The State v Towes Minmin (2005) N2915

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 06 October 2005
• Citation: (2005) N2915
• Docket Number: CR No 1278 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2915

Full Title: CR No 1278 of 2004; The State v Towes Minmin (2005) N2915

National Court: Lenalia J

Judgment Delivered: 6 October 2005

N2915

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1278 OF 2004

THE STATE

-V-

TOWES MINMIN

KOKOPO: LENALIA, J.

2005: 26th August & 6th Oct.

Criminal Law – Confessional statement – Record of interview – Admissibility of –

Voire dire – Standard of proof – Whether admission made voluntarily – Particulars of assault – Inability of accused to particularize the assault.

Evidence – Record of interview and Admissions – Discretion to exclude –

Impropriety of police investigating team – Accused assaulted when first arrested – Record of interview and confession statement obtained three days latter.

Criminal Law – Practice and procedure – Conduct of the record of

interview – Caution under s. 42 (2) of the Constitution administered to accused – Failure to afford facilities to enable accused to see a lawyer or member of his family of his choice – Record of interview – Contrary procedures – Record of interview unfairly obtained amounting to unfairness or impropriety.

Criminal Law – Practice and Procedure – Constitutional rights – Right to

full protection of the law – Right to communicate with a lawyer of his choice – Right to consult family member in absence of lawyer.

Practice and procedure – Admissibility – Discretion – Record of interview

– Admissibility of – Discretionary powers – Record of interview rejected. Alleged assault by arresting officers on accused – Assault three days before confessional statement obtained – Whether accused can raise impropriety in fear that if he does not answer questions put to him leading to the confessional statement being obtained – Confessional statement inappropriately and unfairly obtained.

Held: (1) Where the accused was assaulted a few days before the

confessional statement was taken and where it is established that, the accused was in fact assaulted at the time of arrest, the confessional statement could not be accepted as the accused believed that if he could not confessed to the interviewing office would result in him being assaulted was overborne and must be take as undue insistence and pressure and therefore the confessional statement must be rejected.

(2) Evidence of compliance with s. 42 (2) of the Constitution being afforded to the accused, however the record of interview was not suspended in order to enable the accused to see a lawyer, friend or member of his family was improper and contrary to the Constitutional Rights envisaged in s.42 (2) of the Constitution and thus it is unconstitutional. Record of interview must be rejected.

Cases Cited:

The State v Allan Woila [1978] PNGLR. 99.

Supreme Court Reference No. 1 of 1977 [1977] PNGLR. 362.

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

McDermott v The King [1948] 76 CLR. 501.

The State v Joanes Mesak (2005) CR. No. 1563 of 1995.

The State v Towo Willy & 6 Others (2004) CR. 342 – 351 of 2003.

R v Wendo [1963] PNGLR. 271

Maxwell Arthur Schiebs v H Singh [1981] PNGLR. 364

The State v Paul Brian Steven (2004) CR. 342-351 of 2003

L. Rangan, for the State

T. Potoura, for the Accused

6th October 2005.

LENALIA, J: The accused Towes Minmin of Taui No. 1 village, Bitapaka Local Level Government, East New Britain Province is charged with one count of armed robbery an offence contrary to s. 386 (1) (a) (b) and (c) of the Criminal Code. When he was arraigned, he entered a not guilty plea.

On instructions to his lawyer, the accused alleged two constitutional flaws occurred to him before and during the record of interview were caused to him by first; the arresting officers on the scene bitterly assaulted him. Then when he was being transported from the place where he was arrested, between the place of arrest and the Kokopo Police Station, he was further assaulted by the investigating team.

The second assault is supposed to have occurred at Takubar near Papindo Trading Supermarket. The second allegation put up by the accused during the voir dire trial was and is that, after he was given his s.42 (2) (a) (b) and (c) Constitutional rights to consult and communicate without delay in private with either a member of his family, a personal friend a lawyer of his choice or the Public Solicitor, he was not given the benefit of seeing anyone of the above named persons.

The following is my ruling on the voir dire trial conducted on the 20th 23rd and the 24th of August 2005.

After the accused was arraigned, he pleaded not guilty and the Court enquired with both counsels if there were any documents intended to be tendered by consent. The State Prosecutor sought to tender the record of interview conducted between the accused and the interviewing officer and the two corroborators. Mr. Potoura of counsel for the accused also indicated that, they would also object to the tender of an undated confessional statement obtained from the accused at the Kokopo Police Station.

There are two reasons raised by the defence against the tender of the record of interview and the confessional statement. First they say that the accused was overborne at the time the confessional statement was obtained and secondly that, the record of interview was obtained contrary to s.42 (2) (b) and (c) of the Constitution.

The State called four witnesses. The first of those witnesses was one Constable Nicholas Taolo.

His evidence is that, on the 10th of April, he was amongst a group of three policemen which attended to the complaint being laid at the Kokopo Police Station about an armed robbery which occurred at Ramale village near Balada. The policemen went there to conduct a search in relation to an armed robbery which had occurred some few days before the search was conducted.

Upon their arrival at Ramale village, the three policemen produced the Search Warrant taken out by the police pursuant to s.5 of the Search Act (Ch.341). to search the house of Raphael who is married to the accused’ sister. The Search Warrant was produced to Raphael’s wife and according to Nicholas, as soon as Raphael’s wife was shown the search warrant, they started to search the kitchen then the house.

Nicholas said when he searched the kitchen, he found therein three (3) KG. packets of rice placed or packed into a plastic bag. He said, he was suspicious over the manner in which the plastic was put under the bed on the ground and after he had picked the plastic up, he asked the accused and his sister as to where the rice came from, the accused sister said; she bought them from the store. He further asked them why, the plastic was hidden under the bed instead of putting it where food is usually stored or put somewhere on the table.

This witness further said, when he asked the accused and his sister, they did not reply as to why the rice was hidden under the bed. When they did not answer, he led them away to the police vehicle.

It is clear from Nicholas’ evidence that he latter walked into the room of the house where the accused was sleeping when he heard them talking with the other two policemen.

After he joined his colleagues, the witness said they searched the room and the house thoroughly and after searching they found some bathing and laundry soap. Together with the quantity of soap, they also found some box of matches and some batteries. They took all these properties to where the police vehicle was parked.

In cross-examination, Constable Taolo was asked, as to where was the accused being questioned after the search was completed in both the kitchen and the house. He replied that, the accused was being questioned after he had been taken outside. He was further asked if he was on the scene physically when the accused was being questioned and in answer said he was there hearing the questioning being put to the accused.

Nicholas was further asked if it was correct that, when the accused was being asked about where the quantity of goods was taken, it was there and then that, the accused was beaten up very severely. This witness denied allegations by the defence that, the accused was beaten and brutally assaulted outside his sister’s house.

The next witness called was Constable Bernard Tutmulai. He affirmed what the first witness said and went further to say that, when the accused was being question outside the house, the accused admitted that the properties were being the portion of the goods stolen from the trade store in Ramale village.

This witness denied assaulting the accused in cross-examination. It was put to this witness that, the reason why, the accused admitted to having the said properties in his possession was because, he was first brutally beaten up outside the house where the accused was found then latter at Papindo near Takubar. This witness answered in the negative

The next witness evidence was rather interesting in the sense that, she was the interviewing officer in this case but her memory faded much in terms of remembering what occurred to the accused during the record of interview. Policewoman Constable Kolish Moab could not recall the date on which, she interviewed the accused. She recalled however that, when the accused was brought in, he was verbally cautioned and a confessional statement was obtained.

Asked in cross-examination if prior to the accused giving the confessional statement he was assaulted,...