The State v Kiki Hapea [1985] PNGLR 6

• Jurisdiction: Papua New Guinea
• Judge: McDermott J
• Judgment Date: 29 January 1985
• Citation: [1985] PNGLR 6
• Court: National Court
• Year: 1985
• Judgement Number: N497

Full Title: The State v Kiki Hapea [1985] PNGLR 6

National Court: McDermott J

Judgment Delivered: 29 January 1985

1 Criminal law—evidence—confessions—voluntariness—absence of proper caution considered as going to voluntariness of—underlying law—common law test too narrow in view of rights provision in Constitution

CRIMINAL LAW—Evidence—Confessions—Voluntariness—Absence of proper caution—Matter going to voluntariness—Voluntariness covering freedom to speak or not—Common law inappropriate in view of rights provision of Constitution—Evidence Act (Ch48), s28.

In ruling on the admissibility of a record of interview which contained confessional material and which it was alleged was obtained without a proper caution being administered.

Held:

(1) The absence of a proper caution is a matter to be taken into account in determining whether a confessional statement is voluntary in the sense of being made in the exercise of a free choice to speak or be silent.

McDermott v R (1948) 76 CLR 501 at 512; R v Lee (1950) 82 CLR 133 at 149 and Wendo v R [1963] PNGLR 242 at 245 also 109 CLR 559 at 565, followed.

R v Sirakuras [1964] PNGLR 18 at 19; R v Ginitu Ileandi [1967–68] PNGLR 496 at 503, considered.

Dansie v Kelly; Ex parte Dansie [1981] Qd R 1 at 6 and R v Suk Ula [1975] PNGLR 123 at 124, distinguished.

(2) The common law test of voluntariness is no longer appropriate in view of the rights provisions in the Constitution.

R v Amo and Amuna [1963] PNGLR 22; R v Demana–Harina [1965–66] PNGLR 144; R v Josep Kom [1967–68] PNGLR 265 and The State v Goli Golu [1979] PNGLR 11, discussed.

Cases Cited

The following cases are cited in the ruling:

Bunning v Cross (1978) 141 CLR 54.

Cleland v R (1982) 151 CLR 1 at 28.

Dansie v Kelly; Ex parte Dansie [1981] Qd R 1.

Ibrahim v R [1914] AC 599 at 609.

McDermott v R (1948) 76 CLR 501 at 512.

R v Amo and Amuna [1963] PNGLR 22.

R v Anunga (1976) 11 ALR 412.

R v Baldry (1852) 2 Den 430; 169 ER 568.

R v Demana–Harina [1965–66] PNGLR 144.

R v Ginitu Ileandi [1967–68] PNGLR 496

R v Ireland (1970) 126 CLR 321.

R v John Loe [1969–70] PNGLR 12.

R v Josep Kom [1967–68] PNGLR 265 at 272–273.

R v Lee (1950) 82 CLR 133 at 149.

R v Sirakuras [1964] PNGLR 18 at 19.

R v Suk Ula [1975] PNGLR 123 at 124.

R v Voisin [1918] 1 KB 531 at 538.

Smith v R (1957) 97 CLR 100.

The State v Allan Woila [1978] PNGLR 99.

The State v Goli Golu [1979] PNGLR 11.

Wendo v R [1963] PNGLR 242.

Ruling on Evidence

This was a ruling, given during the course of a trial on a charge of breaking entering and stealing from a warehouse, on the admissibility of a record of interview which contained confessional material.

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McDermott J: I ruled that the tendered record of interview by the police with the accused is inadmissible. I now publish my reasons in full.

The accused is being tried on indictment for the crime of breaking, entering and stealing from a warehouse. Apart from the evidence of an employee of the warehouse, which went to the discovery of the break and a stocktake of missing goods, the only other evidence apparent from the State opening is a record of interview.

The offence is alleged to have occurred on 16 December 1983. The record of interview was conducted on 29 June 1984, a short time after the arrest of the accused who, along with some other men, was taken into custody following what appears to have been an early morning raid at the place where they were sleeping. Objection was taken to the tender of the record of interview subsequently obtained on two grounds: (1) that it was obtained after the accused was bashed; and (2) that it was obtained without the administering of a proper caution.

The first objection is based upon s28 of the Evidence Act (Ch48), ie the threat by a person in authority. The particulars supplied at my request were that "the accused was badly bashed by other police before the record of interview by about five policemen". I was then told that the policemen were the investigating officer, one Jamani and the others were unknown.

Evidence was taken on the voir dire. There are differences in the evidence called by the State, ie from the investigating officer, Constable Damaru, and the Sub Inspector on the one hand, and the accused on the other. The differences relate to time of arrest, 0400 or 0730 and what happened at the crime squad office: a holding of the four suspects in a room prior to the allocation of officers to interview them individually in separate rooms or a "softening up" of the accused prior to the record of interview commencing. There are matters about which the evidence is the same; a number of policemen were involved, the arrest of the accused with others, the presence of Paul Jamani (a sergeant), the delay between arrival at the office and the commencement of the interview, the time when the interview commenced and a period when the accused was not with either Damaru or Gerari. The accused said he was not assaulted by either of these two policemen. They, in turn, say they did not see any other policeman assault the accused. That may well be so. The accused says that both these policemen saw him with Jamani. Before taking the evidence further it is clear to me that there could have been opportunity for an assault on the accused before the record of interview commenced.

The first assault is alleged to have been by Jamani when the accused was taken from the first room to where the sergeant was. There he was slapped on the face, punched and questioned about the break–in. He was then led to another office and hit by another policeman with a police baton on the hands which swelled as a result. That assault ended when yet another policeman said words to the effect that it was 0800, take him and charge him. He was then taken to another room where the record of interview was conducted by Damaru in the presence of Gerari—at least for some of the time. The accused said he spoke because "they hit me so I was frightened". He, of course, is referring to the other policemen.

The accused was not shaken in his story. There are no glosses to the assaults. Indeed he said he was not frightened by Damaru or Gerari and his version of the arrest in the early hours, which even the prosecutor concedes sounds more reasonable, gives his evidence the ring of truth. His version of the events exhibits all the features of a classic interrogation with the soft/hard touch approach.

Because Sergeant Jamani, or as I have now been told, ex Sergeant Jamani, has not been called, the real doubts raised by the accused remain and thus the fears of the accused were not assuaged by the conduct of the record of interview.

The second objection raises an interesting point. There was a caution of sorts and it is recorded in the document. I read questions 4, 42 and 44 as evidence on the voir dire. I did not consider it necessary to read any other portion apart from the general introduction and question 45, to which I shall refer later, as I am not concerned here with whether the contents are true or likely to be true, I am concerned with voluntariness.

Question 4

"Sapos yu laik yu ken pasim toktok bilong yu. Tasol sapos yu bekim toktok bilong mi long sampela askim bai mi taipim dispela toktok bilong yu long pepa. Yu klia long dispela toktok?"

(If you want to you can keep quiet. But if you do reply to some of my questions I will type your answers on paper. Are you clear about this talk?)

Question 42

"Sapos yi laik yu ken pasim toktok bilong yu long dispela kot bilong yu. Sapos yo wokim sampela toktok long dispela kot bilong yu, bai mi taipim dispela, toktok bilong yu long pepa na bihain bai mi givim dispela toktok long kot. Yu klia long dispela toktok?"

(If you want to you can keep quiet about your charge. If you do say something about your charge I will type your talk down on the paper and later I will give it to the court. Are you clear about this talk?)

Question 44

"Bifo yu wokim sampela toktok bilong yu long dispela kot bilong yu mi laik toksave olsem wanem toktok yu wokim bai mi taipim tu long pepa na bihain bai me givim long kot. Yu klia long dispela toktok?"

(Before you say anything about your charge I want to explain to you that whatever you say I will type down on paper and later I will give it to the court. Are you clear about this talk?)

The Judges' Rules provide a guide to the conduct of records of interview. They originated in 1906 in a letter from the Lord Chief Justice and were later added to and explained. In 1964 the Judges of the Queens Bench Division approved of new Rules. It has been recognised the rules are a guide in this country: see R v Amo and Amuna [1963] PNGLR 22 and R v Demana–Harina [1965–66] PNGLR 144 where Mann CJ said (at 145):

"I think, therefore, that I should regard each set of Rules as...