The State v Raphael Walimini (2004) N2621

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 17 June 2004
• Citation: (2004) N2621
• Court: National Court
• Year: 2004
• Judgement Number: N2621

Full Title: The State v Raphael Walimini (2004) N2621

National Court: Sevua J

Judgment Delivered: 17 June 2004

1 CRIMINAL LAW—Armed robbery—Evidence—Confessions—Admissibility—Objections to—Voluntariness contested on voir dire—Standard of proof

2 The State v Allan Woila [1978] PNGLR 99, The State v Kusap Kei Kuya [1983] PNGLR 263 referred to

___________________________

N2621

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 1374 of 1999

CR 1375 of 1999

&

CR 1389 of 1999

THE STATE

v.

RAPHAEL WALIMINI

Kimbe: Sevua, J

2004: 10th, 11th & 17th June

CRIMINAL LAW – Armed robbery – Evidence – Confessions – Admissibility – Objections to – Voluntariness contested on voir dire – Standard of proof

Case cited

The State v. Allan Woila [1978] PNGLR 99

The State v. Kusap Kei Kuya [1983] PNGLR 263

Counsels

F.Popeu

O.Oiveka

17th June 2004

SEVUA, J: This is a trial on indictment in which the accused is charged with one count of attempted armed robbery, one count of armed robbery and one count of unlawful use of motor vehicle.

In the course of the prosecution seeking to tender a confessional statement and the record of interview, the accused raised objections to the tender of these documents on the grounds that the admissions in both documents were obtained under duress after the accused was assaulted by policemen and threats of violence issued to him. The Court should clarify that the objection is not an objection to the tender of the documents as such, but objection to the admissibility of such evidence on the basis of voluntariness.

The accused had filed two notices of objection, firstly on 5th April 2004, and again on 8th June 2004, two days prior to the trial. In the first notice, the accused in a general way, alleged that he was assaulted by policemen in the CID Office prior to the conduct of the interview by the arresting officer, and as a result he suffered pains in his jaws and therefore made confessions in the record of interview under duress. It must be noted that no specific policeman was named in this notice and the nature and details of any injury were not stated. These were allegations of a general nature.

In the second notice filed two days prior to trial, the accused alleged brutality and impropriety against the two prosecution witnesses and also a policeman named as Samson Fanaso, and others he did not named but who were masked. They blindfolded him then assaulted him. They used pocket knives to pierce him all over his body including his backside. He was blindfolded and taken to Buvussi Mountain where he was subjected to further assaults and his body further pierced with pocket knives and forced to confess to the crimes. The blindfold was later removed from his face and he was able to see a bullet being loaded into a shotgun and he was threatened to confess, and as a result of these assaults and threats, he made confessions.

In relation to the Notice of Objection filed on 8th June 2004, the State objected to the defence relying on it because counsel, Mr. Popeu submitted the State was prejudiced because one of the policeman named in the notice, Samson Fanaso was attending a course at Bomana Police College and therefore not available to rebut any evidence against him.

The Court accordingly refused leave to the accused to rely on that notice on the ground that it was unfair to the State because one of the named policemen was unavailable and was unable to defend himself from allegations of assault by him. Besides, the Court was of the view that the accused had had more than ample time to raise these matters adequately in his notice filed on 5th April 2004. That is the subject of another ruling. However, the accused was directed that he could rely on the grounds of objection filed on 5th April 2004.

Following the refusal of leave, the accused made another application for an adjournment so that his notice filed on 8th June would give sufficient time to the State. The Court was asked to adjourned to the next sittings and return to deal with this case. That application was refused and the trial ordered to continue.

In view of the course this trial had taken, a voir dire was then conducted. The prosecution’s evidence came from the Investigating Officer, Detective Constable Mike Phillip, and the Corroborator, Detective Constable Willie Clemus

The two detectives, Micky Phillip and Willie Clemus denied all the allegations of assault and threats made by the accused. They said they did not assault or threaten the accused, and that no other policeman assault or threaten him. They said the confessions were made voluntarily and willingly by the accused.

On the other hand, the accused who also testified on oath said that he was apprehended on 11th October 1998 and was badly beaten up that he almost died. On 12th October...