The State v Mana Turi [1986] PNGLR 221

• Jurisdiction: Papua New Guinea
• Judge: McDermott AJ
• Judgment Date: 18 October 1986
• Citation: [1986] PNGLR 221
• Court: National Court
• Year: 1986
• Judgement Number: N579

Full Title: The State v Mana Turi [1986] PNGLR 221

National Court: McDermott AJ

Judgment Delivered: 18 October 1986

1 Constitutional law—Constitution s37(1), Constitution s42 form basis of any consideration of police impropriety with persons detained—"the right to the full protection the law" discussed

2 Criminal law—continued reference to Judges Rules confusing and unnecessary—doubt whether part of underlying law as such—relevant consideration only—constitutional basis of considering fairness and propriety of police conduct

3 Criminal law—evidence—discretion to reject admissions by accused—consideration of police conduct in all the circumstances

4 Police—formulation of questions to determine if acted with fairness and propriety towards persons detained and questioned

EVIDENCE—Confessions and admissions—Discretion to exclude—Unfairness to accused—Constitutional basis for exercise of discretion—Fairness and propriety of police conduct relevant—Whether Judges' Rules applicable—Record of interview—Taken five days after two confessions and whilst uncharged and in custody—Record of interview rejected—Constitution, s37(1), s42(2), (3) and (4).

CRIMINAL LAW—Evidence—Confessions and admissions—Discretion to exclude—Unfairness to accused—Constitutional basis for exercise of discretion—Fairness and propriety of Police conduct relevant—Whether Judges' Rules applicable—Record of interview—Taken five days after two confessions and whilst uncharged and in custody—Record of interview rejected—Constitution, s37(1), s42(2), (3) and (4).

CONSTITUTIONAL LAW—Constitution of the Independent State of Papua New Guinea—"The right to the full protection of the law"—Constitution, s37(2).

POLICE—Questioning of persons in custody—Formulation of proper conduct.

CRIMINAL LAW—Practice and procedure—Questioning of persons in custody—Formulation of proper conduct.

On 20 September an accused was detained in custody on suspicion for questioning in relation to a murder committed on 19 September. Following questioning on the day of detention the accused made a full oral and written confession. On 25 September, no charge having been laid, the accused was questioned at length by an officer who was unaware of the confessional material and a record of interview taken and signed.

On objection to the admissibility of the record of interview,

Held:

(1) In exercising the judicial discretion to exclude evidence of confessions and admissions on the ground of unfairness, regard should be had to any breach of the rights given by the Constitution, s37(1), (the full protection of the law) and s42(2), (3) and (4) (the rights of persons arrested or detained), judged according to the degree of seriousness or impropriety involved.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 372, 380, considered.

Quaere whether the Judges' Rules 1912 are part of the underlying law of Papua New Guinea.

The State v Win Kwainfelin [1986] PNGLR 106 and The State v Anton Ames Turik [1986] PNGLR 138, considered.

(2) The Judges' Rules are to be treated as a statement about police conduct: conduct which may be investigated and considered for signs of impropriety or unfairness, and if so found, to be considered, inter alia, in the exercise of the judicial discretion to admit or reject evidence of confessions or admissions so obtained.

R v Lee (1950) 82 CLR 133 at 154 and McDermott v R (1948) 76 CLR 501 at 511, considered.

(3) In the circumstances the five days detention, the giving of two full confessional statements, the continued detention without charge or judicial remand followed by a full question and answer record of interview amounted to impropriety which breached the spirit and intent of the Constitution, s37(1) and s42(3)(b), and the record of interview should be rejected.

Formulation of the type of conduct expected of police officers in relation to obtaining evidence from persons questioned or in custody.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362, McDermott v R (1948) 76 CLR 501, R v Amo and Amuna [1963] PNGLR 22, R v Gelu–Gaua (1962) No256, R v Lee (1950) 82 CLR 133, The State v Anton Ames Turik [1986] PNGLR 138 and The State v Win Kwainfelin [1986] PNGLR 106 referred to

Voir Dire

During the course of a trial on a charge of murder, objection was taken to the tender of a record of interview on ground that it was not voluntarily obtained and on the ground of general unfairness.

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McDermott AJ: At the trial I gave short reasons for rejecting the reception of a record of interview into evidence. I now publish my reasons in full.

During the course of the evidence of the first prosecution witness, a village councillor, defence counsel indicated to me that the record of interview obtained from the accused would be objected to on the basis that it was involuntary and obtained as a result of ill–treatment. I then heard evidence on the trial generally, giving the State leave to recall any witnesses who might be necessary at the anticipated voir dire hearing if the record of interview was to be tendered later through the investigating officer.

As a result of this course I then heard the following evidence. The victim was murdered on 19 September 1985 at Aiyeletus Village, Kompiam. The village councillor contacted the police and on 20 September advised them of a number of likely suspects—"the likely troublemakers" in the village. Six young men were taken to the mission hall for the police "to check" if there was anything suspicious about them. The accused was noticed as having blood stained clothes: a headband, shorts and underpants. The six youths were then taken to Kompiam police station and placed in a cell together. At that stage they had not been arrested or charged. They were detained on suspicion for questioning. At the cells Constable Ningiga, a general duties policeman, and not in charge of the investigation, questioned the six young men as a group with the aid of the police interpreter and in the presence of the village councillor. The suspects said nothing. The village councillor then questioned them generally as a group. He spoke in the Enga language in the following terms: "In our place there is a problem, a trouble and as your councillor I want to know if anyone of you was involved because this lady comes from a place long way away and has been kind." After he said that the accused came up to the cell door and made a very detailed admission:—he killed the woman after a struggle, he had intended to threaten her with a knife so that she would consent to his sexual advances. At the time of this conversation the police constable and interpreter were standing nearby. The constable had no idea of what was being said as he did not understand the language used. However, after the admission was made, he was immediately informed by the interpreter of what was said. The accused was then taken to an office where this admission was recorded: "He admitted it saying exactly what he told us at the cells." The accused signed this document. It is not in evidence for reasons which will become clear.

The constable and councillor returned to the village where various things mentioned in the admission were seen to conform with what they had been told—important circumstantial evidence. All these occurred on 20 September.

In the meantime the investigator was more concerned with the return of the body and of the deceased's family to Kainantu. This took four days. On 25 September the investigator conducted a record of interview. He neither knew of Constable Ningiga's investigative work nor of the signed admission. That was given to him later, some days after the record of interview. Ningiga has not seen the document since.

That was the evidence on the trial at the...