N9671

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 838 OF 2019

THE STATE

V

ABE KEVIN
(No 1)

Kimbe:  Numapo J
2021:  21st to 25th October

CRIMINAL LAW – Voir Dire - Confessional Statement – Admissibility – Voluntariness – Common Law Principles - s 28 Evidence Act – Specific threats to obtain confession – Threat by those in authority – Discretion to exclude admissions obtained voluntarily based on fairness and public policy reasons – Proper caution and administering of rights under s 42 (2) of the Constitution- Statement made in the exercise of free-choice – Confessional statement admitted.

Cases Cited: 
Papua New Guinean Cases

James Paru v The State SC1632 (2017) 
R v Amo and Amuna [1963] PNGLR 22 
R v Wendo [1963] PNGLR 242 at 245  
State v Balana [2007] PGNC 12 
State v Nelson Namto & Patrick Kaikre (2018) N7259
State v Woila [1978] PNGLR 572 

Overseas Cases

Mc Dermott v King (1958) 76 CLR 501
R v Thompson [1893] 2 Q.B 12

Counsel:

N. Pare, for the State
B. Takua, for the Defence

RULING ON VOIR DIRE

25th October, 2021

1.	NUMAPO J: This is a ruling on a voir dire. Defence objected to a tendering of a confessional statement as evidence obtained by the police alleging that threats were used by Police Investigating Officers in obtaining the confession. It was not voluntary and was not given by the accused on his own free-will.

2.	The accused was indicted on one count of sexual penetration of a child under the age of 12 years pursuant to section 229A (1)(2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

3.	In its evidence in chief, the State sought leave of the court to tender a confessional statement allegedly made by the accused. Defence objected to the tendering of the confessional statement and informed the court that it had filed a Notice of Objection to the tendering of the confessional statement pursuant to section 28 of the Evidence Act. 

4.	The law regarding confession is that the court must be satisfied that a confession tendered in evidence has been made voluntarily. Section 28 of the Evidence Act provides:

“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”.  

5.	The position in law is that a confession obtained without the necessary warning under section 42(2) of the Constitution and the Judges Rules’ Caution on the right to remain silent is a breach of a fundamental right (State v Nelson Namto & Patrick Kaikre (2018) N7259).

6.	The objection was based on the assertions made by the accused that he was threatened and forced to confess to the crime by the police officers investigating the matter and also by other inmates at the Lakiemata Correctional (CS) facility.   A voir dire was conducted to ascertain if the confessional statement was voluntarily given or not.

7.	The evidentiary rules governing admissibility of a confession are as follows:

8.	Firstly, admissibility of confessions in criminal proceedings is guided by a set of stringent rules with the minimum requirement that the confession was made voluntarily and not extracted by any sort of threat or violence or obtained by any promise or exertion of improper influence (R v Wendo [1963] PNGLR 242 at 245).  (See also; Mc Dermott v King (1958) 76 CLR 501).

9.	Secondly, a confession obtained without issuing the required warning under s 42 (2) of the Constitution and the Judges Rules’ Caution on the right to remain silent, cannot be admitted (State v Balana [2007] PGNC 12); and R v Wendo (supra).  

10.	Thirdly, Prosecution bore the legal burden of proving beyond a reasonable doubt that the confession was voluntary (R v Amo and Amuna [1963] PNGLR 22; State v Woila [1978] PNGLR 572). (See also: R v Thompson [1893] 2 Q.B 12).  

11.	The evidence from the lead Investigator, Detective Constable Newton Namura in the voir dire hearing is that no force, threats or intimidation was used to obtain the confessional statement. There was no inducement or promise made and the accused was not under any pressure or duress when he gave the confessional statement. He made the confession of his own free-choice. Sgt. Elias Lavu told the court that there were no threats or force applied on the accused to obtain his confession. He made the confession voluntarily on his own free-will. Accused was never been ill-treated whilst held at Buvusi Police Station cell.  The spouses of the police officers at Buvusi provided food and looked after him until he was taken to Lakiemata CS. 

12.	Accused told the court that he was threatened and assaulted by Detective Constable Namura and Sgt. Lavu at the Buvusi Police Station cell. He was held there for five weeks without a charge before taken up to Lakiemata CS. He was left naked in the cell for four days without food. However, the only ground he raised in the voir dire notice relates to the threats of assault but nothing was mentioned about being held in custody for five weeks or being left naked in the cell for four days without food. According to the voir dire notice, accused was held at Buvusi Police cell for a week before he was taken to Lakiemata CS. This raises a lot of doubts in my mind as to the truthfulness of his claim on the time spent in police custody at Buvusi. 

13.	Furthermore, I find it difficult to accept that the accused could easily have forgotten to include as one of the grounds in his voir dire notice that he was left naked and without food for four days in the police cell. This is a serious violation of human rights, if there is any truth in it, and should have been raised in objecting to the tendering of the confessional statement but this was not done for reasons only known to the accused. This raises a lot of doubts in my mind as to whether or not the accused is telling the truth. I observed his demeanour with great interest throughout the hearing and formed the view that he is not a credible and reliable witness for himself. He exaggerated a lot and some of what he said simply defies logic and commonsense to say the least.

14.	The threatening words allegedly uttered by the Policemen is reflected in paragraph 1 of the voir dire notice. On face value, it does not, in my opinion, constitute a direct threat to force a confession out of the accused. If anything, it was a general statement made containing some threatening words. There is a big difference between a general threat and a specific threat for purposes of obtaining a confession. In PNG, it is not unusual for our policemen and women to use certain amount of force to effect arrests and in the process may have uttered some harsh and threatening words but this does not necessarily mean forcing the perpetrator to confess to the crime. 

15.	The second lots of threats according to the accused came from other inmates at Lakiemata CS. In paragraph 4 of his voir dire notice accused stated that he was threatened by other inmates to confess to the crime. The threats came from inmates who are from Hoskins in the Nakanai LLG area. Police records revealed however, that the victim’s father is from Enga Province and her mother is from Talasea LLG area of the West New Britain Province. In the PNG context, the victim and her parents are not related to the inmates in any way, hence, I find it difficult to accept how this could be perceived as threats to force a confession from him. I should also add that it is not uncommon for any new inmates entering prison to be subjected to such threats or harassments. Unfortunately, this is the way of life in prisons throughout the country and even around the world. 

16.	For some reasons, sexual predators like the accused seem to be the prime target for such abuses from inmates who are fathers, brothers and uncles of victims who suffered sexual harassments and degradations at the hands of sexual predators and deviants. There are others who believe in the society’s standard of decency on sexuality and sexual orientation that openly opposed to such behaviour and often referred to sexual predators as monsters and undesirable members of the community. They would attack at random those who preyed on innocent young girls and women. These groups of inmates do not necessarily have to be related to the victim in order to show their anger towards the perpetrators. For this reason, the threats issued to sexual predators by other inmates can be expected and accused is no exception. 

17.	If anything, it is the police who would be more interested in getting a confession as it relates to their investigation. I cannot see how the confession could be of any use or benefit to the other inmates. I find no tangible connection between the threats (if any) made by the inmates and the confession itself. Any suggestion therefore, that the confession made was as a direct result of the threats issued by the other inmates, is in my view, implausible and far-fetched.

18.	It is a requirement under the Evidence Act that a person who proposes to object to a confessional statement must set out clearly in the notice of objection, the grounds upon which he intends to rely on, to challenge the admissibility of the confession and that notice must be given in advance to the prosecution before the hearing.  The voir dire hearing must be based solely on the grounds raised in the voir dire notice that objects to the tendering of the confessional statement and nothing else. Any new grounds raised or assertions made at the hearing that is not in the voir dire notice should not be accepted into evidence (James Paru v The State SC1632 (2017). 

19.	Let me conclude by saying this, the principle of law governing admissibility of confessions in criminal proceedings requires that the confession was made voluntarily and not extracted by any sort of threat or violence or obtained by any promise or exertion of improper influence. R v Wendo (supra) and Mc Dermott v King (supra). I have set out in details the alleged threats, according to the accused, made by the Police Investigating Officers and other inmates at Lakiemata CS. Accused alleged that he confessed to committing the crime because of these threats. However, based on the evidence that is before me, I am not, for one moment, convinced that the police issued any threats of violence or held out any promises or exert any improper influence to obtain the confession by the accused. I am satisfied that the accused made the confession voluntarily on his own free-will. Secondly, the alleged threats received from the other inmates is not supported by any credible and cogent evidence. The defence indicated it would call an inmate as a witness to testify in support of the accused in relation to the threats made by other inmates but did not call the witness. Furthermore, there is no evidence of any report made to the CS Officers or the CS Commander at Lakiemata by the accused of any threats made to him by other inmates. I understand there are certain protocols within CS to deal with such situations to avoid further problems. One such protocol requires the CS Commander to immediately separate the inmates into different cell blocks or compounds for their own safety.  No such action was taken to relocate the accused because there is no reason for it. Accused has not filed any report to the authorities of such threats. 

20.	All in all, I find the accused’s story on the alleged threats made to him by the police and the inmates as without basis, uncorroborated and unsubstantiated by any independent credible evidence. I am satisfied therefore, that he had made the confession on his own free-will.

21.	There was no issue raised in respect to the second evidentiary rule governing admissibility of a confession regarding the rights of the accused to be cautioned and informed of his rights. It was not raised as a ground of contention in either the voir dire notice or in evidence. I take it therefore, that the accused was cautioned and told of his rights before he was charged. In his evidence, the Lead Investigator, Detective Const Newton Namura told the court that the accused was cautioned and informed of his rights under section 42(2) of the Constitution before he gave his confessional statement on the 22 April 2019 at Lakiemata CS in the presence of CS Officer Andrew Avosa, who acted as the corroborator. There were no threats or force used and the accused gave his confessional statement voluntarily on his own free-choice. Accused is on record to have admitted that he understood the caution and his rights administered to him before he made the confession. Sgt. Elias Lavu told the court he was the police corroborator during the record of interview conducted on the 25 May 2019, a month after the confession was obtained. In that interview the accused admitted to giving a confessional statement in April. He confirmed that the accused was administered his rights under the constitution by Det. Const Newton Namura before the interview formally commenced.

22.	Finally, as regards to the third evidentiary rule governing admissibility of confession which imposes on the prosecution the onus of proving beyond a reasonable doubt that the confession was voluntary, I simply say that, I am satisfied, based on the evidence before me, that the prosecution has discharged the burden of proof beyond doubt that the confession was made by the accused on his own free-will and therefore, is admissible as evidence (R v Amo and Amuna (supra) and State v Woila (supra). See also R v Thompson (supra).  

23.	I rule therefore, that the confessional statement made by the accused on the 22 April 2019 is admissible and will be admitted into evidence to form part of the prosecution’s case. 

Orders accordingly

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