment of Pratt J. (1985) Unreported Judgment N 504(M) in which His Honour said that the accused carried the onus of showing a constitutional violation on the balance of probabilities in these cases. Evertius and Kundi drew my attention to John Alex’s case (1983) Unreported Judgment N419, in which Kapi DCJ. described the nature of s 57 of the Constitution and power to exclude evidence obtained in violation of Constitutional Rights. Another case cited with approval in Evertius and Kundi was The State v Karara Peter (1983) Unreported Judgment N438(M), Kidu CJ. In that case the accused made admissions and then was formally cautioned. The Chief Justice said (at p 4):-
“The whole process makes a mockery of s 42 of the Constitution and the Judges’ Rules (become) meaningless and if I allow the record of interview into evidence I would be condoning the flouting of these well-established Rules and the guarantee of rights by the Constitution of Papua New Guinea.”
Over the years there has been a hardening of the judicial approach to matters relating to the s 42(2) Constitutional caution. In my view this is a sign of the times. The allegations in the media of police killings, the burning of houses, punative raids, and the general pillage of rural communities by state authorities are now frequent. Many civil cases brought against the State seeking damages for state violence are settled out of court. There seems to be an impotence amongst many lawyers to bring challenges before the courts in respect of the more serious and notorious human rights violations. In these circumstances and words of Prentice DCJ. in Constitutional Reference No 1 of 1977 may not be inappropriate. His Honour said-:
“I feel that in the present circumstances Constitutional Rights can be safeguarded by the courageous and firm exercise in appropriate circumstances, of the provisions of ss 22, 57, 58 and possibly of s 23. I have no doubt the National Court judges will exercise them. But the Constitution is ambulatory, in the sense that it will continue to exist to cover the conditions of society that develop through the decades. If situations develop in this country as they did apparently in the United State of America such as to militate against the enjoyment of Constitutional Rights, and the sanctions that already exist in s 23 prove inadequate to the times, I would not take the decision of this Court now along the lines I suggest, to preclude the possibility that our successors in this Court might well feel free then to discover a “gap” or “lack” which required the devising of further supporting machinery or procedural laws under s 22.” Reference No 1 of 1977 [1977] PNGLR 362, 380, per Prentice DCJ.
The facts of the present case show that the accused made a verbal admission to the police at Ensisi Valley. He was then taken to Boroko Police Station. Although Sgt. Chinau maintained that he had not arrested the accused at this point of time, I do not believe that the accused would have been free to leave if he wished to leave. Senior Constable Gandari confirmed this view in his evidence in response to questions I asked him:
Court:
Q: hen he came in [to the Sthe Squad Office] did he appear to be in custody; in the control of the police?
A: Yes.
Q0ټ҈  he hied t away, or esor escape cape wouldwould you have stopped him?
A: &ـ Y60; Yes.
Persons can only be ted whey armally deprived of their libertyberty under section 14 of the Arrest Acst Actt, and so it is unalwful for the police to “detain” a person short oest: Songke Mai and Gau Gau Aui (1988) Supreme Court Unreported Judgment SC 348. The accused was being unlawfully held by the police.
Sgt. Chinau was firmly of the view that he could interview the accused first and then administer the constitutional caution. This was wrong. The National Court has made its views very clear on the effect of s 42(2) of the Constitution-:
“This effectively means that before any questions are asked about a persons’ participation in a crime, he is to be informed of his rights” (emphasis added).
See The State v Paro Wamp and five ors (1987) Unreported Judgment N 599, per Kapi DCJ. at 3 cited in The State v Konts Kot (1987) Unreported Judgment N 623, per King AJ. at 6.
It is perhaps necessary to look at the whole of what the Deputy Chief Justice said, because it is possible by the use of selective quotations from His Honour’s judgment to come to different conclusions about what the rules are. His Honour said in relation to the s 42(2) caution-:
“It is the duty of the police under this provision to firstly, to inform the person arrested or detained of his rights under the section. A person is said to be arrested when he is charged with an offence and is taken into police custody. A person is detained when he is taken into police custody in connection with an offence but has not yet been charged with an offence. In both instances, a person loses his liberty. The need to inform a person of his rights under this provision arises at the point he loses his liberty. This is made clear by the words “and shall be informed immediately on his arrest of his rights under this subsection.” This effectively means that before any questions are asked about a person’s participation in a crime, he is to be informed of his rights. There is a practice amongst some policemen that the need to inform a person of his rights arises at the time of the record of interview. There may be cases where a record of interview is conducted at the same time as arrest or detention. If this is the case, then that is the proper time at which to inform the person of his rights. However, on other occasions, a person may be arrested or detained for several days or weeks before a record of interview is conducted. The need to inform the person of his rights arises at the time of his arrest and detention and not at the time of the record of interview. The police should be made aware of this because if there is a breach of this fundamental right, not only is there danger of rejecting the record of interview in a trial but he may be liable for sanctions under s 23 of the Constitution and compensation claims under s 58 of the Constitution.
The State v Paro Wampa and five ors (1987) Unreported Judgment N 599 p 3 (emphasis added).
Although it is now clear from the majority decision in Songke Mai and Gai Avi (1988) Supreme Court, Unreported Judgment SC348 per Kidu CJ, Kapi DCJ and Cory J., that police detention short of arrest is illegal, the essence of what the Deputy Chief Justice said in Paro Wamp is that when persons loose their liberty by being taken into police custody in relation to an offence, then the need to inform them of their rights under s 42(2) arises.
This principle should not be confused with those cases where the record of interview is conducted at the same time as the arrest is made, or more accurately a person writes or makes a statement and as a result the police decide to make an arrest.
That type of situation, in my view is rare. In most cases the police have formed the view that the person is a suspect before they go to the trouble of setting up a formal record of interview, and have no intention of letting the suspect go free. In these cases the full constitutional caution must be administered first.
The s 42(2) right of an accused person or suspect is an important part of the general commitment of the Constitution to protect the individual from the excesses of the state. Those protections were deliberately included in the Constitution by the Constituent Assembly as part of the general rejection by the People of the inhuman practices experienced under colonialism. They are important rights and are available to all - even police-informers. These rights are not to be subverted by slights of hand done with the time of arrest. The issue of when an arrest takes place has been settled by the Supreme Court in Songke Mai and Gai Avi. A person who is “helping the police with their investigations”, or “who agreed to come to the police station to give a statement”, but in reality would not be allowed to leave has either been arrested, or is being held unlawfully.
Accordingly in the exercise of powers under s 57 of the Constitution I order that the written statement not be admitted in evidence.
In respect of the oral admission at Ensisi Valley, in the exercise of my discretion I decline to admit it into evidence. There was evidence that the accused was under the influence of alcohol at the time, and the general circumstances of the consorting squad members going off to an isolated location, and conducting themselves in the manner in which they did, makes me uneasy. There are few things fair about a police-informer. They are generally despised by their own community, and so-called respectable society. But a drunken admission, or even an admission made while under the influence of drugs or liquor has an unfairness about it. It is one step to accept an admission from a person who voluntarily takes a drug, and only another short step to the situation where the drug is administered involuntarily. This is a dangerous area and one in which the courts should proceed with caution. If an accused or suspect is under the influence of liquor and makes an admission then the proper course is to wait until the person has de-toxified, administer the appropriate cautions, and ask them to repeat the statement. A statement taken under the influence of drugs or alcohol can have little value forensically.
I am reluctant to put too much weight on the police account of what went on at Ensisi, apart from the findings that have been made. There were too many inconsistencies in the detailed evidence, too many unanswered questions, for me to feel safe.
Accordingly I hold that the oral statement at Ensisi Valley and the written statement taken at Boroko Police Station to be inadmissible as evidence.
There is one collateral matter I wish to address. The current law on records of interview is based up a nineteenth century technology - that a record is made of an interview with the suspect, and is committed to paper by the use of a pen. There has been some variation to this procedure with the advent of the typewriter, although in my view that has only slowed the forensic process down.
In other jurisdictions police agencies are finding that if they tape-record, or video-record interviews there are far less challenges to the voluntariness of admissions, and that their conviction rate increases. Perhaps a video interview room could be set up in the main centres in this country. Video-recording is also useful to document identification parades. In other places interviews could be recorded on tape-recorders.
Lawyer for the Accused: Public Solicitor
Lawyer for the State: Public Prosecutor
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