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State v Dauma (No 1) [2021] PGNC 311; N9135 (13 September 2021)

N9135

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 477 OF 2019

STATE

V

BELIGA DAUMA
(No 1)

Waigani: Wawun-Kuvi, AJ
2021: 6^th, 8^th &13^th September

CRIMINAL LAW-EVIDENCE- Confessions and Admissions-Admissibility- Confession obtained in breach of Evidence Act, s. 28, Statue barred

CRIMINAL LAW - EVIDENCE – Confessions and Admissions- Admissibility – Unfairly obtained admissions in Record of Interview derived from Confessional Statement- Discretion to exclude
Held:

(1) There are four broad categories which form the basis for exclusion: threats or promise, illegalities, improprieties, and breach of constitutional rights.
(2) There is a difference between consequences that result in evidence obtained by threats and promise in breach of section 28 Evidence Act and other forms of illegally obtained confessions.
(3) Section 28 is in the mandatory terms. There is no exercise of discretion. Once the Court decides that the confession was obtained by threat or promise, it is involuntary and inadmissible.
(4) There is judicial discretion to admit confessions obtain through other forms of illegality. Although it may be involuntary, the confession is admitted where the probative value outweighs the prejudicial effect.
(5) Voluntary confessions although admissible in common law may still be excluded on application of the fairness discretion.
(6) The breach of section 42(2) Constitutional rights are also subject to the exercise of fairness.
(7) The Confessional Statement was obtained through threats, in breach of section 28. It is involuntary and inadmissible.
(8) The Record of Interview is excluded because it was derived from the Confessional Statement. It was voluntary but the circumstances surrounding its reception were based on threats which did not dissipate.
(9) Neither documents shall be admitted into evidence.

Cases Cited:
Papua New Guinea Cases

State v Hasu [2018] PG 495; N7595
State v Balana [2007] PGNC 12; CR 522 of 2003

State v Daniel [2005] PGNC 89; N2869
Gasika v The State [1983] PNGLR 58
State v Pai [1986] PGNC 1; N535
State v Turik [1986] PNGLR 138
State v Mana Turi [1986] PNGLR 221
State v Toiamia [1978] PGNC 6; N145
SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362
State v Embogol [1977] PGNC 2; N91
State v Joseph Maino [1977] PNGLR 216
R v Ula [1975] PNGLR 123
R v Kar Moro [1975] PNGLR 14
R v Tovarula [1973] PNGLR 140
Regina v Loe [No 1] [1969-70] PNGLR 12
Regina v Ileandi [1967-68] PNGLR 496

Overseas Cases

R v Lee [1950] HCA 25

Reference

Criminal Code Ch 262
Evidence Act Ch 38
Evidence Ordinance 1934-1964

Counsel

Mr Jackson Gubon, for the State
Miss Rachael Mangi and Mr Malcom Sumbuk, for the Defence

RULING

13th September, 2021

1. WAWUN-KUVI, AJ: The accused Beliga Dauma pleaded Not Guilty to charges of Armed Robbery contrary to section 386(1) (2) (a) (b) (c) and Unlawful Use of Motor Vehicle contrary to section 383 (1) of the Criminal Code (Code) respectively.
   
2. The Defence filed a Notice of Voir Dire on 27 August 2021, indicating that an application would be moved for the exclusion of the Confessional Statement and Record of Interview.
   
3. In essence, the basis for the voir dire is the illegality and unfairness surrounding the obtaining of both documents. The accused gives a detail account of his allegations. In short, he states that he was severely assaulted by police officers and detained at Saraga Police Station for four days. Following, his detention at Saraga, he was taken to Criminal Investigation Division (CID), Homicide Office at Boroko. At Boroko, he was further subjected to threats of violence. The confession was obtained that day. He was not afforded his constitutional rights to see his family and out of fear and intimidation complied with what the police officers instructed him to do. The formal interview that resulted in his formal charges was derived from the Confession.
   
4. A voir dire was conducted, during which, evidence was given, subject to cross examination, by three police officers who were responsible for the obtaining of both documents and the accused.
   
5. The police officers who gave evidence were Detective Senior Constable Steven Eka, Detective Constable Ronald Sakarias and Detective Constable Samson Kami.
   
6. Written submissions supported by oral submissions were made on behalf of the accused. The Prosecutor made oral submissions.
   
7. I am now to decide whether both documents should be entered into evidence.
   

The Law on Confessions

8. A short discussion on the law in relation to confessions is necessitated by both counsels having a somewhat limited appreciation on the laws of admissibility relating to confessions.

Threats or Promise, Illegalities, Improprieties, and Breach of section 42(2) Constitutional rights

9. Before I embark on this brief analysis of the categories, I am reminded that the common law principles that have been adopted in Papua New Guinea and cited in many cases are derived from systems of law that have juries. Rules as they relate to notice to the prosecution are stringent in jury trials as well as the questions that are asked since, there are two separate proceedings being conducted. Television shows and movies depicting jury trials do not reveal the painstaking and time-consuming task of evidence filtering in jury systems: See State v Pai [1986] PGNC 1; N535 (13 March 1986).
   
10. There are four broad categories which form the basis for contention for exclusion. They are:
    

• Threats and promise, section 28 Evidence Act
• Illegalities
• Improprieties
• Breach of Constitutional Rights
  

11. The confessions obtained under these categories’ go through a filtration process. Determinations are made on whether the confession was made voluntarily.
    
12. In common law involuntary confessions are inadmissible whilst voluntary statements are admissible. Involuntary confessions may still be admitted in the exercise of judicial discretion and or the reverse, voluntary statements although admissible may be excluded in the exercise of the fairness discretion.
    
13. Regarding breach of section 28 and other illegal forms applied to obtain confessions, there is a marked difference.
    

Threats and Promise: Section 28 Evidence Act exclusion

14. Papua New Guinea legislated the common law approach in relation to confessions obtained by threat or promise in both the pre-independence Evidence Ordinance 1934-1964^[1] and later the Evidence Act, Chapter 38^[2]. The common law position has been that confessions induced by threat or promise by a person is authority is deemed non-voluntary. It is inadmissible in that regard.
    
15. In Regina v Loe [No 1] [1969], the Court in applying section 15 of the Evidence Ordinance 1934-1964 rejected a confession on the basis that it was obtained by promise. It was also held to be inadmissible at common law since it was non-voluntary. The facts were such that an officer left the accused alone with four indigenous constables who interrogated the accused for 2 hours. During the interrogation, one constable told the accused that if he confessed the police would make things easier for him in court. The Court also expressed the opinion that the facts implied a threat, in that, the accused was going to be kept at the police station until he confessed. And based on this threat the confession was also inadmissible pursuant to section 15 of the Evidence Ordinance.
    
16. In State v Balana [2007]^[3], the confession was ruled inadmissible because it was obtained in breach of section 28 of the Evidence Act. The accused was arrested in the early hours and assaulted until he mentioned names in answer to the police officers’ questions of ‘who he was with’. A confession was obtained in the afternoon of that day. The Record of Interview followed the giving of the confessional statement. The Court whilst ruling that the confession was inadmissible according to law, found that the circumstances in which the confession was obtained were also unfair.
    
17. There is no exercise of discretion because of the Statutory exclusion. Once the Court decides that the confession was obtained by threat or promise, it is involuntary and inadmissible.^[4]
    
18. The distinction between confessions obtained in breach of section 28 of the Evidence Act, and other illegally obtained confessions which would be otherwise rejected by common law as non-voluntary on any other ground, is that the former while involuntary, has not been legislated and discretion still applies as alluded to above.^[5] The Court considers its probative value and may still admit it.^[6]
    

Improprieties and Section 42 (2) Rights

19. Confessions obtained through improper means generally involve some form of voluntariness. In common law, if the evidence is voluntary and relevant, it is admissible. However, judicial discretion may be called for, where the strict rules of admissibility would act unfairly against an accused.^[7]
    
20. The Court in Regv Ileandi [1967-68]^[8] held that:
    

“In considering whether to reject a confession on a discretionary basis it is better to adhere to the question of fairness to the accused as the ultimate test rather than to rely on a subjective test of propriety of the conduct of the police. It may still be unfair to admit a confession where there has been no impropriety on the part of the police just as it may not be unfair in some circumstances to admit a statement obtained in breach of the Judges Rules.”

21. In this jurisdiction, the fairness discretion plays a significant role in the rejection of evidence although probative value outweighs the prejudicial effect. The exercise of this fairness discretion is dependent upon each case.
    
22. In Regina v Ileandi [1967]^[9], the confession of one accused who sat in the interview of a co-accused was admitted. The Court held that it may not be proper, but it was not unfair according to common law.
    
23. In State v Toimia [1978]^[10], two suspects were arrested for a murder. Police kept them in separate rooms. Both accused were informed falsely that the other had confessed and implicated the other. The Court in holding that the evidence did not disclose a breach under the Evidence Act found that it was improper for police to have done what they did. The Court arrived at that decision notwithstanding that in common law the evidence may be admitted. The basis for which was that the prevailing circumstances dictated that in all fairness the confession had to be excluded.
    
24. R v Ula [1975]^[11] which followed Reg v Ileandi[1967]^[12] and Reg v Loe [No 1][1969] held:

“Despite the occurrence of improprieties or illegalities, and despite the lack of a caution, confessional evidence may be admitted if it is established to have been given voluntarily.”

25. It is however observed that the illegalities referred to in R v Ula only relate to circumstances other than threats and promise.^[13] Discretion applies for the other considerations.
    

Failure to afford Section 42 (2) Constitutional Rights

26. Whilst not new in the common law, the principles of procedural fairness during police arrests and detention are encapsulated in the Constitution.
    
27. Two years after R v Ula [1975], the Supreme Court in SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977]^[14] held that the failure to administer section 42 (2) rights did not necessary result in the rejection of admissions by an accused. That each Court must in the exercise of discretion determine each case on its own peculiar facts.
    
28. Fairness discretion as was discussed appears to surface in certain cases, to reject the confessions although voluntarily made.
    
29. It is clear from the volume of case laws in our jurisdiction, that failure to afford these rights does not necessarily result in the exclusion of confession. Likewise, each case is determined on its own peculiar set of facts.
    

Submissions

30. The substance of the accused submission as I gather from the written submission, is that:
    
    1. pursuant to section 28 of the Evidence Act, the Confessional Statement and the Record of Interview, which was based on the Confessional Statement, should not be admitted into evidence. That section states that a confession shall not be admitted into evidence where it has been induced by a threat or promise by a person in authority. The accused states that he was threatened into confessing.
    2. Pursuant to the exercise of discretion, considering in totality the evidence presented, the breach of constitutional rights is significant, and the evidence must be rejected.
    3. the evidence was obtained in circumstances that were unfair, in that, the contents of the confession were not read to the accused before he signed it.
       
31. The State submits that the law under section 28 of the Evidence Act is under strict terms. It is submitted that the accused did not discharge the duty of establishing his allegations of involuntariness. That, there was no notice of the allegations of unlawful detention for four days at Saraga Police Station in the Notice of Voire Dire. And that the accused rights were afforded.
    
32. The State’s submission in relation to lack of notice is misconceived. Paragraph 1(i) gives notice to the State regarding the detention of four days at Saraga Police Station.
    
33. As to other aspects of both counsel’s submissions I shall now proceed to deal with them.
    

Standard of Proof

34. The accused must establish his allegations on the balance of probabilities and the State needs to negate it beyond reasonable doubt.^[15]

Findings of Fact

35. I must decide:

• Whether threats were applied. If the answer is yes, then I need not consider the other issues. If the answer is no, then:

If the confession is voluntary?

• Are the circumstances such as to render them unfairly obtained? or

If involuntary through other form of illegality,

• whether the probative value outweighs any prejudice? And whether in the exercise of the discretion, the confession can still be admitted?
• Even if the probative value outweighs prejudicial effect, in all fairness, can it still be admitted?
• The same process applies to the determination of whether the Constitutional rights were afforded.
  36. It is not disputed:
• Unformed policemen brought the accused to CID Homicide, Boroko on 1 August 2018.
• A confessional statement was obtained on 1 August 2018.
• A record of interview was subsequently obtained
  37. The accused evidence is that:
• On 27 July 2018 at around 4 pm he was at Vadvada. He went to see a friend to collect a profile. He was attempting to secure a contract for a project in Kwikila in Rigo District. His friend was not in the office, so he left for a nearby store to buy a drink. While he was in the store, two police officers walked in and ‘manhandled’ him outside. They stripped him and took his K60 cash monies, bank card and driver’s license. At this stage he was not informed of the reasons for this treatment. He was brought into a tinted white 10-seater. He could not recall the registration number. There were possibly eight (8) other people in the vehicle. He was taken back to the office. The policemen raided the office. He was brought back to the 10-seater. They assaulted him while he was lying on the floor. He was driven around until about 8 pm. They took him to somewhere at Tokara where there is a tank. Two or three more 10 seaters arrived. They started assaulting him again. A firearm was discharged in his direction, but it missed. He was booted. The policemen were fully armed. One of the policemen took him into the 10-seater vehicle and told him to comply. The policeman threatened him to comply, or he would be shot. He then complied. During the whole time, he felt threatened and scared. He felt threatened and scared because they tried to shoot him in the vehicle and were asking him about an incident in which he did not know about.
• They then took him to Saraga Police Station at 6 Mile. They assaulted him and threw him into the cells. The next day he was taken out of the cells and assaulted again. The police officers got statements from him which they gave to Steven Eka. He was kept at Saraga for 3 or 4 days. On the last day of his detention at Saraga, he was taken to Hohola. He was told to wash the blood stains off his body. He was taken to Boroko Police Station.
• At Boroko Police Station they took him to the homicide room where he was threatened. They then took him to another room where they showed him a CCTV footage. He was not in the image. The CID officers forced him to say that he was the driver of the vehicle. They said something would happen to him if he did not say that he was the driver. He was forced to answer so he was just saying yes to the questions. Steven Eka was writing the statement and forced him to sign. He was given his rights, but he was not allowed to exercise his rights to remain silent.
• During the formal interview, he informed the police officers that he had an uncle at the CID office, and the police officers told him that his uncle’s phone was off. He was not allowed to call his uncle.

38. The State’s evidence is:
    • Steven Eka is the Investigating Officer. He states that on 1 August 2018, uniformed policeman left the accused at the Criminal Investigation Division (CID) Homicide Office. The Officers left. He gave a short caution to the accused and the accused freely gave his statement regarding the robbery. He gave the statement to the accused, the accused read it and signed. He and the corroborator also signed. He did not threaten, induced, or force the accused to give the Statement. Then on the 3 August 2018, he conducted the Interview with the accused. The accused gave his answers voluntarily. He gave full caution which included the administering of the section 42 (2) of the Constitution rights. The accused understood. He read and understood the Record of Interview and signed. He was not threatened, induced, or forced to answer. He says that he was not aware of anything that happened prior to the accused being brought to him. He says the uniformed police officers left after they handed the accused to him.
    • The evidence of the other CID Officers, Ronald Sakaris and Desmond Kami are the same as that of Steven Eka. Roland Sakaris was the corroborator for the confessional statement and Desmond Kami for the Interview. Ronald Sakaris who is the corroborator for the Confessional Statement says that there were other policemen present.
39. The only version before the Court on what transpired prior to the accused arriving at the Boroko Police Station, is the accused. The State has not led any evidence to negate this aspect of the evidence.
    
40. From the evidence, at Boroko Police Station, I find that:
    
    • (1) There were other officers present in the room when the confessional statement was obtained. Steven Eka denies this, however Ronald Sakaris who is the corroborator agrees that other policemen were present.
    • (2) The accused was told to wash and clean himself up before taken to Boroko Police Station. Steven Eka says that the accused looked clean when he was brough in on 1 August 2018.
    • (3) That the accused was in some form of pain during the taking of the confessional statement. Steven Eka admitted in cross-examination that he was told by the accused that “he had pain in his body”.
      
41. During submissions, I enquired with counsels whether any assistance would be rendered by reading of the Confessional Statement and Record of Interview. Ms Mangi referred to Gasika v The State [1983] ^[16] and submitted that the Court was permitted to read the documents. Mr Gubon for the State first submitted that the Court was not permitted, then retracted after assistance from a fellow prosecutor. He then submitted that nonetheless, the Court should not read the documents.
    
42. Gaskia v The State^[17] provides that I have a general or residual discretion to read both documents and R v Tovarula [1973]^[18] provides that when the admissibility of a confessional statement is challenged, and the evidence is heard on the voire dire the Court may read the statement to assist in assessing the credibility of the accused and of his interviewer.
    
43. On that basis, I proceeded to reading both the confessional statement and the record of interview.
    • Steven Eka says in cross examination that he was not told of the date when the accused was apprehended. He says that the date of apprehension was 1 August 2018. However, in Question 13 of the RO1, he asks the accused “is it true you have been arrested by the uniformed policemen on the 27^th July 2018 and detained at Saraga Police Station at 6 mile and later handed over to CID Homicide Squad at Boroko Police Station few days later.” This question supports the accused evidence that he was picked up by uniformed policemen on 27 July 2018 and detained at Saraga Police Station until 1 August 2018.
    • Question 15 oof the ROI establishes the accused account of being interrogated from 27 July 2018 to 1 August 2018 by uniformed police. The question put by Steven Eka was “According to the statement from witnesses [policemen] you were interrogated about the Fortune allegation when you also admitted saying that you were driving a white CRV car regarding the shooting of a Chinese man at Fortune”. [Emphasis mine]
    • Questions 24, 25 and 26 Detective Eka puts questions to the accused regarding the CCTV footage of the alleged offence. This supports the accused account of being shown the CCTV footage which the State did not lead in its evidence, nor did it rebut in cross-examination.
44. The Record of Interview confirms the accused account of detained and interrogated prior to his arrival on 1 August 2018 at the Boroko Police Station.
    
45. Threats, arising from series of police improprieties was proven:
    • He was assaulted from around 4pm until very late in the evening before he was taken to Saraga Police Station on 27 July 2018.
    • He was assaulted the next day until he agreed to what was demanded from him.
    • He was in custody for 5 nights and a morning at Saraga Police Station without charge.
    • The confession was obtained during the period of unlawfully detention.
    • Processes pursuant the Arrest Act where not complied with.
    • He was not brought before a Court in breach of the District Court Act and the Constitution following his arrest by the uniformed police officers.
    • Once he was brought to Boroko Police Station, he was detained for a further two days before he was formally charged.
    • He was required to undertake a formal interview after already signing a confessional statement.^[19]
46. I am satisfied on the evidence as the State has not negated it, that the accused was assaulted continuously on 27 July 2018 until he gave a confession. The only reason which can be inferred regarding the extended detention was to allow the bruising to subside before he was taken out in public to Boroko Police Station.
    
47. I am further satisfied that the accused was threatened into giving a confession. Having established this, the State needed to negate the allegations, which it did not do. Whilst the accused did not name the police officers whom he alleged subjected him to violence and threats of violence, he gave a detailed account in his notice. Coupled with the Record of Interview, the State was aware of the policemen whom the allegations were made against, as was apparent from the prosecutor’s questions.
    
48. In the circumstances I am satisfied that the confessional statement was obtained in breach of section 28 of the Evidence Act and is inadmissible. I need not consider other aspects of the Notice because, section 28 is in the mandatory terms.
    
49. I also find that, the Record of Interview is excluded because it was derived from the Confessional Statement. It was voluntary but the circumstances surrounding its reception were based on threats which did not dissipate. ^[20]
    
50. Neither documents shall be admitted into evidence.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

^[1] Section 15: “No confession which is tendered in evidence on any criminal proceeding shall be received if it has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby, unless the contrary is shown.”

^[2] Section 28: “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.”
^[3] PGNC 12; CR 522 of 2003 (21 March 2007)
^[4] R v Lee [1950] HCA 25
^[5] State v Toiamia [1978] PGNC 6; N145 (25 May 1978)
^[6] See statement of Lord Cooper (Lord Justice General) in Lawrie v Murir, 1950 J.C. 19 cited in State v Toimia (supra)
^[7] State v Toiamina (supra) in reference to R v Lee [1950] HCA 25
^[8] PNGLR 496 (5 December 1968)
^[9] PGSC 17; [1967-68] PNGLR 496 (5 December 1968)
^[10] Supra
^[11] PGLawR 465; PGSC 39; PNGLR 123 (25 June 1975)
^[12] supra
^[13] See the discussion in R v Lee [1950] HCA 25
^[14] PGSC 15; [1977] PNGLR 362 (26 October 1977)
^[15] State v Hasu [2018] PGNC 495; N7595 (3 October 2018) and The State v Joseph Maino [1977] PNGLR 216
^[16] PNGLR 58
^[17] supra
^[18] PNGLR 140
^[19] State v Balana [2007] (supra) followed Pratt J. in The State v Anton A mes Turik and Wickie Jack Peltham [1986] PNGLR 138 and McDermott J. in The State v Mana Turi [1986] PNGLR 221, in condemning the practice of obtaining conducting a formal interview after obtaining a confession.
^[20] State v Balana (supra) followed R v Kar Moro [1975] PNGLR 14 “When a confession is not admissible, a subsequent confession is equally not admissible unless it can be shown that the circumstances under which the confession was rendered inadmissible have dissipated”