Fande Balo v R

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Raine J, Saldanha J
• Judgment Date: 12 December 1975
• Citation: (1975) PNGLR 378
• Court: Supreme Court
• Year: 1975
• Judgement Number: SC90

Supreme Court: Frost CJ, Raine J, Saldanha J

Judgment Delivered: 12 December 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

FANDE BALO

V

THE QUEEN

Waigani

Frost CJ Raine Saldanha JJ

30-31 October 1975

12 December 1975

CRIMINAL LAW — Confessions and admissions — Record of interview. — Admissibility — Interview conducted in Pidgin — Recorded in English — Read by translating to Pidgin — Acknowledged by accused and mark affixed.

CRIMINAL LAW — Confessions and admissions — Record of interview Admissibility — Instructions of Commissioner of Police Infra p. 385 footnote.1 — Desirability of recording in language of accused.

EVIDENCE — Admissions — What are — Record of interview — Interview conducted in Pidgin — Recorded in English — Read by translating to Pidgin — Acknowledged by accused and mark affixed.

An interview between an accused who did not speak or read English and a police constable was conducted in Pidgin; and recorded in question and answer form by the same police constable in English only: the record of interview was then read to the accused by the police constable translating from English to Pidgin as he read. The accused then stated that it was true and put his mark to each page.

On appeal against conviction and sentence on a charge of attempted rape, on the ground that the record of interview had been wrongly admitted in evidence,

Held

That the record of interview had been properly admitted and the conviction and sentence should be affirmed.

R. v. Fajkovic; and R. v. Zema and Jeanes [1970] V.R. 566 followed: Gaio v. The Queen (1960) 104 C.L.R. 419, [1964] P. & N.G.L.R. 263, considered.

Per Frost CJ and Saldanha J: That any argument for exclusion of the record of interview based on the hearsay rule is unreal and unsound, for "what is in truth and in substance taking place is a single conversation" (per Fullagar J in Gaio v. The Queen (1960-61) 104 C.L.R. 419 at p. 429) between the parties, but if it did infringe the hearsay rule the application of that rule would be inappropriate in the present type of case, to the circumstances of the case. The rule that a person who pursuant to his acceptance of the reading or interpretation of a document adopts the document by marking it, thereby making it his document is appropriate to the circumstances of Papua New Guinea, where the solemnity and significance of attaching a mark to a document, is very well understood.

Per Raine J: "I cannot agree that only a document written in the words spoken, namely, Pidgin, could be relevant, and admissible on a 'best evidence' basis, nor do I agree that the rule against hearsay was infringed, and I do not agree that the record of interview remained unacknowledged, and constituted no more than a contemporaneous record that could only be used by the interrogating (police constable), to refresh his recollection, but which could not be admitted as an exhibit."

Discussion of the desirability where possible of recording interviews in the language used by the accused and the instruction by the Commissioner of Police (4-1) Footnote p. 385.2 to this effect.

Per curiam, Frost CJ: If in a criminal trial it is found that the instruction by the Commissioner of Police (4-1) has not been observed, the trial judge should not be slow in the exercise of his discretion to reject as unfair to an accused an English translation of what was said in Pidgin or Motu in a proper case, where it is genuinely disputed by the accused person.

Appeal

This was an appeal against conviction and sentence: the appellant was found guilty of the offence of attempted rape and sentenced to two years' imprisonment. The principal ground of appeal was that a record of interview (without which the case for the prosecution could not have been proved) was wrongly admitted in evidence.

Counsel

N. H. Pratt, for the appellant.

K. B. Egan, for the respondent.

Cur. adv. vult.

12 December 1975

FROST CJ: This is an appeal against the decision of Williams J given in Port Moresby on 14th February, 1975, whereby the appellant was found guilty of an offence that on 17th September, 1974, in Papua, he attempted to commit rape upon one Martina Kisaka, and was sentenced to two years' imprisonment.

The point of the appeal concerns the admission in evidence of a record of interview without which the case for the prosecution could not have been proved.

The interview was conducted between Constable Elias Banjui and the appellant, on the night following the alleged offence, at the Boroko police station. It was conducted in Pidgin. The procedure adopted by the constable was to type the question in English then interpret it in Pidgin to the appellant, whose answer in Pidgin was translated and typed in English by the constable. In short, the interview was conducted in Pidgin but recorded only in English, the constable acting as his own interpreter. Upon the completion of the interview the record was read to the appellant, being retranslated into Pidgin. The appellant did not wish to alter anything, and said it was true. On being asked if he would put his mark on each page he said he was willing to do so, and taking the pen he did this.

As Williams J said this procedure has become by no means novel in Papua New Guinea. It is true that there are many "place" languages in Papua New Guinea of which there is no documentary record. But so far as the two main lingua franca are concerned, viz. Pidgin and Hiri Motu, most police speak Pidgin and, outside Papua, in the main towns at any rate there is no dearth of Motu speakers. In cases where either of these languages is used by an accused person there is normally no sufficient reason for not recording the interview in the accused's language. An instruction has been issued by the Commissioner of Police upon this subject to which I shall later refer.

At the trial objection was taken to the admissibility of the document but the objection was over-ruled. The issue was tried on the voire dire upon which the accused gave evidence denying the truth of the greater part of the record. His evidence was disbelieved and the record admitted. On the trial being resumed the appellant elected not to give evidence and was convicted.

The grounds of appeal are substantially the same grounds of objection which were over-ruled by the trial judge. The first ground of appeal was that in effect the case of Gaio v. The Queen (1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263 was wrongly decided. In that case the High Court had to consider the admissibility of a confession made by an accused charged with murder who was interviewed by a patrol officer through an interpreter. The interpreter being illiterate made no notes of the conversation, which was conducted in Motu, and gave evidence only as to the fidelity of the interpretation and not as to the contents of the conversation. The High Court upheld the decision of Mann CJ in admitting the evidence of the patrol officer of what was told him by the interpreter. It was held that the rule against hearsay had not been infringed. In the opinion of Dixon CJ the translation word by word or sentence by sentence by the interpreter was an integral part of one transaction consisting of communication through he interpreter. On the facts of the case the adequacy of the interpretation was not challenged, nor was the patrol officer's account of the conversation.

The present case is however distinguishable on the ground that the conversation took place in Pidgin, a language common to both the constable and accused. Accordingly it is concerned, as Williams J held, not with the admissibility of confessional material as such but with the different question of the admissibility of a written document. The same view was taken by Neasey J in Curtis v. The Queen (Unreported) Tas. Court of Crim. App., S. No. 12/1972 List "A" 23rd March, 1972.4 a decision of the Court of Criminal Appeal of Tasmania in which the accused, an illiterate, put his mark to a record of interview and it was admitted, the Court held properly, upon evidence that it had been read to him and acknowledged to be true.

But as the question whether this Court should continue to be bound by Gaio v. The Queen (1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263 was fully argued it is proper to determine it. Mr. Pratt's argument in effect adopted the criticism of the High Court decision by Professor Cross in an article "The Periphery of Hearsay" (1969) 7 M.U.L.R. pp. 3-5, and by the author of a note in the Criminal Law Quarterly, Vol. 12, p. 25, on the Canadian case of Reg. v. Kores [1970] 5 C.C.C. 55; (1970) 12 Cr. L.Q. 235. That was a decision of the Court of Criminal Appeal of British Columbia upholding the admissibility of a confession, made through an interpreter by a respondent who spoke only Greek, and taken down in English. In the course of its judgment the Court considered Gaio v. The Queen (1960) 104 C.L.R. 419; [1964] P. & N.G.L.R. 263 and agreed with it. Mr. Pratt's submission that it is contrary to the hearsay rule, however, is supported by Wigmore on Evidence, 3rd ed., s. 668, p. 1810. Upon consideration I agree withFullagar J's view that the argument based on the hearsay rule is unreal and unsound, and...