The State v William Nanua Kapris and Jacob Peningi Okimbari and Collin Masilo and Bonny Solomon and Johnny Gumaira and Damien Inanei and Kito Aso and Joyce Maima and Kia Warren and Bobby Selan and Ruben Micah and Isabelle Kivore and Elvis Bala Aka and Peter Allan Popo (2010) N4139

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 05 October 2010
• Court: National Court
• Citation: (2010) N4139
• Docket Number: CR NOS 251 0F 2010 & 1455, 1457, 1433, 1444, 1447, 235 & 287, 78 & 79, 1459, 1431, 76 & 77, 239, 237 & 235 OF 2009
• Year: 2010
• Judgement Number: N4139

Full Title: CR NOS 251 0F 2010 & 1455, 1457, 1433, 1444, 1447, 235 & 287, 78 & 79, 1459, 1431, 76 & 77, 239, 237 & 235 OF 2009; The State v William Nanua Kapris and Jacob Peningi Okimbari and Collin Masilo and Bonny Solomon and Johnny Gumaira and Damien Inanei and Kito Aso and Joyce Maima and Kia Warren and Bobby Selan and Ruben Micah and Isabelle Kivore and Elvis Bala Aka and Peter Allan Popo (2010) N4139

National Court: Cannings J

Judgment Delivered: 5 October 2010

N4139

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 251 0F 2010 &

1455, 1457, 1433, 1444, 1447, 235 & 287, 78 & 79,

1459, 1431, 76 & 77, 239, 237 & 235 OF 2009

THE STATE

V

WILLIAM NANUA KAPRIS (1st accused),

JACOB PENINGI OKIMBARI (2nd accused),

COLLIN MASILO (3rd accused),

BONNY SOLOMON (4th accused),

JOHNNY GUMAIRA (5th accused),

DAMIEN INANEI (6th accused),

KITO ASO (7th accused),

JOYCE MAIMA (8th accused),

KIA WARREN (9th accused),

BOBBY SELAN (10th accused),

RUBEN MICAH (11th accused),

ISABELLE KIVORE (12th accused),

ELVIS BALA AKA (13th accused) &

PETER ALLAN POPO (14th accused)

Madang: Cannings J

2010: 13, 14 September, 5 October

EVIDENCE –admissions in record of interview – voluntariness – Evidence Act, Section 28

EVIDENCE –admissions – whether circumstances in which police interviews conducted make it unfair for record of interview to be admitted into evidence against an accused – discretion of trial judge to refuse to admit evidence improperly or unlawfully obtained.

During a trial, objection was taken by an accused to the admission into evidence of two records of interview, on two grounds: (i) the statements recorded in each document were made involuntarily (as the accused had been assaulted 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.

Held:

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

(2) The State failed to prove beyond reasonable doubt that the accused made the statements voluntarily.

(3) As the accused was also alleging unfairness arising from the circumstances in which the interviews were conducted, 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.

(4) Unfairness, arising from a succession of police improprieties and human rights breaches, was proven, and the court decided that it would be unfair to allow the accused’s admissions to be admitted in evidence.

(5) The court refused to admit into evidence both records of interview.

Cases cited

The following cases are cited in the judgment:

Constitutional Reference No 1 of 1977 [1977] PNGLR 362

R v Kuras [1964] PNGLR 18

The State v Anton Turik [1986] PNGLR 138

The State v David Yakuye Daniel (2005) N2869

The State v Goi Mubin [1990] PNGLR 99

The State v Joanes Mesak (2005) N2853

The State v Kevin Everitus [1985] PNGLR 109

The State v Kwambol Embogol (1977) N91

The State v Linus Rebo Dakoa (2009) N3586

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

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

Dates

The events referred to in this judgment occurred in 2008 unless otherwise indicated.

VOIR DIRE

This was a voir dire held to determine whether two records of interview should be admitted into evidence.

Counsel

P Kaluwin & A Kupmain, for the State

D Dotaona, for the 1st accused

M Mwawesi, for the 7th, 12th & 13th accused

A E Raymond, for the 2nd, 3rd, 4th, 5th, 6th, 9th & 14th accused

S Daniels, for the 8th, 10th & 11th accused

1. CANNINGS J: This is a ruling on an objection by the 14th accused, Peter Alan Popo, to the admission into evidence of two records of interview, dated 27 August and 20 October 2008.

2. Objection is taken on two grounds:

· First, involuntariness. It is argued that the statements recorded in both documents were made involuntarily. This is the primary ground of objection set out in the notice of voir dire filed on 6 August 2010.

· Secondly, unfairness. This ground of objection is alluded to in the final paragraph of the voir dire notice, where there is a reference to Section 42(2) of the Constitution. Issues of unfairness were also raised in the course of cross-examination of State witnesses.

3. I am going to consider that the objection is based on those two grounds, even though on the face of it the objection was only on the ground of involuntariness. This is not unfair to the State, as it was apparent from the evidence that serious unfairness issues were being raised. Also, the State has had a reasonable opportunity to respond to the serious allegations of breaches of constitutional, or human, rights that have been raised during the voir dire.

4. In giving a broad interpretation to the voir dire notice, I am taking the same approach that I took in The State v Linus Rebo Dakoa (2009) N3586, a Kimbe case in which the accused was charged with two counts of wilful murder and the State relied on a confessional statement, which the accused claimed was extracted from him involuntarily and unfairly. In that case, the involuntariness objection failed but the unfairness objection succeeded.

FIRST GROUND OF OBJECTION: STATEMENTS MADE INVOLUNTARILY

Defence evidence

First defence witness: the accused

5. Peter Alan Popo, a Chimbu man living in Lae, gave sworn evidence that the police arrested him without warrant at his residence in Eagle St, Lae, on the morning of Monday 7 July 2008. The police officers were from the National Crimes Intelligence Unit. He was in a vehicle with his family and the police forced everyone out of the vehicle and forced him to lie on the rain-sodden ground. Guns were pointed at his head and other parts of his body. His house and vehicle were searched.

6. In charge of the police team was Inspector Chris Kunyanban, who assaulted the accused and then ordered that the accused’s family (his stepmother, Jiwaka, his wife and two small brothers) be driven to the police station. The police drove him and a friend, Stanna Koi, around Lae, in the process assaulting him with gun butts, buttons and other weapons and swearing at him, yelling at him ‘Admit! Admit!’, and kicking him while he was lying face down in a Toyota Landcruiser 10-seater. Two vehicles were used.

7. He and Stanna Koi were taken to Namanula Hill and pulled out of the vehicle. He was further assaulted badly, a gun was cocked and pointed at his leg. He was crying and shouting. They were taken to Top Town police station and Stanna was left there. He was driven to the town market area and asked more questions about the BSP Madang robbery. He was taken to Maus Markham where a heavy chain was placed around his neck. He was made to lie face down in the vehicle, still with the chain around his neck. The vehicle was driven through potholes and the policemen had their boots on his back. At one stage the vehicle was driven to Kamkumung as the police were searching for an escapee, then to Town, then back to Kamkumung. He was told by a mobile squad member: ‘If you do not talk, Chris will kill you. Chris is very angry about the escape. When he comes you should talk.’ So he asked them to get Chris.

8. He was taken to the police station at about 4.00 pm. Inspector Kunyanban came, and the chain was removed but he said ‘I do not think he will give us a correct story, so take him out again’. This time, he was driven to Malahang, then to Voco Point, back to Malahang and past the Besta factory. By this time it was 12 midnight or 1.00 am on 8 July. He was taken to a house where he thought he would be assaulted or shot. He told the police that he would tell them whatever story they wanted. He asked again that they call Chris, which they did.

9. He was taken back to the police station. By this time it was about 2.00 am on Tuesday 8 July. He made a confessional statement. He was shown a photo file and asked to say if he knew the people and he said yes. He was in fear and pain and signed a statement before Chris Kunyanban and George Avali. The police charged him with kidnapping and unlawful deprivation of liberty and locked him up in the cell.

10. He was later taken to Madang and detained at the Jomba cell. He was taken to the CID office at Madang police station for an interview. Chris Kunyanban was in Madang at that time. For the first interview, he told the police that he wanted to see a lawyer. His father had engaged Bilding Tabai of Tabai Lawyers but his phone was off. Sgt Ray Ban, who conducted the interview, told him ‘You should say what you have already stated’. Sgt Ban said ‘If you do not talk, we will get Chris’. He was in fear. He had already heard Inspector Kunyanban tell Sgt Ban and others ‘This man will co-operate with you. If he does not, you tell me’. Sgt Ban said ‘There is no other time, you should co-operate. It will assist you in your case’. The police forced him to agree to names of people that he did not know.

11. As for the second interview, the police said that they had missed some questions and needed to do another...