R v Kar Moro and 16 Others

• Jurisdiction: Papua New Guinea
• Judge: Lalor J
• Judgment Date: 25 November 1974
• Citation: [1975] PNGLR 14
• Court: Supreme Court
• Year: 1975
• Judgement Number: No814

Supreme Court: Lalor J

Judgment Delivered: 25 November 1974

1 Criminal law—murder, wilful; Payback; Evidence—confessions; Evidence—admissibility; Civil rights

2 Verbal and written confessions ruled inadmissible; involuntary; conflicts with evidence; unsafe; 18 arrested after payback killing of murder suspect in police custody; alleged assaults and intimidation during questioning; no reasonable grounds for arrest for questioning; violations of Human Rights Act

3 CRIMINAL LAW—Evidence—Confessions—Admissibility—Voluntariness—Meaning of—Onus and standard of proof of voluntariness—Discretionary power to reject in all the circumstances of the case—Particular circumstances including assaults, intimidation and non compliance with the Human Rights Act 1973.

In criminal proceedings:

(1) Only confessions which are voluntary will be admitted in evidence; that is confessions which are made by the accused in the exercise of a free choice, and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent opportunity or undue insistence or pressure. A confession will not be voluntary if it is preceded by a threat or a promise by a person in authority unless the inducement is shown to have been removed. R v Toronome–Tombarbui [1963] PNGLR 55 referred to.

(2) The onus of proving that confessions are voluntary rests with the prosecution.

(3) The standard of proof to be applied in establishing the voluntariness of confessions is that of the balance of probabilities.

On a charge of wilful murder the Crown sought to adduce in evidence certain verbal confessions made by each of the accused on the day of the alleged murder and whilst in custody and subsequent written confessions made on the following two days and whilst still in custody, the admissibility of which were challenged.

Each of the accused had made allegations of assaults and intimidations and there were large conflicts between the confessions themselves and the medical and other evidence. The evidence further established that the accused were arrested for questioning in relation to the murder, not on any reasonable suspicion of having committed the offence and contrary to s11(1) of the Human Rights Act; that they were not informed of any valid reason for their detention as required by s11(2) of the Human Rights Act; that they were not taken before a magistrate as soon as practicable as required by s11(3) of the Human Rights Act; and that there had been a deliberate failure to observe the directions and the spirit of the directions as to the conduct of investigations.

Held

(1) Quite apart from the evidence of assaults and intimidation the verbal confessions should be excluded in the exercise of the court's discretion in all the circumstances of the case, on the basis that those circumstances were likely to and did in fact produce untrue confessions and additionally were obtained by such continued illegal actions by the police as to make it unjust that they should be used in evidence.

R v Lee (1950) 82 CLR 133 referred to.

(2) The subsequent written confessions could only be admitted if the circumstances under which the first confessions were rendered inadmissible had been shown to have dissipated, and this not having been shown the written confessions should be excluded also.

R v Smith [1959) 2 QB 35 at 41, and R v Laird (1893) 14 LR (NSW) 354 applied.

Trial.

Kar Moro and sixteen other accused were charged with the wilful murder of a man Kiap Kogor on 19 July 1974. Evidence was led of certain verbal admissions made on the day of the murder and whilst in custody and objection to their admissibility was taken by the defence. Counsel for the Crown, also sought, with the consent of defence counsel, a ruling on the admissibility of certain written confessions taken on the following two days and whilst still in custody. The question of admissibility was argued as if upon the voir dire and the following written judgment delivered.

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Lalor J: In this matter I am required to decide whether verbal admissions made by each of the defendants should be received as evidence in their trial.

The accused are charged with the wilful murder of a man Kiap Kogor on 19 July 1974.

The circumstances in which the charge arose were as follows. On Friday, 19 July 1974, a police party consisting of three constables of the Criminal Investigation Branch and five general duties constables accompanied the deceased Kiap Kogor to Kogop Village in an open police utility.

Kiap Kogor was in custody on a charge of having murdered a man Koli of Kogop Village on Sunday, 14 July. The purpose of the visit to Kogop Village was to obtain the axe believed to have been the murder weapon.

Kiap's wrists were handcuffed and he was further handcuffed to the wrist of one of the constables; he was travelling in the open back of the utility together with five constables.

The police party drove through a sing sing ground situated some fifty or sixty yards before Koli's house where the axe they were seeking was. At the sing sing ground there were a considerable number of people variously estimated from 100 to more than a thousand who were taking part in a mourning ceremony for Koli. On all the evidence the higher figure would appear the closer estimate.

The vehicle then continued on to Koli's house where it was turned round and all the police except the driver, and the prisoner Kiap alighted. Kiap was taken into the house by Senior Constable Mavirit who was in charge and was accompanied by Constables Aigibe and Tomamang. The axe sought was taken possession of and some photographs taken. The party was in the house about five minutes.

When they came out of the house or shortly afterwards a group of village people estimated between 100–200 rushed to the police car. An estimated 40–50 men armed with axes obviously about to attack were amongst them. The police were unarmed except for three tear gas canisters which were in the utility. Senior Constable Mavirit, acting promptly and with courage, got Kiap and his escorting constable on to the back of the utility as it was being attacked. He ordered the driver to drive away and was himself pulled to the ground as he attempted to join Kiap and the escorting constable on the utility.

The other police were justled aside by the crowd and some, according to one police witness, ran away.

The driver hampered by the crowd, made several attempts to drive off and was able to do so only by leaving the road and driving through a garden. During this time the attackers were aiming blows with their axes at Kiap. He and his escorting constable because of the handcuffs were defenceless and Kiap received seven axe wounds: two of these were fairly immediately fatal; one was fatal but would, of itself, not have caused a quick death, and the others were not, of themselves dangerous to life. He died on the utility. No blows were aimed at or struck any of the police.

The police vehicle drove straight to Mount Hagen police station, and then took the dead body of Kiap to the hospital. The remainder of the police were driven to the main road by Mr Pena Ou, MHA, who was present at the sing sing ground, where they obtained a lift until they were met by police cars on the road and were driven to Mount Hagen. None of the police at this stage claimed to be able to identify any of the attackers. More than a month later Senior Constable Mavirit did claim to be able to identify two of them.

In the meantime a mobile squad of thirty–two men had been dispatched to the village where they arrived about 3.45 pm This would have been some three quarters of an hour after the attack. They were armed with the standard weapons of a squad including shotguns and tear gas. On arrival they took up formation around a group of seventeen or eighteen men who were seated on the ground at the sing sing ground. A councillor from Kogop Village Simbil Kauli was also present at the sing sing ground. He gave evidence that the men seated on the ground at the sing sing ground—the accused—had been at the mourning ceremony and had remained at the sing sing ground when Kiap was killed near the house and were still there when the mobile squad arrived. Gai Nuwi a committee man gave evidence that he, also, was at the sing sing ground when the killing took place with the eighteen men and the councillor. He stated that at the sing sing ground they could hear people calling out that Kiap was being killed at the house but could see nothing because of the crowd. At this a lot of the people left the sing sing ground but the accused, the councillor, and himself remained. They were there when the police utility drove back from the house and when the mobile squad arrived.

Some ten minutes after the arrival of the mobile squad further police arrived...