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State v Rupen [2012] PGNC 349; N4818 (2 October 2012)

N4818

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 260 OF 2011

THE STATE

V

EPOSIA RUPEN

Kokopo: Lenalia, J.
2012: 25th Sept. & 2nd Oct.

CRIMINAL LAW – Stealing with actual violence – Plea of not guilty – Trial – Evidence on trial – Criminal Code s.386.

CRIMINAL LAW – Stealing with violence – Two charges – Trial – Trial on voir dire – Whether record of interview conducted with accused should be accepted into the State's evidence.

CRIMINAL LAW – Record of interview – Admissibility of – Voir dire – Standard of proof – Whether admission made voluntarily – Particulars of assault particularized in the Notice of voir dire.

EVIDENCE – Records of interview contains admissions – Discretion to exclude – Impropriety of police interviewing officer and his corroborator – Accused assaulted and intimidated immediately after his arrest – Accused assaulted and intimidated and undue pressure applied to obtain record of interview.

PRACTICE AND PROCEDURE – Admissibility – Discretion – Record of interview – Admissibility of – Record of interview rejected.

Cases cited

R v Kuras [1964] PNGLR 18
The State v Kwambol Embogol (1977) N91
Regina v Kar Moro [1975] PNGLR 14
The State v Allan Woila [1978] PNGLR 99
Tapea Kwapena v The State [1978] PNGLR 316
The State v Angela Colis Towavik [1981] PNGLR 140
The Sate v Kusap Kei Kuya [1983] PNGLR 263
The State v Joanes Mesak (2005) N2853
The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622
The State v Raphael Walimini (2004) N2621).

Counsel

Mr. L. Rangan, for State
Mr. C. Akeiya, for Accused

2nd October, 2011

1. LENALIA J: The accused entered a plea of not guilty to two counts of armed robbery contrary to s.386 of the Criminal Code. The offence was committed at Napapar No.5 village Keravat, Gazelle, District, Rabaul East New Britain Province. It was committed on the afternoon of 1st December 2010.

2. Before the trial of these cases commenced, Mr. Rangan of counsel for the State indicated that, they did not have any evidence except for the record of interview and the prosecution would mainly rely on police officers who conducted the arrest and the record of interview with the accused.

3. Three witnesses were called. I will introduce them as I go through this discussion. In the course of Sergeant Dorcas Marnakat's evidence, the record of interview was sought to be tendered through this witness because she was the interviewing officer of this case. Mr. Akeiya of counsel for the accused objected to the tender of that document on the grounds that prior to the record of interview, the accused had been badly assaulted, threatened and intimidated and he was under duress when the record of interview was conducted. The defence filed an Amended Notice of Voir Dire on 13th August 2012.

4. Immediately after the objection was made, the voir dire trial began. The evidence on the voir dire came from the three witnesses called by the prosecution and the defence evidence. Evidence by Sgt. Marnakat shows that she was the interview officer of this case and Constable Nicholas Taulo was her corroborator. Sergeant Marnakat is the Officer-in-Charge of the Criminal Investigation Office in Keravat Police Station.

5. It is clear from her evidence that after the accused was arrested on 7th January 2011, he was taken straight to the police station then into the C.I.D office and she was asked to conduct the record of interview on that same day.

6. Asked in chief and cross-examination if she or her corroborating officer ever assaulted, intimidated or threatened the accused, the witness responded in the negative. She established in cross-examination that, the record of interview was conducted at about 2.55 pm. She was asked if she knew that at the time the accused was arrested, he was assaulted by policemen who arrested him at Tokarongon junction. The witness replied she did not know as she was not with the policemen who arrested the offender.

7. She was asked if she saw any blood on the body of the accused or any unusual signs on or around his face. The witness said, she did not see anything. She was asked why the accused did not sign the record of interview. She said, it was up to him if he wanted to he could sign.

8. The second witness on this case was Senior Constable Nicholas Taulo. This witness's statement was sought to be tendered but, it was objected to by the defence. The court up-held such objection. It is clear from this witness evidence that, he was with the group of policemen who went to Tokarongon junction where they arrested the accused.

9. He was asked if any of the policemen assaulted the accused on the scene of his arrest. He said, when the police came, the accused surrendered himself and he hoped on the police vehicle and they took him away to Keravat police station. This witness denied assaulting the accused where he was arrested and at the C.I.D office.

10. The third and last witness was Allan Anea Juniour. He is a Reserve Policemen who went with the group of policemen to arrest the accused. All this witness said was he denied the fact that he and Senior Constable Tauolo assaulted the accused during the record of interview. He said when the accused was put in the cells, he left and what happened after this, he did not see.

Defence evidence on Voir Dire

11. The accused gave evidence and called one witness. In case of the accused he said, he recalls that on the date he was arrested (7.1.11), he was in a house at Tokarongon junction when the police came and made noises in front of that house.

12. He said after the police had made known their presence, they fired warning shots into the air. He said the allegation by police that, he surrendered is not true and policemen came in very drunk and disorderly to where he was arrested.

13. After firing the warning shots, they called out for the accused. He answered and said, he was present. Policemen beat those who were present with the accused and asked again if the accused was around. He answered again and said, he was present and then they assaulted him and kicked him. He fell to the ground and they then tied his legs and hands and picked him up and threw him into the police vehicle.

14. He said, when they took off, the vehicle did not run fast. According to the accused evidence, he was booted and assaulted in the vehicle by those who sat with him. When they arrived at Keravat police station, police removed the ropes that were tired around his hands and legs and he was pushed into the police station office then into the cells.

15. An interesting part of the accused evidence is that, right from the moment he was arrested at Tokarongon junction to the police station general office, he was never informed about what trouble he had committed.

16. He said, when he was being interviewed by the investigating officer in the CID office, though he was asked to see a lawyer, he was not given the time to see one so that he could tell them about what the policemen had done to him. He said, in the office, he was assaulted with a gun butt and threatened to shoot him because the gun was cocked.

17. The accused further said, while in the process of the interview, he had injuries on his head and face and he loss his two teeth and he said he suffered a lot of pain. When he was asked about the trouble, he said, he did not know anything about such trouble. The more he denied, the more he was beaten up. He suffered great pain and said he almost died. After he was interviewed, he was taken to the cells and locked up.

18. Asked in chief about the injuries to his face and head and asked if he was taken to the hospital, the accused said, after the interview, he asked the investigating officer to be taken to the hospital but his request was ignored. Asked about those persons who were beaten together with him at Tokarongon junction. He said, those who were with him were his daddy, his brother and sisters.

19. He was asked if he recognized the policemen who assaulted him. He named them as Kilala, Nicholas Taulo, Junior Allan and Tourima.

20. Still in chief, he was asked if it was true if he surrendered to police. He replied in the negative. Asked about the nature of threatening, the accused said, policemen pointed guns at him and he said, they accused him of being involved in the armed robbery offences he is now charged with. He further confirmed what he said in chief that, while being interviewed, he was further assaulted by policemen Nicholas Taolo and Allen Juniour.

21. He was asked as to what was the nature of the injuries he received. The witness rose and stood up in the witness stand and showed scars on his face and head and the two teeth. In relation to why he did not go to the hospital, the accused said, when he asked to be taken to the hospital, the policemen and the policewoman refused to take him to the hospital.

22. In cross-examination, the accused was vigorously cross-examined. He was asked if he spoke to his mother before he was interviewed. He replied, he did not speak to his mother nor to his brother. It was further put to him if prior to being interviewed he spoke to his mother or brother. He was asked if he was at all told to see a lawyer. He said though he was told about seeing one, was never given time to see one. He was asked if he saw a black skinned fellow where he was arrested and if he knows his name. The witness admitted he saw him but does not know his name.

23. He was asked about the injuries he supposed to have received and why go to the hospital late on 13.8.11. He said, by then he was in custody and he did not go soon after he received injuries because he was refused access and by the time he went to hospital his injuries had been healed. He was asked how the doctor was able to identify the injuries. He said, he identified the affected area on his face and head to the doctor. He was further asked about the injuries above his eyes and if they are now healed. He said sometimes the affected part cause pains.

24. On 25th last month, the accused called his second witness. The witness is Freddy Nason. This witness was on the scene of arrest or at Tokarongon junction. He said, on the 7th January 2011, he was at the scene where police came to arrest the accused. He confirmed that police fired into the air and assaulted them. They made them stood on the line and they called for the accused.

25. While still in the line, they started to assault Eposia. He said one policeman shot at his brother's leg with a gun. This witness said, when he went to Keravat police station the next day, he asked to see the accused. He said, when the accused came out from the cells into the general office, he could not recognize him because his face and head were swollen all over.

26. In cross-examination, it was put to the witness that he comes from Napapar No.5 but what was he doing at Tokarongon junction where the accused was arrested. He said, he went there with others to harvest coconuts. He was asked how many policemen went to the scene of arrest, he said, he recalls that there were seven (7) policemen all in a police vehicle. Asked what type of vehicle was it, he said a Toyota Land cruiser open back. This was the end of the defence case.

Submission on Evidence

27. Mr. Akeiya of counsel for the accused made a lengthy submission on the status of the evidence on the voir dire. Counsel for the accused asked the court to take the evidence of the accused on this voir dire as truthful and for the court to exercise its discretion to reject the record of interview that was sought to be tendered by the prosecution.

28. Counsel submitted that it is better to refuse to accept the evidence sought to tender as there is allegation against the record of interview such that it should not be accepted into evidence.

29. For the prosecution, Mr. Rangan submitted that, there was no reason why Detective Sergeant Dorcas Marnakat and Nicholas Taulo could make up what is contained in the record of interview as that is the only evidence the State would rely on.

Relevant law on voir dire

30. It is established law now that any confessional statement or record of interview was obtained involuntarily, it is in the discretion of the Court to either admit or reject whatever document being sought to be tendered. Section 28 of the Evidence Act governs receipt of confessional statements. It says:

"28 Confessions induced by threats.

A confession that is tendered in evidence in any criminal proceedings 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." (Emphasis added).

31. The standard of "proof" required of the prosecution to prove voluntariness in a voir dire trial is that of "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).

32. A voluntary statement is one made in the exercise of a free choice to speak or to remain silent. It is an essential condition of voluntariness that the accused must appreciate that he or she is under no obligation to speak, that they are free to speak or not to speak: R v Kuras [1964] PNGLR 18 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.

33. An involuntarily statement is one made because the accused is overborne (repressed by power or authority).The above line of case law authorities say that it does not matter by what means the accused was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistence or pressure, it cannot be voluntary: The State v Kwambol Embogol (1977) N91. If the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 of the Evidence Act. (See, The State-v-Colis Towawik [1981] PNGLR 140).

34. On the onus of proof, does the accused have to prove that the statement was not made involuntarily? Or does the prosecution have to prove that it was made voluntarily? The rule operates in this way. First, the accused must adduce evidence that the balance of probabilities supports the allegation of involuntariness. If that burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible.

35. If the burden is discharged, the onus then shifts to the State to negate the allegations beyond reasonable doubt: State-v-John Michael Awa & Others (2000) N2012. (See also State-v-David Yakuye Daniel (2005) N2869, State-v-John Michael Awa and Others CR No 905 of 1998, 15.05.00, The State v Lucas Soroken and Others (2006) N3029). As to the general principle that, it is the State that must prove voluntariness beyond reasonable doubt, see The State-v-Allan Woila [1978] PNGLR 99 and The State-v-Kusap Kei Kuya [1983] PNGLR 263.)

36. I invite both counsel to look at the law on the shifting burden of proof in voir dire rulings in cases such as in State-v-John Michael Awa and Others CR No 905 of 1998, 15.05.00, referred to in State-v-John Michael Awa & Others (supra) and State-v-David Yakuye Daniel (2005) N2869 and State-v-Lucas Soroken and Others (2006) N3029.

37. As to the general principle, it is the State that must prove voluntariness beyond reasonable doubt, see State-v-Allan Woila (supra) and State-v-Kusap Kei Kuya (supra).

Status of this case

38. In this case, I have heard and weighed the evidence by both the accused and that of the prosecution. To start with, the accused named the policemen who allegedly assaulted him as Constable Juniour Awa, Constables Taolo, Kilala and Senior Constable Nicholas Taolo. He named those in the Amended Notice of voir dire. The accused had particularized the nature of the assault committed on him.

39. Something interesting about his evidence is that when he was arrested, on the date the same date he was interviewed. There is evidence on this voir dire that when the accused was arrested by about 8 am then between 1pm and 3pm the record of interview was conducted. There is evidence of the accused being assaulted in the morning at Tokarongon junction right to Keravat police station.

40. The accused evidence is confirmed by that of his witness Freddy that, on the scene he was together with the accused. He confirmed police brutally assaulted the accused. He confirmed the accused evidence that police fired warning shots into the air and later asked for the accused. Freddy saw them assault the accused and then bind his legs and hands together and throw him into the back of the police vehicle. Next day when he went to see the accused, he saw the accused face had changed and was swollen. This in my view establishes on the balance of probabilities that the accused arrest was not the result of a normal surrender.

41. Section 28 of the Evidence Act says that where a confession is induced by threat or promise by a person in authority and such confession is made after such threat or intimidation cannot be received in evidence unless it is shown otherwise.

42. In this case, it's not about dealing with a confessional statement but the record of interview. I am of the view that the accused was highly intimidated, threatened before the record of interview was taken. What happened was in breach of law contained in s.28 of the Evidence Act and s.42(2) of the Constitution where although he was told to see a lawyer, he was never afforded the means for which he could talk to his lawyer.

43. I am more than satisfied that the record of interview on this case was made involuntarily because the accused was overborne (repressed by power or authority) or intimidated by the continuous assault on the accused from his arrest to and on the same date, such record of interview was conducted. It does not matter by what means the accused was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistence or pressure, it cannot be voluntary: The State v Kwambol Embogol (1977) N91. If the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 of the Evidence Act.

44. There is evidence that, during the record of interview, he was further assaulted. The evidence by the accused witness of not recognizing the accused when he saw him the next day at the said police station at Keravat is evidence that the accused was actually assaulted very badly. I am convinced and satisfied that, the accused was under duress and was highly intimidated and reasonably believed that if he did not admit to the offence, he would be further assaulted. I reject to accept the record of interview into the State's evidence.

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