The State v John Koga Ivoro (1989) N772

• Jurisdiction: Papua New Guinea
• Judge: Brunton AJ
• Judgment Date: 14 September 1989
• Citation: (1989) N772
• Court: National Court
• Year: 1989
• Judgement Number: N772

Full Title: The State v John Koga Ivoro (1989) N772

National Court: Brunton AJ

Judgment Delivered: 14 September 1989

N772

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 493 OF 1988

THE STATE

V

JOHN KOGA IVORO

Waigani

Brunton AJ

5-7 September 1989

11-14 September 1989

CRIMINAL LAW — Law of Evidence — Voir Dire — Voluntariness — Exercise of judicial discretion — Constitution s 42 (2) — absence of the constitutional caution — record of interview — police verbal (oral admission by the accused) — intoxication of the suspect.

ORDER:

By virtue of s 57 of the Constitution ordered that the record of interview be excluded from evidence on the trial.

In the exercise of the judicial discretion the oral admissions made at Ensisi Valley be excluded from evidence on the trial.

Cases Cited:

Constitutional Reference No.1 of 1977 [1977] PNGLR 362.

The State v Silih Sawi [1983] PNGLR 234.

McDermott v R (1948) 76 CLR 501.

R v Skelley [1965-1966] PNGLR 105.

The State v Joseph Maino [1977] PNGLR 216.

Schliebs v Singh [1981] PNGLR 364.

State v Wangabin Tonieng and 2 ors [1986] Unreported N542.

The State v Mana Turi [1986] Unreported N579.

R v Lee & ors (1950) 82 CLR 133.

R v Jeffries (1947) 47 SR (NSW) 284.

The State v Konts Kot [1987] Unreported N623.

The State -v- Paro Wampa & 5 ors [1987] Unreported N599.

The State v Kevin Evertius and Thomas Kundi [1985] Unreported N504 (M).

John Alex v Martin Golu [1983] Unreported N419.

The State v Karara Peter [1983] Unreported N438 (M).

State v Songke Mai and Gai Avi [1988] Unreported SC348.

Statutes:

The Evidence Act Ch 48 s 28.

The Constitution 22, 23 s 38 s 42 (2) 42 (2) (b) 43, 43 (2) (f), 44, 44 (6) 57 58 Sch 1.5.

Arrest Act Ch 339. s 24

Texts:

Chalmers, Weisbrot and Andrew Criminal Law Practice of PNG 2nd Ed 228.

Counsel:

Mr. Soi, for the State

Mr. Koeget, for the Accused.

JUDGMENT ON VOIR DIRE

BRUNTON AJ: The State Prosecutor sought to tender a confessional statement made by the accused; the lawyer from the Public Solicitor's Office objected.

The objection was that the statement was made contrary to section 28 of the Evidence Act; it was unfair and should be rejected as a matter of discretion; and it should be rejected because it was obtained in violation of constitutional rights.

Particulars of the objection were given as follows-:

1. the accused was continuously assaulted by Sgt. Tom Chinau and other policemen on arrest at Morata, and later at the Ensisi Valley

2. he was not permitted to receive medical treatment for injuries to his face

3. the accused was sufficiently intoxicated after consuming beer with the police, so as to impair his mental capacity

4. the accused was hungry

5. that when the accused first made a verbal admission to the police, while consuming beer at Ensisi Valley, the accused was not given his constitutional rights pursuant to s 42 (2) of the Constitution

6. when the accused was taken to Boroko Police Station, and gave a formal statement, although cautioned, he was not given his constitutional rights under s 42 (2) of the Constitution.

It is apparent that the accused made two admissions. The first was an oral statement at Ensisi Valley. The second was a written statement at the Boroko Police Station.

THE POLICE EVIDENCE

The police witnesses called on the voir dire testified that on the afternoon of the 16th of March 1988, a "plain-plate" Toyota utility, driven by Sgt. Tom Chinau of the Serious Crime Squad, was on consorting duties in the Waigani-Morata area. In the vehicle were Detective First Constable Katuwaku, Detective Kari Tiriho and Detective First Constable Andrew Arandja. At about 2.30 pm, at Morata, they saw the accused and two companions, and pulled over to talk to him. He walked over to them voluntarily. Sgt. Chinau, an experienced investigator, testified that the accused John Koga Ivoro was a police-informer, and that he had known John since 1984. According to Sgt. Chinau the accused had given information on thirty or forty different occasions about gang activities, escapees and the location of stolen property (Chinau: 65, Tiriho: 69). The accused did not deny he was an informer, although he said he was "forced" to inform. He admitted that in the past Sgt. Chinau had paid him for information (Ivoro: 91).

Sgt. Chinau's account of the events at Morata was that the accused approached his vehicle when he stopped nearby, and offered to buy beer for the police in the car. Sgt. Chinau could see the accused had been drinking because his breath smelt of beer (Chinau: 38) and his eyes were red, although "not very red" (Chinau: 64). Chinau accepted the offer because he realised that it was likely some criminal intelligence may be forcoming. The accused got into the back of the utility and they drove to the Waigani shops. There the accused got out, and Chinau followed him into the shop. Chinau saw the accused had about K100, and watched as he bought a twelve-pack of beer. They then drove to Ensisi Valley and parked at the end of the road at about 3.15 pm (Chinau: 40). The party gathered around the tray of the vehicle, some inside the tray some standing on the ground. They all drank. According to Chinau the atmosphere "was just like ordinary normal friends sitting down and drinking" (Chinau: 41). There was no precise evidnce of the initial content of the conversation — it was conversation in general. But suddenly the accused asked the police "do you know of a robbery in the SP Brewery, Badili?" Chinau said "No, I don't know about it". The accused is alleged to have then said "I will give you a statement about this robbery, it was committed by me and four of my friends; you can get the others and leave me alone" (Chinau: 32). Mr. Chinau said he was not sure whether the accused was telling him the truth, but he decided to ask the accused to accompany him to the Boroko Police Station so that he could take a formal statement. No caution was administered at that point, because Sgt. Chinau did not know whether he should believe the accused. Shortly afterwards, between about 3.30 pm and 3.45 pm, the group drove back to Boroko Police Station. They went to the Serious Crime Squad office and Sgt. Chinau arranged to do an interview at his desk with the accused. Constable Charles Gandari was the corroborator, but Kari Tiriho was also preent at a nearby desk. A statement in question-and-answer form was taken down in Sgt. Chinau's handwriting. The statement was in pisin. A formal caution was administered at the beginning of the interview. It was read back to the accused and then signed by the accused, Sgt. Chinau and Constable Gandari. After the interview, Sgt. Chinau telephoned to Badili Police Station to ascertain whether or not there had been a robbery at the SP Brewery Bottle Depot. When this was confirmed, he advised the accused of his constitutional rights, formally arrested him and had him locked in the cells.

THE EVIDENCE OF THE ACCUSED

Evidence for the accused came from the sworn testimony of the accused. No other witness was called. He testified that on the 16th of March 1983, he had been drinking at Morata with two of his cousins. After they consumed the beer they had, they went out looking for more. They stopped at a snooker-place, and then went to a store and bought a carton of beer and some meat. Shortly after this he and his cousins saw Sgt. Chinau in his vehicle. Sgt. Chinau called out to him, but he refused to go near the vehicle. Chinau took out his pistol and threatened him. The accused sent his cousins away. When he got near to the car Sgt. Chinau allegedly pressed the pistol to the accused's body, hit him on the body, punched him in the mouth, and forced him to get into the car. This assault was alleged to have taken place behind a store near the "One-Way Church". The accused said at this time he was drunk.

The group then drove to the Waigani shops where Sgt. Chinau bought a full (24 bottles) carton of beer. The accused said that everybody got out of the vehicle and all went into the store. He said that at this time "although I was drunk, I was still using my sense" (Ivoro: 86). The party drove off to a place which the accused described as "a short-cut up near University". There they stood around with the carton in middle and he was "forced" to drink two bottles of beer. He said that the police threatened him; that Sgt. Chinau pointed a pistol at his head. He denied that the occasion was a friendly drink and that they talked about sport, or other generalities. He said-:

"I admitted the robbery because I felt pain and I got scared — I told Tom; but actually I don't know anything about it" (Ivoro: 87).

After the accused made the admissions he said they all went to Boroko Police Station. At the Station the accused said-:

"Tom punched me on the mouth — it was bleeding — one (officer) took me to wash my face; some were hitting me with gun-butts — it looked like all of them hated me. I told them I was hungry and asked them to lock me up in the cell and take my...