The State v Linus Rebo Dakoa (2009) N3586

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 February 2009
• Citation: (2009) N3586
• Docket Number: CR NO 77 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3586

Full Title: CR NO 77 OF 2008; The State v Linus Rebo Dakoa (2009) N3586

National Court: Cannings J

Judgment Delivered: 9 February 2009

N3586

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 77 OF 2008

THE STATE

V

LINUS REBO DAKOA

Kimbe: Cannings J

2008: 14, 16 October;

2009: 9 February

RULING

EVIDENCE – confessions and admissions – voluntariness – Evidence Act, Section 28.

EVIDENCE – confessions and admissions – whether circumstances in which confessional statement made and police interview conducted make it unfair for those statements to be admitted into evidence against an accused – discretion of trial judge to refuse to admit evidence improperly or unlawfully obtained.

CONSTITUTIONAL LAW – human rights of person arrested on suspicion of having committed an offence – meaning of arrest – right to full protection of the law – right to silence – right to be informed of rights – duty of police to bring detained person before a court “without delay” – Constitution, Sections 37(1), 42(2), 42(3).

The accused was indicted on two counts of wilful murder. At the trial, objection was taken by the defence to the admission into evidence of a confessional statement and record of interview, on two grounds: (i) the statements recorded in each document were made involuntarily (as the accused had been assaulted and shouted at by police officers) and (ii) it would be unfair to allow the statements to be admitted into evidence, as the police acted improperly and breached the accused’s human rights. The State responded by submitting that there was no good evidence to show that the accused had been assaulted or ill-treated. As to the alleged unfairness arising from improper police procedures and breach of human rights, these matters were not included in the notice of objection and ought not be considered by the court.

Held:

(1) As the accused gave evidence of being assaulted and shouted at by police officers, it is up to the State to prove beyond reasonable doubt that the statements were made voluntarily.

(2) The State proved beyond reasonable doubt that the accused was not assaulted in such a way that he was overborne when he signed the confessional statement and when he participated in the police interview and signed the record of interview.

(3) Ground 1 of the objection was dismissed.

(4) When determining an objection to admission of a confessional statement or record of interview the court is not bound by the terms of a notice of objection; particularly where human rights breaches are alleged, as the court is authorised, and may in the circumstances of a particular case be obliged, to make orders under Section 57 of the Constitution for enforcement of such rights.

(5) Here, serious human rights breaches were alleged and it was apparent from cross-examination of the police witnesses what the nature of the alleged breaches were, so it was not unfair to the State to allow those allegations to be determined on their merits, even though they were not included in the formal notice of objection.

(6) As the accused was alleging unfairness arising from the circumstances in which the statements were obtained, it is the accused who bears the onus of proving unfairness on the balance of probabilities and of convincing the trial judge that the discretion should be exercised to refuse to admit the statements into evidence.

(7) Unfairness, arising from a succession of police improprieties and human rights breaches, was proven, in that:

(a) the accused was not informed of and afforded his right of access to a relative or friend and a lawyer immediately after his arrest and detention, contrary to Section 42(2) of the Constitution;

(b) he was not informed of and afforded his Section 42(2) rights prior to the taking of his confessional statement;

(c) he was in custody for 13 days before an attempt was made to inform him of his Section 42(2) rights;

(d) the record of interview was taken without him being properly informed of and afforded his Section 42(2) rights;

(e) he was not brought before a court after his arrest and detention, without delay, contrary to Section 42(3) of the Constitution;

(f) he was unlawfully detained, without charge or judicial remand, for a period of at least two weeks;

(g) his confessional statement and record of interview were obtained during the period of unlawful detention;

(h) he was required, unfairly, to undertake a formal interview after having already signed a confessional statement.

(8) The breaches of the human rights provisions of the Constitution, as well as other aspects of improper conduct on the part of the Police, were so extensive and serious, it would be unfair to allow the accused’s admissions to be admitted in evidence.

(9) Ground 2 of the objection was upheld.

(10) The court accordingly refused to admit into evidence the confessional statement and the record of interview.

Cases cited

The following cases are cited in the judgment:

Constitutional Reference No 1 of 1977 [1977] PNGLR 362

John Alex v Martin Golu [1983] PNGLR 117

R v Kuras [1964] PNGLR 18

R v ToVarula [1973] PNGLR 140

Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022

Schliebs v Singh [1981] PNGLR 362

SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556

The State v Allan Woila [1978] PNGLR 99

The State v Anton Turik [1986] PNGLR 138

The State v David Yakuye Daniel (2005) N2869

The State v Ereman Donald Kanailom (2008) N3273

The State v Joanes Mesak (2005) N2853

The State v John Michael Awa and Others (2000) N2012

The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00

The State v Joseph Maino [1977] PNGLR 216

The State v Kevin Everitus [1985] PNGLR 109

The State v Kusap Kei Kuya [1983] PNGLR 263

The State v Kwambol Embogol (1977) N91

The State v Lucas Soroken and Others (2006) N3029

The State v Mana Turi [1986] PNGLR 221

The State v Michael Balana (2007) CR 552 of 2003

The State v Paro Wampa [1987] PNGLR 120

The State v Richard Saku (No 2) (2006) N3283

The State v Robin Erick (2006) N3023

The State v Silih Sawi [1983] PNGLR 234

The State v Simon Tanuma [1999] PNGLR 475

The State v Suk Ula (No 1) [1975] PNGLR 123

The State v Towes Minmin (2005) N2915

Uda Liki Gasika v The State [1983] PNGLR 58

Abbreviations

The following abbreviations appear in the judgment:

AJ – Acting Judge

CID – Criminal Investigation Division

Const – Constable

CR – criminal case

J – Justice

N – National Court judgment

No – number

OIC – officer-in-charge

PNGLR – Papua New Guinea Law Reports

SCR – Supreme Court Reference

Sgt – Sergeant

Snr – Senior

V – versus

VOP – village oil palm

Dates

The events referred to in this judgment occurred in 2007 unless otherwise indicated.

VOIR DIRE

During the course of a trial objection was taken to the admission into evidence of a confessional statement and a record of interview and a voir dire was held to determine whether the documents should be admitted into evidence.

Counsel

F Popeu, for the State

M W Norum, for the accused

9 February, 2009

1. CANNINGS J: The accused, Linus Rebo Dakoa, a young man from Bali Island, West New Britain, is charged with two counts of wilful murder, allegedly committed at Morokea oil palm settlement near Kimbe on Saturday 20 October 2007. The deceased persons are a mother, Maria Willie, aged 27, and her daughter, Jessica Willie, aged two years.

2. The accused has pleaded not guilty and a trial has commenced. During presentation of the State’s case, the prosecutor, Mr Popeu, tendered two documents through the police investigator, First Const Petha Yakoyagi:

· a confessional statement by the accused; and

· the accused’s record of interview.

3. The documents, which have been signed by the accused, contain incriminating statements admitting his involvement in the murders. Objection to their admission into evidence was taken by defence counsel, Mr Norum, on two grounds:

1 the statements recorded in each document were made involuntarily (as the accused was assaulted and shouted at by police officers before he signed the documents); and

2 the statements were obtained unfairly, following a breach of the accused’s human rights.

4. A voir dire (a hearing within the trial, pronounced ‘vwah dear’) has been held for the purposes of deciding on the objection and determining whether the documents should be admitted into evidence.

5. I have read both documents for the purposes of determining the objection, in accordance with the guidelines set out by the Supreme Court in Uda Liki Gasika v The State [1983] PNGLR 58 (also see R v ToVarula [1973] PNGLR 140).

FIRST GROUND OF OBJECTION: STATEMENTS MADE INVOLUNTARILY

The allegations

6. The accused gave sworn evidence that he was assaulted and shouted at by police officers. He said that on the morning of Saturday 20 October, when the police came to Morokea to investigate the deaths, four police officers assaulted him. He fell, and got kicked in the jaw. The one who was really rough on him was Const Peter Wende. The accused said he told the police that he was not responsible for the killings but they would not believe him. They took him to Kimbe police station, to the office of the arresting officer, First Const Yakoyagi. They told him if he did not co-operate, they would take him to the...