The State v Joseph Maino [1977] PNGLR 216

• Jurisdiction: Papua New Guinea
• Judge: Prentice DCJ
• Judgment Date: 19 July 1977
• Citation: [1977] PNGLR 216
• Court: National Court
• Year: 1977
• Judgement Number: N100

Full Title: The State v Joseph Maino [1977] PNGLR 216

National Court: Prentice DCJ

Judgment Delivered: 18 and 19 July 1977

1 Criminal law—interlocutory—admissibility statement—no caution—adequate provision constitutional rights—Constitution s42

CRIMINAL LAW—Evidence—Record of interview—Admissibility—Absence of caution—Inadequate provision of constitutional rights—What constitutes "constitutional rights"—Record of interview rejected—Constitution s42.

CRIMINAL LAW—Murder—Definition—Death from reflex vagal inhibition—Inaptness of UK decisions—Intoxication as defence—Criminal Code s305(b).

S305(b) of the Criminal Code provides as follows: "Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say . . . (b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, . . . is guilty of murder."

The accused was charged with the murder of one Patrick, whose death resulted from the accused knocking him down and stamping heavily 6 or 7 times on his neck, which, it was found, disastrously affected his heart mechanism causing death from reflex vagal inhibition. The accused who was seriously affected by liquor at the time of the commission of the offence, purported to have little recollection thereof, and reported to the local police station after being told what he had done by other witnesses. A reliable witness gave evidence that the accused attacked the deceased after a fight between the deceased and a third man in which the deceased knocked a large hole in the wall of the accused's house.

On the trial the prosecution sought to tender in evidence a record of interview conducted on the day of the alleged offence, to which objection was taken on the grounds inter–alia that no constitutional rights were given the accused and that no caution was administered. On the voire dire, it appeared that in fact no caution was given and the record of interview itself revealed the following exchange:

(Constable)

The Constitution of Papua New Guinea says I must now tell you about your rights. I must first tell you why I am arresting you. I am arresting you because I believe you killed a man by the name of Patrick Yawi. At the moment you have not been charged with any offence. You have the right to send a message or speak to a member of your family or a personal friend, or any lawyer you wish or to the Public Solicitor. If you get a lawyer he may come and see you wherever you are kept and you will be allowed to talk to him about this matter.

Q. Do you want to get a lawyer or the Public Solicitor in?

A. I know some lawyer but I don't know their house and telephone.

The interview then proceeded without the accused taking any steps to contact any person and in a room containing a telephone and telephone directory.

Held:

(1) The question of whether constitutional rights have been given to an accused pursuant to s42 of the Constitution will depend upon the particular circumstances of each case.

Semble

the Constitution envisages that something more practical and useful than a mere statement of rights may be called for to give effect to s42(2) of the Constitution in any particular circumstance.

(2) In the circumstances of this case something more than was done was called for, the accused should at the least, have been given the opportunity and facilities to telephone someone.

(3) Accordingly, there was a lack of adequate provision of constitutional rights which coupled with the failure to give the usual caution were sufficient grounds to reject the record of interview, even if it was voluntary in the common law sense and not induced by threat or promise.

McDermott v R (1948) 76 CLR 501 at 515; Cornelius v R (1936) 55 CLR 235 at 247, and R v Lee and Others (1950) 82 CLR 133 referred to.

(4) Such intoxication as existed being self induced afforded no defence under s27 of the Criminal Code.

R v Allan Evi of Bereina [1975] PNGLR 30 referred to.

(5) In the circumstances, the Court could be satisfied beyond reasonable doubt, that the accused embarked on an unlawful purpose, namely seriously to attack the deceased that he did so assault the deceased and the nature, severity and persistence of his assault did cause the death of the deceased, and accordingly the accused was guilty of the offence of murder as defined in s305(b) of the Criminal Code.

(6) Intention to cause a specific result not being an element of the offence of murder as defined in s305(b) of the Criminal Code, intoxication under par. 3 of s28 of the Criminal Code afforded no defence.

Bratty v Attorney–General for Northern Ireland 1963 [AC] 386 disapproved.

Trial.

This was the trial of an accused on a charge of murder. The Supreme Court on appeal subsequently reduced the conviction to manslaughter. (See Joseph Maino v The State [1977] PNGLR 404.)

INTERLOCUTORY JUDGMENT.

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Prentice DCJ: The prosecution has sought to tender in evidence a record of interview conducted between Constable Paia and the accused on 16th January, 1977 at Boroko police station. Objection has been taken to the tender on a variety of stated grounds, and a voire dire examination has been conducted. The court has had the benefit of the evidence of the Constable, Sgt. Nunumata, and the accused on the subject, and I have had access to the accused's s103 statement in the District Court and the record of interview itself.

The grounds of objection are that constitutional rights were not given the accused; no "caution" was administered; a threat was made (s86 Evidence Act 1975); and the accused was in such a state of health and fatigue as to render his answers to questions involuntary or such as not fairly to be used against him. There are other grounds which suggest that only some of the questions and answers were recorded, that some were incorrectly recorded, that alterations (presumably without accused's concurrence) were made and that one particular question (that now conveniently numbered 23) was neither asked of, nor read back to, the accused. I am of the opinion that these other grounds do not go to the question of voluntariness or admissibility, but are of the kind which would be decided by a jury if this were a jury trial (cf R v Matheson, Cook and Manuel [1969] SASR 53). However, as a matter of practical convenience the evidence relating to these details has also been taken.

On the accused's own version of events, the interview at the police station occurred as a result of his going himself to the station on the morning of 1 January to report what he understood to have happened the night before. On the police version it was had some 12 hours later at 9.00pm

I consider the defence has failed to establish to the necessary degree (that is on the probabilities), that any state of illness or exhaustion existed in the accused such as would render it unfair for the record of interview to be used against him and would call for the exercise of the court's discretion against its admission in evidence (cf R v Sykes and Campi (No 1) [1969] VR 631). Other matters raised cause more concern, to my mind.

In the first place, the record itself contains no reference to the giving of any caution or warning that the accused had a right to remain silent and that any admissions made could be used in evidence. Constable Paia himself admits that no such warning was given. The giving of the usual caution is of course elementary to police procedure, is laid down in police instructions, and stipulated for by the various Judges' Rules of the past in the countries from which our Criminal Code and criminal procedure initially derive. It may be that Constable Paia on this occasion lost sight of the necessity for such a safeguard after he had given what he appears to have regarded as the "Constitutional Rights" statement. One could understand (though not approve) his overlooking the normal caution, if the fact had been as the accused stated—that he, the accused, came to the station of his own volition to report. But Constable Paia, though his recollection is vague and unsatisfactory on the subject, suggests that he himself arrested the accused and proceeded...