The State v Simon Tanuma

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 04 June 1999
• Citation: [1999] PNGLR 475
• Court: National Court
• Year: 1999
• Judgement Number: N1872

National Court: Injia J

Judgment Delivered: 4 June 1999

N1872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 804 OF 1998

STATE -v- SIMON TANUMA

Lae : Injia, J.

1999 : May 7, 10, 11, 17, 18

June 4

Criminal law - Confessions - Record of Interview - Voir dire - Record of
intervew preceded by confessional statement - Confessional statement not sought to
be tendered in Court by the State - Record of interview conducted in unfair
circumstances - Ground for exercise of discretion - Record of Interview rejected.

Cases cited in the judgment:

The State -v- Anton Turik [1986] PNGLR 138.

The State -v- Mana Turi [1986] PNGLR 221.

R -v- Lee [1950] 82 CLR 133

R. Popeu for State

A. Raymond for the accused

4 June 1999

Injia, J.: The accused pleaded not guilty to one count of armed robbery laid under S.386 of the Criminal Code. He denied State allegations that on 6/2/98 at about 7.30p.m. at Salamanda Street, Lae he together with 4 others armed with 2 home-made guns, a home-made pistol and a bushknife held up one Zerry Nanong as he was driving into his house with his family, threatened him and got hold of his Toyota Hilux, Reg. No. LAE455 and drove it away. In the course of decamping from the area, they shot Zerry on his right leg and caused serious injuries.

The evidence for the State admitted at the trial is both documentary and oral. The documentary evidence admitted by consent are as follows:

1. Certified statement of Zerry Nanong - Exhibit “A” (St).
2. Certified statement of Irene Masue - Exhibit “B” (St).
3. Certified statement of Helen Alaung - Exhibit “C” (St).
4. Certified statement of Frida Ruben - Exhibit “D” (St).
5. Certified statement of Rebecca Nanong - Exhibit “E” (St).
6. Certified statement of John Akoko - Exhibit “F” (St).
7. Certified statement of Silas Taliva - Exhibit “G” (St).
8. Certified statement of Basawe Anzu - Exhibit “H” (St).
9. Certified statement of Dr. W. Kurapa - Exhibit “I” (St).

Oral evidence was given by Det. Const. Kelly Kaisa in relation to the record of interview (ROI) containing admissions which was conducted between himself and the accused. The State sought to tender it through Const. Kaisa. The defence counsel objected to its tender on the following grounds:-

“1. ASSAULTS

The accused was badly bashed up by Task Force and Dog Unit members on 6th
February when he was picked up. Then locked in the cells.

He was further assaulted on the 7th February and 8th February.
“2. THREATS OF FURTHER ASSAULTS

On 7th Feb. there were many CID personnel in the Office when he was asked to
tell his story. They said “paitim em, paitim em”. Then on 8th Feb. taken out
against and interrogated when Max Makeso said “The victim saw you so don’t
try to deny” or words to that effect. Also present were Kelly, Paliau and others.
During the Record of Interview conducted on 5 March 1998, Detective Kaisa
had an iron rod and the piece of rubber hose on the table which made the
accused apprehensive.

These acts by the CID amounted to involuntariness, thus contravened section 28
of the Evidence Act and violated section 42(2) of the Constitution.”

As a result, a voir dire was conducted in which constable Kaisa, Const. Fred Rimbao and Const. Max Makeso gave evidence for the State. The accused gave sworn evidence. After hearing submissions on the vior dire, I reserved my ruling, which I now hand down.

As the offence was committed at night and in terrifying circumstances, most of the eye witnesses including the victim Zerry were unable to identify the suspects. Therefore, the accused’s admissions, if any, are critical in this trial. It is not disputed that police recovered the victim’s vehicle the same night and apprehended the accused from inside the vehicle with the other suspects on 6/2/98. The accused’s story now is that he was drunk and asked by the other suspects to accompany him for a ride in the vehicle. Not knowing it was stolen, he joined them, only to be apprehended by police the same night.

The accused claims he was beaten up badly by the task force police when he was apprehended. There is no evidence from the task force policemen who apprehended him, to counter his evidence. The question is whether the accused was assaulted on 6/2/98 for the purpose of extorting a confession from the accused at the scene of his apprehension. There is no clear evidence from the accused on this aspect. It is also not clear from the accused’s evidence whether or not the force used against him was reasonable force necessary to execute arrest and prevent escape, as so authorised of police by law. Mr Popeiu for the State submits that force may have been used, and if it was, then it would have been lawful.

The accused’s allegations essentially relate to what happened; (1) at the Lae Police Station the next day after he spent the night in the police cells, that is on 7/2/98; (2) what happened on 8/2/98 at the police station and (3) what happened on 5/3/98 at the same police station when the interview was conducted.

There is no dispute that on 7/2/98, the accused was taken out from the cell by Const. Kaisa and a confessional statement was taken. The accused says Max Makeso and other policeman, “Kelly, Paliau and others” were also present at the CID office and they threatened to hit him if he denied because the victim saw him. He says they actually assaulted him with a piece of...