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State v E.T (No.1) [2012] PGNC 350; N5158 (6 September 2012)

N5158

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 302 OF 2010

BETWEEN

THE STATE

V

E.T
(No. 1)

Alotau: Toliken AJ
2012: 04th, 05th, 06th September

CRIMINAL LAW – Evidence - Voir Dire – Objection to admission of Record of Interview – Breach of Constitutional Right to communicate to relative – Constitution, s 42(2)

CRIMINAL LAW – Evidence – Objection to Record of Interview – Unfairness – Juvenile – Accused a Juvenile of 16-17 years of age at time of arrest – No unfairness – Arrest and subsequent Record of Interview conducted fairly under the prevailing facts and circumstance – Record of Interview tendered into evidence – s 63 of Evidence Act Ch. 48; s 3 Juvenile Courts Act 1991

Cases Cited

The following cases are cited in the judgment:

R v. Wendo [1963] PNGLR 217
R v. Ginitu Ileandi [1967-1968] PNGLR 496
The State v. Kwaigo Embogol (1977) N91

Counsel

D Kuvi, for the State
G Pipike, for the accused

INTERLOCUTORY RULING

06th September, 2012

1. TOLIKEN AJ: The accused stands accused of the wilful murder of one Nekeda Seweina on 24th of November 2009.
   
2. The State sought to tender the police Record of Interview (ROI) into evidence. The defence – having previously filed a notice of objection, however, objected to its admission on the grounds that it was unfairly obtained because at the time of the alleged crime and arrest the accused was a juvenile. The defence also argued that the accused was not accorded his right to have access to his relatives.
   
3. Both the State and the defence called witnesses on voir dire and the Court heard submissions from counsel.
   

Issues

4. The issues for the Court's determination are:
   
   1. Was the accused a juvenile at the time of he was interviewed? If he was, was the interview conducted fairly?
      
   2. If the accused was not a juvenile was he sufficiently accorded the right to have relatives present at his interview?
      
5. I will now deal with the issues. But first let me summarize the evidence.
   

The Evidence

6. On voir dire the State called the Wadalei Ward Councillor Mr. Henry Kaisese and the arresting officer Sergeant John Labidi.
   
7. Mr. Kaisese testified that he has been the Ward Councillor for the Wadalei for the last 25 years. He estimates the accused's age to be the same as that of his son Morea whom he says was born 2 days before the accused sometime in 1984. He could not remember the exact though but says his son was born on a Tuesday and the accused on the Thursday purportedly on the same week. He says that that would have made his son and the accused 19 years old at that time. He says that he was able to remember this as he also doubled as the Ward Recorder there was no ward recorder at that time.
   
8. Mr. Kaisese said that he knows the accused well being his cousin sister's son.
   
9. On cross examination he maintained that the accused was born in 1984. He denied that the accused would be now only 15 years old. He alluded also to being told by the accused's father that the accused was born on same week as his (witness') son. When asked whether the accused as married at the time of his arrest the witness replied that he was not as he was still young and that in their area boys would normally marry when they are between 20 – 25 years of age.
   
10. Sergeant Labidi a policeman of 29 years testified that he was informed by the Ward Councillor Mr. Henry Kaisese that the accused was 19 years old at that time of his arrest. He said he believed what he was told and it did not occur to him to make an independent assessment of the accused's age and besides he said that in Milne Bay ages of people may be high but people themselves may be small in stature. He also testified that there are no Juvenile Court Officers in Esa'ala.
    
11. When asked on cross-examination whether he was familiar with the Juvenile Courts Act in relation to arrest of juveniles, Sergeant Labidi answered that a Juvenile Courts Officer or a parent has to be present. In this case he was told the accused was 19 years old so he knew that he was not dealing with a juvenile. If it were not so he would have done the necessary things in juvenile cases. When asked if the accused had told him that he was 19 years of age the witness said that when the accused said that he did not know his age when he asked him, he did not bother asking the accused again.
    
12. The defence on the other hand also called two witnesses - Mr. Billy Joel and the accused himself. Mr. Joel is the Acting Senior Community Corrections & Rehabilitation Officer for Milne Bay Province, who among his other roles is also a Juvenile Court Officer.
    
13. Mr. Joel testified about compiling a report on an inspection on 14/07/10 of Juvenile detainees held at the Giligili prison and of responding to a letter by the accused's Lawyers who had inquired about his age. In a nutshell Mr. Joel determined from the detainee records held at the Prison and from the accused himself that he was 13 years old at the time of his admission on 22/12/09. He said that he observed the accused to be a juvenile as he looked small and young and was kept in the juvenile section of the Prison.
    
14. On cross-examination Mr. Joel reiterated that he relied on the information contained in the detainee records and the accused himself to determine the accused's age. He conceded that there were no details of the date of birth in the admission record, he would not have known if the accused was lying or not and that as result his report was therefore inclusive as the the accused's exact age.
    
15. The accused testified that he is now 15 years old but does not know his exact date of birth. When asked on examination in-chief how he knew that he is 15 he said that was because he knew that he was 13 years old at the time of his arrest. And he knew he was 13 because his sister had shown him his clinic book and told him he was 13 years old during an occasion when some food were cooked for him.
    
16. The accused said that he is kept and treated as a juvenile at the Prison and that he told the Prison warders himself of his age. He denied having grown a beard as yet.
    
17. The accused maintained during strong cross examination that he was 13 years of age at the time of his arrest and that he was not able to remember his age when asked during the interview because he was not educated.
    
18. On being questioned by the court as to whether he was of the same age as Mr. Kaisese's son Morea, the accused said that Morea was older than him.
    
19. At the end of testimonies the Court – with concurrence of both counsel – physically examined the accused in chambers in the presence of counsel and the Juvenile Court Officer Mr. Joel. The Court particularly took note of the accused physical development or maturity.
    
20. It was noted that the accused had shaved off his beard, armpit and pubic hair. A physical examination of the accused's face and beard area was not indicative of someone who had been shaving for some long period of time. Rather the skin was smooth and indicates that the accused has only started shaving.
    
21. The accused also had what seemed to be a fully developed set of teeth though it could not be ascertained if the last set of molars commonly known as wisdom teeth had developed. The accused said that he had shaved his beard, armpit and pubic area a couple of days previously because of what he said was "cockroach" infestation though I would think that the culprit would more likely be hair lice.
    

Submissions

22. Mr. Pipike submitted that the accused is a juvenile and at the time of his arrest was merely 13 years of age. While there is no medical proof of the exact date of birth counsel implored the Court to accept the evidence of the accused and the Mr. Joel the Juvenile Court Officer that the accused was 13 years old when arrested and that he would now be 15 years old.
    
23. He referred the Court to section 3 of the Juvenile Courts Act 1991 which basically places the power to determine whether or not is a juvenile in a Juvenile Court Officer at the time ojf arrest and in a Court during court proceeding when a dispute arises as to age.
    
24. Counsel submitted that in this case the Juvenile Court Officer has exercised his power under s 3 of the JCA and had accordingly determined the age of the accused as being 13 years at the time of his arrest. Furthermore the court had invoked its powers under section 63 of the Evidence Act and physically examined the accused.
    
25. He submitted therefore that the accused was at the time question a juvenile.
    
26. Mr. Kuvi on the other had submitted that since there was no evidence from any close relatives, the only Mr. Kaisese is in a better position to attest to the accused's age. While appreciating the power granted to the JCO by s 3 of JCA to determine age, Mr. Kuvi said that Mr. Joel had conceded that his report was not conclusive. In any case there are only two witnesses that the court can rely on – Mr. Kaisese and the accused – so its the accused's words against the Ward Councillor's.
    
27. Mr. Kuvi alluded to what he said were lies by the accused - that he conveniently forgot his age when asked about it at Esa'ala but now suddenly remembering that he in fact 13 years at that time and his repeated denial of having shaved which was proved to be false when he was found to have shaved his beard, armpit and pubic area during physical examination by the Court.
    
28. Therefore because of these lies the only evidence that should be believed, counsel argued, is that of the State witnesses and the examination conducted under Section 63 of the Evidence Act Ch. 48.
    
29. Let me now turn to the issues.
    

DELIBERATIONS ON THE ISSUES

Issue No. 1: Was the accused a Juvenile? If he was, was the interview conducted fairly?

The Law

30. Section 63 of the Evidence Act provides generally for the court's power to determine the age of a person before a court where it considers that age has not been proved or insufficiently proved. It provides:-
    

63. Age.

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

31. Section 3 of the Juvenile Courts Act 1991 deals specifically with the determination of ages for juveniles but in a sense fortifies s 63 of the Evidence Act. It provides:-
    

3. Determination of age.

(1) Where a person apparently under the age of 18 years is arrested or detained and there is doubt or dispute as to the age of the person, the age shall, subject to Subsection (2) and in the absence of evidence to the contrary be as determined by a Juvenile Court Officer.

(2) Where in any proceedings under this Act, there is doubt or dispute as to the age of the defendant, the age shall, in the absence of evidence to the contrary, be as determined by the Court.

(3) In making a determination of age under this section, regard shall be had to—

(a) the development, maturity and conduct of the juvenile; and

(b) any other information that may be available.

32. As I understand it, there are two situations covered by Section 3.
    
33. The first is covered by s 3(1) which deals with the determination of the age of a person who apparently is under the age of 18 years when he is arrested but there is dispute or doubt as to his age. In such a situation, a Juvenile Court Officer must determine the person's age in the absence of evidence proving the age. The important thing to note here is that there has to be a dispute or doubt as to the age of the person before a Juvenile Court officer can invoke his powers.
    
34. Subsection (2) provides for the second situation in similar terms but this time where, in any proceedings under the Act, the age of a person is disputed or in doubt, and again where there no concrete proof, the age of the person will be determined by the Court.
    

Facts

35. Now having heard the witnesses on this issue, that is the age of the accused at the time of his arrest, I must say that neither side has proven its claim convincingly. In fact there is no clear proof of the accused's age – then and now – in the absence of a birth record book, certificate or evidence from close family members.
    
36. While the Village Councillor testified that the accused was born on the same week as his own son in 1984, which would have made them 25 years old at the time of the offence it does not explain why he told the arresting officer that the accused was 19 years old. Indeed, if the accused was 19 then he would have been born in 1990.
    
37. I find that the arresting officer acted entirely on the information supplied to him by the Ward Councillor Mr. Kaisese. He took the Councillor's word for granted and seemed to have not doubted that the accused was 19 years as he was told
    
38. There is no evidence of any dispute about the accused's age at the time of the interview. Nor did the arresting officer doubt that the accused's age was anything but 19 years and I accept that that explains why the accused was treated and processed as an adult. He did not have any second thoughts because, as he said, some people in this part of the country are actually older then they look.
    
39. That being the case there was no need for a Juvenile Court Officer to have been present during the arrest and subsequent interview of the accused.
    
40. However, looking at the events objectively it seems pretty clear to me after having seen the accused that he would have indeed been a juvenile at the time of his arrest - how old exactly is something that I will have to determine under Section 3(2) of the Juvenile Courts Act 1991.
    
41. I will return to this after I have determined the second issue.
    
42. The next question then is; was the interview conducted fairly?
    
43. The onus of proving unfairness lies on the accused.
    
44. Statements, including a record of interview, by an accused person which have been unfairly or improperly obtained may be rejected if the court considers that they would be unfair on the accused. Here the court has a wide discretion whether or not to admit such statements into evidence. The discretion must, however, be exercised judicially: R v. Wendo [1963] PNGLR 217.
    
45. While an involuntary confessional statement, is as a matter of law, inadmissible, a statement that is unfairly or improperly obtained may nonetheless be admitted by the court in the exercise of its discretion. Matters that the court may take into account include the age, education, sophistication, intelligence and background of the accused: The State v. Kwaigo Embogol (1977) N91.
    
46. But a voluntary confession may still be excluded if it was obtained unfairly. As is common knowledge, the police sometimes apply improper means and measures when questioning persons held in custody. In the process confessions are often made – some voluntarily and some in breach of s. 42(2) of the Constitution.
    
47. On this issue, I have considered the evidence, submissions and the authorities cited to me by counsel on this point.
    
48. At the outset I must say that I do appreciate the great difficulty under which rural policemen and women work.
    
49. To the issue of fairness I adopt what was said in R v. Ginitu Ileandi [1967-1968] PNGLR 496 that when considering an objection to the discretionary rule the ultimate test is fairness to the accused than dwell on the question of improper conduct by the police.
    
50. Hence, while accepting what the authorities have said about the need to give the accused every opportunity to take to a relative or a lawyer of his own choice, and more so when the accused is youthful or a juvenile as in this case, I do not think that the conduct of the Record of Interview on the accused in the circumstances then prevailing was unfair on him.
    
51. I say this fully conscious of the accused rights as a juvenile. However, this has to be understood against the circumstances and more so the information available to the arresting officer at that time.
    
52. The evidence shows that when the accused was apprehended, the Village Councillor told the arresting officer that the accused was 19 years of age, the same age as the Councillor's own son. The arresting officer did not doubt the veracity or otherwise of this information because as he said some people in this area of the country look younger than what they really are because of the small built.
    
53. The alleged confession itself was voluntary. And despite the accused evidence that he did not fully understand the Dobu language, which seems to me to be one of the main languages used locally and his obvious lack of education and sophistication, it has not been proved to me that the admission of the Record of Interview will be unfair on him. The confession therein contained was made voluntarily and done in circumstances that were not unfair to him.
    
54. I rule therefore that there was no unfairness to the accused at that time and accordingly admit the Record of Interview into evidence.
    
55. But how old was the accused then? I have already found that he would have been under 18 years old, perhaps between 16 and 17 years old. I say this because from my observation e seems to me to be around 19 years now despite his claim that he is 15 years old.
    
56. So having examined the accused in person, I estimate him to have been around 16 years old at the time of the alleged crime. That would make him 19 years old today.
    
57. Therefore pursuant to my powers under s 3 (2)(3) of the Juvenile Courts Act 1991 determine that the age of the accused at the time of the alleged crime was 16 years and therefore he was a juvenile at the relevant time. His case will therefore proceed in camera in accordance with the Juvenile Courts Act 1991.
    

Issue No. 2: Whether the accused was accorded his right to communicate with his relatives.

58. The defence also argued that the accused (juvenile) was not accorded his right to communicate with his relatives.
    
59. On this issue I find that the accused was apprehended in his village. The evidence shows that he was surrendered to the Village Councillor by his own father after he allegedly confessed to him of his involvement in the killing of the deceased.
    
60. The accused had asked to talk to his brother. In an ideal environment where communication facilities are readily available, the police would have had no problem putting him in touch with his brother. However, the accused relatives were in the village, a three hours sea journey from Esa'ala Station. Apart from the distance, the police did not have fuel (zoom) to physically return to Wadelei.
    
61. Again it must appreciated that Sergeant Labidi and the many like him who are stationed in remote Districts and Sub-districts across the length and breadth of the country operate with very little or no logistical support at all.
    
62. The accused had asked to communicate with his brother but he was unable to do so as the Councillor who was the link between him and the village was attending a council meeting at Epepewa which took a while to conclude.
    
63. So given the prevailing circumstances I satisfied that the accused was given an opportunity to communicate with his relatives.
    

CONCLUSION

64. In the final analysis I rule therefore that –
    
    1. The accused was at that time of the alleged crime a juvenile between 1-17 years and at the time of his arrest and subsequent Record of Interview, he was treated fairy under the prevailing facts and circumstances.
       
    2. The accused was, under the prevailing circumstance, was given a opportunity to communicate with his relatives.
       
    3. These proceedings shall hereafter proceed in camera.
       

Orders accordingly.

_________________________________________________________
The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused