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State v Kanailom [2008] PGNC 8; N3273 (5 February 2008)

N3273

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1618 OF 2003

THE STATE

V

EREMAN DONALD
KANAILOM

Kokopo: Lenalia, J.
2007: 18 & 19 October
2007: 11 & 15 November
2007: 20 December
2008: 5 February

CRIMINAL LAW – Sexual offences – Sexual penetration of blood relative – Aggravations – Incest by men of daughter – Five counts rape – Five alternative counts of incest – Persistent sexual penetration – Pleas of not guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000.Sections 223 & 347

CRIMINAL LAW – Rape and Incest aggravations – Trial – Voir Dire – Evidence – Standard of proof – Whether accused signed the record of interview voluntarily or by duress.

CRIMINAL LAW – PRACTICE & PROCEDURE – Conduct of record of interview – Allegations of accused remaining silent during conduct of the record of interview – Nature of assault particularized in Notice of Voir Dire.

CRIMINAL LAW – PRACTICE & PROCEDURE – Allegations of breach of Section 42 (2) of the Constitution – Allegations not substantiated and were not pleaded in the Notice of Voir Dire.

CRIMINAL LAW – A party who alleges breaches of Constitutional rights must properly put his/her case to the State witnesses so that the State will be ready to meet such allegations on trial of the voir dire or trial proper. Failure to plead such allegations in the Notice of Voir Dire is fatal to the defence case be it in a trial proper or voir dire trial.

Cases cited:

Papua New Guinea Cases

R v Kar Moro & 16 Others [1975] PNGLR 14
Constitutional Reference No.1 of 1977 [1977] PNGLR 362
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Paro Wampa & 5 Others [1987] PNGLR 120
The State v John Ave & 2 Others (2004) N2622
The State v Raphael Walimini (2004) N2661
The State v Joanes Mesak (2005) N2853
The State v Towes Minmin (2005) N2915
The State v John Warkaul & Others – Unreported and unnumbered.

Overseas cases

Browne v Dunn (1893) 6 E.R 67
Reid v Kerr (1974) 9 S.A.S.R 368
McPearson v R [1981] HCA 46; (1981) 147 C.L.R 512
McDermott v The King (1948) 76 C.L.R 501

Counsels
Mr. L. Rangan, for the State
Ms. S. Maliaki, for the Accused

5 February, 2008

1. LENALIA, J: The accused, Ereman Donald Kanailom of Kunakunai village in the Kokopo District is charged with five counts of rape and five alternative counts of incest. These offences are contrary to Sections 223 and 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Evidence

2. On arraignment, the accused entered pleas of not guilty to each of the charges on the indictment. During the trial, a number of witnesses were called. Henry Luana Liuta currently a ward councillor of Kadaulung Ward on in-land Baining Local Level Government gave evidence of his observation and information he collected from reputable persons in the community complaining to him that, the accused was having sexual relationship with his daughter. Amongst those who complained to Councillor Henry, was the accused’ wife Adie Balus.

3. Originally, this witness came from Ralalar village in the Gazelle District but his father moved to Kadaulung in or around 1973 or 1974. They have permanently resided at Kadaulung ever since. He is currently self-employed in the field of carpentry and joinery helping in his fathers business to date. He graduated from what used to be Malaguna Technical College with a trade certificate some time back.

4. According to Henry, when the accused wife came and lodged a complaint to him, he commended the accused’s wife because some people in the community had earlier complained to him that, the accused was having an incestuous relationship with his daughter and those who reported to Henry said that it was obvious from the behaviour of the accused to the victim.

5. After receiving these reports, Henry summoned his Ward Committees together and had a meeting with them. The committee reached a resolution that, the matter should be referred to the Sexual Offences Squad (S.O.S) in Kokopo. In fact the whole committee together with Henry came to lay the complaint on behalf of the accused’s wife.

6. After, they had reported to the police, Henry and his committee even assisted the police by providing transport to the police to where the accused was and had him arrested. Police investigated and charged the accused for the offences of raping his daughter.

Voir Dire

7. Rolland Funmat was a Sergeant in the Police Force at the time the accused was arrested. He is no longer in the Police Force now. He investigated the offence and he was the interviewing officer in this case. The witness said, before laying the charges against the accused, he obtained statements from witnesses including the victim. Then being satisfied of sufficient evidence put before him during investigation, he conducted a record of interview with the accused on 31 June 2003. Detective Constable Orim Konge corroborated him during the record of interview.

8. Sergeant Funmat’s evidence is that before, he commenced the record of interview with the accused, he cautioned him under s.42 (2) of the Constitution and gave him the right to see a lawyer of his choice or a member of his family. The accused indicated that, he wanted to talk to his brother Betuel after the record of interview was completed if his brother came to the S.O.S office at Ralum. There was no evidence to show if the accused brother ever came to see him at the police station during the period within which he was remanded in custody.

9. Asked in chief and cross-examination about alleged impropriety put against him in the Notice of Voir Dire, the witness said, all that was recorded in the record of interview was voluntarily made as the accused made confession about him having an incestuous relationship with his only daughter Nancy Kanailom.

10. He further stated that there were no threats and no intimidation of any sorts used against the accused to elicit what was being said by the accused in the record of interview. This witness was asked in cross-examination if it was true that, the accused had refused to sign the record of interview and as the result of refusing to sign the record of interview and the statement he then assaulted the accused in order to force the accused to sign.

11. The witness said, the allegations levelled against him by the accused were totally false and far from the truth as he recalls that, he and his corroborator had conducted the record of interview in a fair and lawful procedure. He was asked if he punched the accused on the left-eye brow. The witness said, the accused fully cooperated with him and his corroborator until the record of interview was completed. Then that after the record of interview was completed, he asked the accused to sign it and he did sign voluntarily. Evidence by Sergeant Rolland Funmat reveals that, the signing of the record of interview took place three days after it was conducted.

12. He was further asked if he punched the accused on his mouth causing the accused to fall to the floor. The witness said, he did not punch the accused and to punch a person of the accused built would have required a person with an immense physical built to hit the accused causing him to fall on the floor. The witness denied assaulting the accused in the manner stated by the defence in the Notice.

13. The next witness called was the corroborator Orim Konge. He was asked by Sergeant Funmat to corroborate him in the record of interview with the accused. He said during the interview, the accused fully admitted that it was true, he had had a sexual relationship with his daughter. According to Orim Konge, the accused is said to have admitted to having abused his daughter for over three years.

14. In cross-examination, Orim was asked about the allegations of assault, intimidation and threats made against the interviewing officer. The witness said, such allegations are all lies. Orim stated that, in the course of the interview with the accused, no threats and no promise were made to the accused and the record of interview was done in an orderly and usual customary manner in which, the accused was given the usual caution followed by introduction of the two officers present on the record of interview. Then the record of interview commenced with questions and answers from the accused.

Defence Case

15. Two witnesses were called by the defence. The accused himself said in evidence that in the month of April 2003, the policemen came to his house at Warongoe settlement and arrested him and brought him down to the Police Station at Kokopo. The accused does not recall the date on which he was arrested. He says, the policemen who arrested him were members of the Task Force and after his arrest, they did not attend to his case for a long time.

16. Then sometimes in late May or early June of that year, he complained to the cell guard. That cell-guard probably saw C.I.D members about the accused complaint. He came back and told the accused that, he should wait for further investigations on his case.

17. It happened one day still in the month of June that, the accused saw a policeman whom he knows and the accused complained to him about his long remand period in the police station without being interrogated. This policeman whom the accused knew went to the C.I.D office and told the Officer-in-Charge of that office about the accused complaint. Unfortunately, the accused did not give the name of the policeman whom he complained to.

18. It is the accused’s evidence that on one Saturday morning, the arresting officer Sergeant Rolland Funmat came to the cells and took him out to the C.I.D office to conduct the record of interview with him. When they came into that office, the corroborator Constable Orim Konge was there standing near the door way. He was offered a chair to sit on. When he sat down on the chair, he heard Constable Orim Konge said that, he was going back to the Police Barracks.

19. The accused said in absence of the corroborator, Sergeant Funmat then commenced the record of interview. He said when the record of interview commenced, there were only two of them. That is to say the accused and Sergeant Funmat. The accused said, he was not warned nor informed of why the police were holding him in custody for. He said, when he was asked the questions in the record of interview, he denied. According to this witness, the record of interview was completed at 2 pm that day. He said he did no sign the record of interview on the date it was completed.

20. Then on the third day, the accused then recalls that it was the 26th of that same month about 3 pm, he was brought back to the C.I.D office. When he was inside that office, he was invited to take his chair and the arresting officer is supposed to have taken a statement from him. After completing that statement, he was asked to sign it quickly because, Sergeant Funmat is supposed to have told the accused that, he was in a hurry to go to his house.

21. Accused said, he told the above officer that, he did not want to sign the statement. The accused evidence shows that, he was forced to sign that statement. In the course of their conversation, the accused said, he told the policeman that, he (accused) should read that statement before signing it. He also revealed that he could not read without his glasses which he did not bring with him. He was then offered one set of reading glasses which was lying on the table. After he read the statement, he found out that the interviewing officer had breached three important factors.

22. According to the accused, the first of those factors was that, he was not given his Constitutional rights. Accused said, when the record of interview was conducted, he was only informed that, if he wanted to, he could see a member of his family. Accused further alleged that, all the wording in the formal caution in the preamble of the record of interview was unilaterally done and typed by the interviewing officer.

23. The second allegation put up by the accused against the interviewing officer is that, on the admissions on the statement and the record of interview, he denied, however, the answers given and written in the record of interview or in the statement were done by the interviewing officer himself meaning to say, the accused had somehow just remained silent. On this part of the accused’s allegation, it would mean and it would seem like, the recorded answers both in the statement and the record of interview, were unilaterally given by Sergeant Funmat and not the accused.

24. The third allegation raised by the accused is on the statement by the corroborator which says, that, he was present at the time the record of interview was conducted. Accused says, the corroborator was not present at the C.I.D office when the interview was conducted.

25. It is the accused’s evidence that, when he indicated his dissent to signing the record of interview and the statement, the policeman who interviewed him got very cross with him and said something to the effect that, who are you to play with the government. Then after that, he went "black out", that is to say after he was punched. That was followed by yet other punches on his mouth. Then the accused said, he went into a coma. He said, this was followed by a further series of assaults on his body.

26. The accused was asked in cross-examination if he had got a medical report to substantiate his serious allegations. The witness replied that, he did not obtain one as the policemen who were on duty were not willing to assist him. He was asked as to when he was taken into the custody of the Correctional Services. He said, he does not now recall but, it was sometime in late 2003. He was asked if he reported the assault to the Correctional Services officers at Keravat. The accused said, he did not report anything as by then he was no longer suffering from the assaults he sustained at the police station.

27. Asked if he was assaulted during the record of interview. The accused replied that, nothing was done to him during the time the record of interview was conducted. Further asked if the interviewing officer had just made up the stories, the accused answered in the positive. He was asked if he had actually seen the record of interview. The accused said, he only read it at Keravat jail. In his evidence, the accused did not however give any reasons or motives as to why Sergeant Funmat could have told red lies to the Court about the accused involvement in the charges on the indictment. The accused did not however give any reasons or motives of why Sergeant Funmat could have told lies to this Court.

28. He was further cross-examined as to why he could not raise the allegation of brutality when he was first remanded. He answered by saying that, by then he had not seen his lawyer and as well as that, his file was with the lawyer in town. The accused was further asked as to how it could be that, the corroborator just made up the story about his presence during the record of interview. The accused answered that, the interviewing officer made the story up to support the record of interview. He was asked if he saw the corroborator sitting in the office when the record of interview was being conducted. The accused said, he only saw him stood near the door then he left for the market.

29. The next defence witness on the voir dire trial was Israel Kanailom. He is none other than the son of the accused. Israel said on the 29 June in 2003, he came to Kokopo police station to see his father (accused). He said when he came to the counter and asked the duty policemen if he could see his father in the cells. He said, he was given an ok and he went direct to the cells where remand people are kept.

30. He said, when his father approached him, he could not recognize him. Asked in chief why he could not recognize the accused and Israel replied that, his father’s face was swollen all over. He asked the accused what had happened to him. The accused is supposed to have told Israel that, he had been bashed up by C.I.D officers. It appears from this witness evidence that, somehow, the duty policemen could have allowed him access right up to the cells where arrested persons are kept then he just stood for a few minutes talked to the accused and gave him some food then, a policeman came and escorted him out of that area. No evidence was called to substantiate such piece of evidence.

31. This witness was vigorously cross-examined as to the veracity of his evidence that, he was allowed beyond the general duty counter to go right to the cells where remandees are kept. Israel said when he came into the general duty office he asked to see his father. When he was told that he was in the cells, he asked if he could go to the cells to see the accused. He said, he was allowed to go and visit his father. That was the end of the defence case on the voir dire.

Submissions by defence on the voir dire.

32. Submissions by counsels on this voir dire have been delayed due to counsels not being prepared to address the Court. I heard Ms. Maliaki on Tuesday the 11th of December last year and due to the short service of the written submissions on Mr. Rangan, he applied to do a reply by Wednesday which was the next day. For the accused, Ms. Maliaki submitted that, there is evidence that the accused was assaulted by Sergeant Rolland Funmat.

33. She further submitted that, her client was denied his Constitutional right in that, after he was arrested, he was kept in the cells for two (2) months without attending to his case. She further submitted that, the evidence by both the interviewing officer and his corroborator cannot be believed and the fact that, Constable Orim Konge was not present all the time during the time the record of interview was conducted and there is a high possibility that, Sergeant Funmat actually assaulted the accused.

34. Counsel further submitted that answers to questions 11 to 22 in the record of interview were not answers given by the accused. Part of the defence submission is that, after the record of interview was conducted, the accused was taken out from the cells after three (3) days where he was questioned and was stunned by a blow on his head. He fell to the floor and was further kicked on his ribs followed by a punch on his mouth.

35. Counsel further argued that, the second defence witness must be taken to be a reliable witness as he saw the accused with a swollen face at the police cells here in Kokopo. Ms. Maliaki cited the cases of Regina v Kar Moro & 16 Others [1975] PNGLR 14 and The State v Paro Wampa & 5 Others [1987] PNGLR 120. The earlier case was a case by the pre-independence Supreme Court sitting in Mt. Hagen while the second case the decision by Kapi, D.C.J (as he then was), a case held in Goroka. Both cases address the issue of admissibility and voluntariness of evidence and the standard of proof in voir dire trials.

36. Part of her submission relates to the manner in which her client was interviewed saying the accused was not given the right to see a lawyer of his choice or any member of his family. Counsel submitted that due to the above inconsistencies appearing in the face of the documents intended to be tendered, the record of interview should not be accepted into evidence.

Address in reply to submission on voir dire by prosecution

37. For the prosecution, Mr. Rangan replied by submitting that, the accused is charged with five counts of very serious sexual charges of rape against his own daughter and five alternative counts of incest. Counsel submitted, it is almost impossible for Sergeant Funmat to have type-written the answers to the questions asked in the record of interview.

38. The basis of Mr. Rangan’s submission is that, why did the accused wait until late last year when he filed the notice of voir dire? He asked the Court to view the accused action with great suspicion. Counsel submitted that, if it was true that, the accused was assaulted, that was three days after the record of interview had been completed and therefore the accused was not overborne and thus, the answers to the record of interview could not be said to have been obtained as the result of duress, intimidation, persistent importunity or pressure.

39. Counsel further argued that, the defence had breached the rules in Browne v Dunn (1893) 6 E.R. 67 as the system of justice and fairness requires that one party should not be taken by surprise at the trial on the voir dire or an ordinary trial for that matter. Part of Mr. Rangan’s submission relates to the fabrication of evidence where counsel submitted that, this issue should not be considered at this stage of the trial and it should be left until the trial proper is completed.

40. He cited cases such as The State v John Warkaul & Others and the Australian High Court case of McPherson v R [1981] HCA 46; (1981) 147 C.L.R 512 for the proposition that, whether or not the answers to the questions in the record of interview had been fabricated, was not an issue to be determined on the voir dire, but should be determined by the judge of fact on the trial. I agree with that part of the prosecution submission.

Analysis of the law on voir dire

41. The admissibility of a piece of evidence often depends upon the factual question of how such evidence was obtained. Bearing in mind the Constitutional guarantee of the protection of law under Sections 37 and 42 of the Constitution, the common law practice adopted by Sch.2.2 of the Constitution at Independence Day requires that, where an accused speaks because he was overborne, or that the statement obtained was taken as the result of duress, intimidation, persistent importunity, sustained, undue insistence or pressure the confessional statement cannot be received as evidence: McDermott v The King (1948) 76 C.L.R 501.(See also cases of The State v John Ave & 2 Others (2004) N2622, The State v Raphael Walimini (2004) N2661 and The State v Joanes Mesak (2005) N2853).

42. For this reason if any statement or the record of interview is made under any of the above circumstances, then such document cannot be accepted into the State’s evidence.

43. The common law practice is reflected and featured prominently in Sections 37 and 42 of the Constitution and s.20 of the Evidence Act which provides that:

"28. Confessions induced by threats.

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown."

44. Article 37 of the Constitution provides for the protection of law to every person whether they are in custody in the process of the law and even those who are free and not affected by law. I cite Subsections (1) to (4) of the above Section which states:

"37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution."

45. On the rights of all persons, Section 42 of the Constitution further states:

"42. Liberty of the person.

(1) No person shall be deprived of his personal liberty except—

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

(2) A person who is arrested or detained—

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate 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 adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

(3) A person who is arrested or detained—

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer."

46. The standard of "proof" required to prove voluntariness is "proof beyond reasonable doubt": Regina v Kar Moro [1975] PNGLR 14, The State v Allan Woila [1978] PNGLR 99, The Sate v Kusap Kei Kuya [1983] PNGLR 263, (see also The State v Towes Minmin (2005) N2915), The State v Joanes Mesak (2005) N2853, The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622 and The State v Raphael Walimini (2004) N2621).

47. I had the benefit of the lawyers addressing the Court on the status of the law on voir dire where a piece of evidence is sought to be tendered by the prosecution and where the defence does not wish such evidence to be accepted as part of the State’s evidence.

48. There are two aspects of the defence submission. The first is that the allegations pleaded in the Notice of Voir Dire filed and entered on 13 June 2007 alleges that the interviewing officer assaulted the accused after three days when the accused indicated to such officer that, he did not want to sign the statement and the record of interview because, after reading the record of interview, he did not agree with the answers given in the record of interview and what was contained in the statement.

49. Counsel indicated in her oral submission that, answers to question 11 down to question 22 were not answers given by the accused. The question here is was the accused overborne by means of threats, promise, or was he induced somehow or is there evidence to prove that the answers given in the document sought to be tendered were obtained as the result of duress, intimidation, persistent importunity, undue insistence or pressure.

50. There was evidence by the State that the corroborator was present at the time the record of interview was conducted. However, I find from the evidence that, the alleged assault was not committed on the accused during the period the record of interview was conducted. If the accused remained silent during the time he was being questioned and he gave no answers, it does not make any sense as to why Sergeant Funmat could have recorded answers by himself. The defence submission is that, answers written down from questions 11 to 22 were not given by the accused. To show that the accused is not truthful in this voir dire trial, let the Court quote question 15 and its answer in the record of interview. "What are your children’s names". The answer given by the accused was, "William, Charles. Israel, Nancy, Downer, Ebes and Simon." Where did the interviewing officer get those names from in order for him to put them down on the record of interview?

51. The accused did not give any motive as to why the policeman who interviewed him could have dealt with him in the manner he alleges in the notice. There is no evidence of any such motive from the accused or his son who gave evidence in favour of the defence on the voir dire.

52. The second aspect of the defence submission relates to the accused rights under s.42 of the Constitution. Counsel argued that, because the accused was remanded in custody for two (2) months and two (2) weeks that was in breach of s.42 (2) of the Constitution. Counsel cited cases such as The State v Paro Wampa & 5 Others [1987] PNGLR 120, The State v Mana Turi [1986] PNGLR 221 for the proposition that, where an accused has been remanded longer than required, his or her continued detention without being charged in context of the term "judicial remand" and then have such persons subjected to full questioning in the record of interview, amounts to impropriety which breaches Sections 37, 42 (3) (b) of the Constitution and that the record of interview should be rejected.

53. With respect to this part of the defence submission, I am of the view that, the second allegation has not been properly brought since it has not been pleaded in the Notice of Voir Dire. The voir dire notice contains allegations of brutality by means of assaults and punches on the accused by the interviewing officer. The State has not been given any notice on the second aspect of the defence on trial on the voir dire thereby breaching the rules in the case of Browne v Dunn (1893) 6 E.R 67.

54. The rule in the above case requires that, if there are any types of imputations to be made against a witness, the precise nature of such imputation should be made clear to the witness or the State in this case so that the other party is given the opportunity to meet it. (See Reid v Kerr (1974) 9 S.A.S.R 368 at page 374 and see also Browne v Dunn (supra)

55. In this trial, this Court has discretion to either reject or admit the record of interview which was sought to be tendered. If the Court finds that, the record of interview was obtained unfairly, it should reject it. If I find that the answers given to questions in the record of interview were not preceded by threats, force or inducement, the Court should admit the document into evidence.

56. In Constitutional Reference No.1 of 1977 [1977] PNGLR 362, a five member Supreme Court Judges said that, a Court can reject a confessional statement made voluntarily on the basis that it was unfairly obtained and that failure to comply with s.42 (2) alone does not render subsequent admissions by an accused person necessarily inadmissible.

57. As the Court hinted earlier on the additional submission by the defence that, the accused right under s.42 (2) & (3) were breached, I distinguish the case of The State v Paro Wampa & 5 Others [1987] PNGLR 120 from this case because in that case was the issue of breach under s.42 (2) of the Constitution per se. In the circumstances of the case before me, the defence has filed a Notice of Voir Dire whereby they have specifically pleaded assault after the accused signed the record of interview.

58. I find from the evidence on the voir dire that, the record of interview was not preceded by any threats, promise or intimidation of any sort. It is clear from the evidence of the accused in cross-examination that, he was not assaulted before the record of interview was conducted but three days after the interview had been conducted. The Court cannot believe the defence evidence of this voir dire.

59. The evidence by the defence on this voir dire doest not establish any motive for lying and why the police interviewing officer would assault the accused just to acquire his signature. In R v Kar Moro & 16 Others [1975] PNGLR 14, the decision of the pre-independent Supreme Court by Lalor, J held that a confessional statement can only be accepted as voluntary if it is made from a free will by an accused person. To assault the accused just to obtain his signature on the two documents does not make sense at all.

60. The onus of proving that a confession is voluntary rests with the prosecution and the standard of proof required to establish voluntariness is "proof beyond reasonable doubt": The State v Allan Woila [1978] PNGLR 99, see also The State v Kusap Kei Kuya [1983] PNGLR 263.

61. The Court is not satisfied with the defence evidence on these allegations of impropriety that is to say, the accused allegations of being assaulted two or three days after the record of interview had been conducted. The Court cannot believe the evidence of the accused. I would ask myself a question. Why would the investigating officer ask the questions and answer them by himself. What is the motive when, Sergeant Funmat comes from New Ireland and the accused is from this Province. The evidence by the young son of the accused was not at all convincing to this Court. I view the defence evidence with suspicion.

62. That being the case, the Court will now accept the record of interview as part of the State’s evidence. In his oral evidence, the accused contradicted himself. When he was asked in cross-examination if he ever read the record of interview in the police cells, he answered by saying, he did not read the record of interview until he read it at Keravat jail. Which record of interview did the accused read in the cells which prompted him to refuse to sign? As stated earlier, I conclude that, I cannot accept the defence case and I must order the trial to continue.

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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.