The State v Joanes Mesak (2005) N2853

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 26 April 2005
• Citation: (2005) N2853
• Court: National Court
• Year: 2005
• Judgement Number: N2853

Full Title: The State v Joanes Mesak (2005) N2853

National Court: Sevua J

Judgment Delivered: 26 April 2005 or 26 March 2005

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 1563 of 1995

THE STATE

v.

JOANES MESAK

Kimbe : Sevua, J

2005 : 16th March

&

26th April

CRIMINAL LAW – Admissibility – Confessions/admissions – Record of interview – Voir dire – Onus and standard of proof – Whether admissions voluntary – Particulars of allegations of assault not fully set out in notice of objection – Defence failure to put allegations to prosecution witnesses in cross examination – Defence cross examination on allegations of assault not stated in notice of objection - Whether accused should be permitted to adduce such evidence – Rule in Browne v. Dunn.

EVIDENCE – Admissions – Discretion to exclude – Unfairness to accused – Judicial discretion based on Constitution – Fairness and impropriety of police investigators relevant – Record of interview – Taken forty seven days after detention and without a charge and without being brought to Court – Whether circumstances amounted to unfairness or impropriety.

CONSTITUTIONAL LAW – Constitutional rights - Right to full protection of the law – Right to be promptly informed of reason for arrest and detention – Right to communicate with family member, friend or lawyer – Right to give instructions to lawyer – Right to be brought to Court without delay. Constitution, Sections 37 (1), 42 (2), (3) and (4).

DISCRETION – Admissibility - Record of interview - Rejected in the exercise of judicial discretion on ground of impropriety.

Held: (1) It is trite law that the defence must put its case to the prosecution witnesses during cross examination in accordance with the rule in Browne v. Dunn (1883) 6 R 67 (HL) so that the prosecution is given the opportunity to refute it or offer an explanation.

(2) Where the accused was detained in the cell for forty six days without being charged and without being informed of reason for detention and without being brought before a Court, and then, on the forty seventh day interviewed and formally arrested and charged, the combined effects of ss. 37 (1) and 42 (2), (3) and (4) Constitution make the circumstances of constitutional breaches serious and improper.

(3) In the exercise of judicial discretion, the record of interview is rejected.

Cases cited in judgment:

Browne v Dunn (1883) 6 R 67 (HL)

State v. Simon Tanuma unreported, N1872, 4th June 1999

The State v Allan Woila [1978] PNGLR 99

The State v Kusap Kei Kuya [1983] PNGLR 263

The State v Simon Ganga [1994] PNGLR 323

Reference No 1 of 1977 [1977] PNGLR 362

The State v. Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138

The State v. Mana Turi [1986] PNGLR 221

Mr. Popeu for State

Mr. Inua for Accused

26th March 2005

SEVUA, J : The accused, Joanes Mesak of Angelep village, Kandrian, is charged with armed robbery contrary to s. 396 (1) and (2) (a) & (b) of the Criminal Code Act. He pleaded not guilty to the charge.

In the course of the prosecution’s case on 16th March 2005 when the prosecuting counsel sought to tender a record of interview, the accused, through his counsel, raised objection to the tendering of the record of interview on the basis that admissions made were not obtained voluntarily as the accused’s will was overborne. The Court then conducted a voir dire, which is like a mini trial within the main trial if one needs to describe it that way, perhaps for the benefit of the accused.

Particulars of the allegations of impropriety against police are set out in the accused’s Notice of Objection filed on 10th Match 2005, and I set them out here because of its significance to the defence case.

…………the accused was severely beaten by police officers during his

apprehension on the 09th June 1995 (sic). In the process, two wounds were

inflicted in him (sic); one on his right hand by a knife, and the other on his

right calf muscle. Then, almost 46 days later on 26th July 1997, (sic) (amended

to 1995 with leave) during the conduct of the Record of Interview, he was

threatened by the use of the words; “Yu totktok, yu save wanem samting bai mi

wokim”, or words to this effect, simultaneously loading a pistol and showing it

to him and placing it on the table before him, by the Interviewing Officer, one

Constable Willie Wirenu. Further, he was subjected to more than 40 days

incarceration without being brought before a Court.

All these acts rendered the accused (sic) mind to be ‘overborne’, which is

contrary to S. 28 of the Evidence Act, Ch 48 and Constitution, S. 42.

Secondly, his incarceration for more than 40 days without being brought before

a Court, is unconstitutional, and breaches S. 42 (3) (b) Constitution.

The State adduced evidence from two witnesses; Sgt. Willie Wirenu and Nick Roape. Wirenu was the investigating officer who arrested and charged the accused. At the time of the arrest, he was a Constable of Police attached to Traffic in Kimbe, but has since been transferred to Lae. Nick Roape has since left the Constabulary. However, at the material time, he was a Constable of Police attached to Kimbe Police Station Traffic Section.

The evidence adduced from both the prosecution and defence in the voir dire, which I accept is quite simple and brief. A complaint was received from the victim of the armed robbery, Andrew Tiong, Camp Manager of Ribunan Hijau Logging site at Kandrian. Sgt. Wirenu was assigned to head a team of policemen to go to Kandrian to investigate the complaint. He was assisted by four members of a Mobile Squad in Kimbe. When the team arrived at Kandrian, it was met by the victim who briefed the team on what had been done to him. With the assistance of another local employee from Kandrian, Michael Kabon, the policemen set out to the villages near the logging camp led by Michael Kabon. He led them to different locations where the police picked up the suspects and some cash and home made guns. This accused had K69.00 in his possession whilst another suspect had the sum of K1, 100.00 and one other had K1, 000.00.

Police also recovered four home made guns, one from this accused at his village and three others from two other suspects.

One of the suspects was John ToPaep, the son of a policeman based at Kimbe. He had two home made guns with him and two bags of coins amounting to more than K2, 000.00. He was the one who led the policemen to this accused’s village where he was subsequently picked up by the police team. It is undisputed that the accused’s identity and location were readily supplied by John ToPaep, a member of the gang allegedly involved in this crime.

Both prosecution witnesses denied any knowledge of assault, threats and impropriety committed upon the person of the accused. In fact, the wounds alleged to have been inflicted on the accused, which are alleged in the notice of objection were not said to have been inflicted by any named policeman, let alone the arresting officer. However, in the defence case, which I will be shortly discussing, the accused said that the wounds were inflicted by Sgt. Wirenu and I will refer to the Court’s ruling on that piece of the evidence later. In essence that is the case for the prosecution in the voir dire.

However at this juncture, the Court observes that the notice of objection did not contain detail allegations against any particular police officer including Sgt. Wirenu. The accused and his counsel had failed to clearly identify by name, the police officer who is alleged to have assaulted the accused, the place of such assault and the nature of injury if any, inflicted by that particular police officer. The Court considers this crucial because of the rule in Browne v. Dunn (1883) 6 R 67 (HL), which will be discussed later in this judgment. I consider that they cannot be entitled to the protection of the Court in running a voir dire, because particulars of allegations they rely on have not been specific. It is trite law that one must put forth his case to the other side in cross examination so that the other side is given the opportunity to refute any allegation or offer an explanation. We do not conduct, nor do we allow trial by ambush. That is a rule of fair play.

The accused said he was arrested by police on 9th June 1995 in his village as a suspect in an armed robbery case and then taken to the Ribunan Hijau Logging Camp Site, but he did not know why he was taken there. At the camp, the policemen started to assault him with timber and chains. He named the investigating officer, Willie Wirenu as the policeman who pulled out a pocket knife and cut his right arm with it. The accused said Wirenu also pushed heated metal on his right leg.

At this stage, the Court became concerned that the evidence being adduced then was unfair to the State because they were not put to Sgt. Wirenu in cross examination nor were the allegations of such brutality particularized in the notice of objection. The Court at that stage then raised the principle in Browne v. Dunn (1893) 6 R 67 (HL) and disallowed the evidence for the above reasons. Whilst the State would have had the right to recall Sgt. Wirenu so that these allegations could be put to him, the Court considered it unfair because the same allegations were never particularized in the notice of objection. I will revert to this issue later in the judgment. The rule in...