Re Rights of Person Arrested or Detained; Constitutional Reference No 1 of 1977 under s19 of the Constitution [1977] PNGLR 362

• Jurisdiction: Papua New Guinea
• Judge: Pritchard J:
• Judgment Date: 26 October 1977
• Citation: [1977] PNGLR 362
• Docket Number: SCR No 1 of 1977
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC122

Supreme Court: Frost CJ, Prentice DCJ, Williams J, Kearney J, Pritchard J

Judgment Delivered: 26 October 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 1 OF 1977 UNDER S. 19 OF THE CONSTITUTION

Waigani

Frost CJ Prentice DCJ Williams Kearney Pritchard JJ

27 April 1977

26 October 1977

CRIMINAL LAW — Evidence — Admissibility — Admissions by accused person — Failure to comply with s. 42 (2) of Constitution — Admissions not rendered inadmissible — Constitution of the Independent State of Papua New Guinea s. 42 (2) Section 42 (2) of the Constitution provides as follows:

(2) A person who is arrested or detained —

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection.1.

Failure to comply with all or any of the provisions of s. 42 (2) of the Constitution of the Independent State of Papua New Guinea, does not for that reason alone render admissions by an accused person inadmissible as evidence on his trial.

(Per Frost C.J. with whom Kearney J. agreed). But the National Court under s. 57 (1) of the Constitution, in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of s. 42 (2) of the Constitution should be excluded from evidence in the trial.

(Per Williams J.) If in a particular case it appears that there has been a breach of s. 42 (2) then this is a matter for the trial judge to take into account together with all the circumstances of the case when exercising his discretion whether or not to admit evidence obtained following the breach.

Reference

This was a reference by the Acting Public Solicitor, to the Supreme Court of Justice pursuant to s. 19 of the Constitution of the Independent State of Papua New Guinea, which empowers the Supreme Court to "give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law...."

The question referred by the Acting Public Solicitor was:

"Does failure to comply with all or any of the provisions of s. 42 (2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?"

W. J. Andrew and M. Kapi, to argue the affirmative case: Where s. 42 (2) of the Constitution has not been complied with there are other Constitutional provisions, namely s. 23 (1), and Sch. 1.2 (1), s. 23 (2), s. 57 (1) and s. 155 (4) which bear on the question of admissibility of confessions made to the police or arresting officer, and the Constitution being autochthonous (The State v. John Mogo Wonom [1975] P.N.G.L.R. 311) the duty to comply with s. 42 (2) is mandatory. The Constitution, on its proper construction itself impliedly forbids the use of material obtained in breach of its terms, that is s. 42 (2) and the people of Papua New Guinea have an unalienable right to have any confession rendered inadmissible if it were improperly obtained; R. v. Ireland (1970) 126 C.L.R. 321 referred to. Section 42 (2) on its proper construction impliedly forbids the use of a confession obtained without the police first complying with its terms; R. v. Stafford [1976] 13 S.A.S.R. 392, R. v. Evans [1962] S.A.S.R. 303 at p. 307 and R. v. Harris and Daly (No. 2) [1975] 12 S.A.S.R. 270 at pp. 272-273 referred to. The effect of s. 37 (10) of the Constitution on the breach of the provisions of s. 42 (2) is to render confessional evidence received in breach of its terms, inadmissible against the person concerned. Commissioners of Customs and Excise v. Harz and Another [1967] 1 A.C. 760, McDermott v. The King (1948) 76 C.L.R. 501, and Miranda v. Arizona (1966) 384 U.S. 436 referred to.

K. B. Egan, to argue the negative case. The duty imposed upon a person, almost invariably a police officer, under s. 42 (2) of the Constitution is to administer the caution required when they have arrested or detained someone, and accordingly not every record of interview situation will require a s. 42 (2) caution to be given, but only those in which the suspect has been "arrested" or "detained" in the strict sense. Smith v. Reg. (1956) 97 C.L.R. 100 at p. 128 referred to. There is no specific obligation existing within the Constitution for the Court to rule that all confessional material obtained without compliance with s. 42 (2) ought to be rejected for that reason alone, nor should the Constitution be interpreted as so requiring. The King v. Lee and Others (1950) 82 C.L.R. 133 at p. 155, McDermott v. The King (1948) 76 C.L.R. 501 at pp. 506-507, The Queen v. Ireland (1970) 126 C.L.R. 321, and Wendo v. The Queen (1963) 109 C.L.R. 559 at p. 570 referred to.

B. W. Kidu, Acting Principal Legal Officer: Section 42 (2) of the Constitution is in mandatory terms and must be complied with; it is not ambiguous imprecise or incomplete and merely states in terms which are clear on the face of it what a person arresting or detaining another must do, and accordingly construction by implication cannot arise. Tinkham v. Perry (1951) 1 T.L.R. 91 at p. 92, Gahan (Inspector of Taxes) v. Chloride Batteries Ltd. [1955] 1 W.L.R. 277 at p. 283, Warburton v. Loveland, Ivie and Others (1831-32) 6 E.R. 806 at p. 809, Hare v. Gocher [1962] 2 Q.B. 641 at p. 646, and Richardson v. Austin (1911) 12 C.L.R. 463 at p. 470 referred to.

As there are no other Constitutional Laws or Acts of Parliament which provide a remedy for a breach of s. 42 (2) then the s. 23 remedy of sanctions is the Constitutional remedy. The court must still retain a discretion to exclude confessions where there is a breach of s. 42 (2) of the Constitution in all the circumstances of the case. Section 37 (10) of the Constitution, on its proper construction does not exclude any confession obtained before the trial commences, it should be construed according to the ordinary and natural sense of the words used. Republic v. El Mann [1969] E.A.L.R. 357 at p. 361 referred to.

Cur. adv. vult.

26 October 1977

FROST CJ: This reference by the Acting Public Solicitor relates to the Constitution, s. 42 (2), which is contained in Pt. III, Div. 3. — Basic Rights. The section confers rights on a person who is arrested or detained. I shall refer later to its terms.

The question referred is:

Does failure to comply with the provisions of s. 42 (2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?

It is useful to refer first to the scheme of the Constitution, in which that Division is placed. The Constitution commences with the Preamble, which concludes with an Acknowledgement of Basic Rights and Declaration of Basic Social Obligations. The Preamble is significant in matters of construction of the Constitution because it is expressly provided that, in the manner stated, it may be used as an aid to interpretation in cases of doubt. Constitution, Sch. 1.3. (1). Under the heading "Basic Rights" it is acknowledged "that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:

" (a) life, liberty, security of the person and the protection of the law; and

...

and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest." The portions I have underlined on the whole indicate that in the statement of the rights the legitimate public interest has been taken into account, and that the rights and freedoms have been included, subject only to the limitations on their protection as are expressly set out. It would be a wrong approach therefore further to cut down the operation of the Constitution, s. 42 (2), in the interest of ensuring, for example, that the guilty do not go unpunished. Of the Basic Social Obligations, it is necessary for the purposes of this case to refer only to (f), which, in respect of the rights and freeoms of...