Uda Liki Gasika v The State [1983] PNGLR 58

• Jurisdiction: Papua New Guinea
• Judge: Andrew J, Kaputin J, Gajewicz J
• Judgment Date: 15 March 1983
• Citation: [1983] PNGLR 58
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC245

Full Title: Uda Liki Gasika v The State [1983] PNGLR 58

Supreme Court: Andrew J, Kaputin J, Gajewicz J

Judgment Delivered: 15 March 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

UDA LIKI GASIKA

V

THE STATE

Waigani

Andrew Kaputin Gajewicz JJ

23-25 November 1982

15 March 1983

CRIMINAL LAW — Evidence — Confessions — Admissibility — Determination of on voire dire — Principles applicable — Whether judge may read confession to determine admissibility — Discretionary powers — Exercise of discretion.

EVIDENCE — Confessions — Admissibility — Voire dire to determine — Discretionary powers — Whether judge may read confession to determine admissibility.

Held

(1) On a voire dire to determine whether a confession is admissible the matters for determination are:

(a) the question of its voluntariness; and

(b) the question whether in all the circumstances of the case it would be unfair to admit the material against the accused.

(2) A trial judge has, apart from the particular discretion to exclude evidence of a confessional statement, a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value.

(3) Whether the trial judge reads the confessional material on the voire dire or not is a matter which goes to the exercise of this general or residual discretion.

(4) Semble, the better practice, in most cases, is for the trial judge to hear the evidence of both sides on the voire dire and then to consider, with the help of any submissions from counsel, whether there might be some assistance obtained from looking at the document.

(5) Where a trial judge has, in the exercise of his discretion, read confessional material on a voire dire (which is subsequently admitted in evidence) an appellate court may interfere with the exercise of that discretion only where the trial judge has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration.

Zacharia v. Republic of Cyprus [1963] A.C. 634, at 661, followed.

(6) On a voire dire to determine whether a confession is voluntary the confessional material should not be read aloud to the court prior to deciding the question of its admissibility.

Cases Cited

Cleland v. The Queen (1982) 57 A.L.JR. 15.

McDermott v. The King (1948) 76 C.L.R. 501.

MacPherson v. The Queen (1981) 147 C.L.R. 594.

Ibrahim v. The King [1914] A.C. 599.

R v. Grondkowski [1946] 1 K.B. 369.

R v. Ireland (1970) 126 C.L.R. 321.

R v. Lee (1950) 82 C.L.R. 133.

R v. Suk Ula [1975] P.N.G.L.R. 123.

R v. Toronome-Tombarbui [1963] P.N.G.L.R. 55.

R v. Wendo and Others [1963] P.N.G.L.R. 217.

R v. William Taupa Torarula and Others [1973] P.N.G.L.R. 140.

State, The v. Bisket Uranguae Pokia [1980] P.N.G.L.R. 97.

Ura Francis Miriva v. The State (Unreported Supreme Court judgment No. SC197 dated 7 March 1981).

Wendo and Others v. The Queen (1963) 109 C.L.R. 559.

Wong Kam-Ming v. The Queen [1980] A.C. 247; (1979) 69 C.A.R. 47.

Zacharia v. Republic of Cyprus [1963] A.C. 634.

Appeal

This was an application for leave to appeal against conviction on a charge of rape.

Counsel

C. Bruce, for the appellant.

K. Roddenby, for the respondent.

Cur. adv. vult.

15 March 1983

ANDREW J: The appellant was convicted at the July 1982 sittings of the National Court at Waigani upon a charge that he, on 15 June 1981 in Papua New Guinea, committed rape upon one Boni Virobo. He received a sentence of three years imprisonment with hard labour. He now seeks leave to appeal against his conviction upon some seven grounds. The appeal against sentence has been abandoned.

Upon the trial it was not in dispute that on this night the prosecutrix and her girlfriend, one Olive Mea, had been to the pictures at Wards Strip. They accepted a lift in the direction of home with some strangers and were deposited at Koki market. There they were met by the appellant and his co-accused (who were acquitted on the trial) who were in a bus driven by the appellant. They were given a lift towards their home at Hanuabada but the bus did not stop there and continued on. Thereafter, sexual intercourse took place when the bus was driven up a side road and stopped. The appellant maintained that it was by consent and this was denied by the prosecutrix. During the hearing objection was made to the tender in evidence of a record of interview conducted between the appellant and Constable Julie Wagambie on the 16 June 1981, at the Boroko police station. The learned trial judge conducted a hearing on the voire dire and ultimately the record of interview was admitted into evidence.

The proceedings on the voire dire give rise to the first ground of appeal namely:

"Ground 1:

(a) The learned trial judge erred in ordering the record of interview of the appellant to be read aloud to the court prior to deciding the question of its admissibility on a voire dire hearing.

(b) The learned trial judge erred in taking such record of interview into his possession and perusing same during the voire dire hearing.

(c) The learned trial judge erred in questioning and allowing prosecuting counsel to question the appellant in relation to question and answer 33 of the said record of interview.

(d) The learned trial judge erred having asked questions of the appellant in relation to question and answer 33 in the said record of interview and in allowing prosecuting counsel to do same, in not allowing the appellant's counsel to ask questions of the appellant as to the meaning of his answer to Q.33 — 'no we forced her'.

(e) The learned trial judge erred in failing to disqualify himself from proceeding with the trial against the appellant after allowing the appellant's record of interview to be read aloud to the court prior to ruling on its admissibility."

In my view grounds 1 (a), (b) and (e) may be dealt with together, for they raise the question of a judge's access to the contents of a record of interview upon a voire dire hearing.

In jurisdictions where there is a jury there is no difficulty on the voire dire (a trial within a trial) as it is conducted in the absence of the jury. The document is before the trial judge and he must rule on its admissibility on the basis of its voluntariness. If the judge decides to admit the evidence, it is for the jury to determine what weight is to be given to it. If he excludes its tender into evidence, then it is never seen by the jury. In our jurisdiction, the judge is both the tribunal of law and of fact and the argument goes that the trial judge should not read the record of interview on the voire dire for if he later finds it to be involuntary and excludes it then his "jury-half" or the tribunal of fact is aware of its contents. Such a result, it is said, would be prejudicial to the accused for it is impossible for the trial judge to exclude it from his mind. Further, it is submitted that it is only appropriate or necessary for the record of interview to be before the trial judge by the consent o defence counsel.

Mr Roddenby for the State has submitted that it is artificial to talk about the function of a jury in our jurisdiction when there simply is no jury and that it does not assist by referring to jury trials and he says that where the judge is both judge of law and of fact he bears both responsibilities and is entrusted to exercise both functions properly. Whilst this is true there may still be, in my opinion, some circumstances where assistance may be had by reference to jury trials for it can still be said that in our jurisdiction, the judge in a sense is sitting as a jury (see per Taylor and Owen JJ in Wendo and Others v. The Queen (1963) 109 C.L.R. 559 at 573.

In the past, the practice has been for the trial judge to peruse the record of interview upon the voire dire. See generally R. v. Wendo and Others [1963] P.N.G.L.R. 217 and Wendo and Others v. The Queen (supra); R v. William Taupa Tovarula and Others [1973] P.N.G.L.R. 140 at 155 and R v. Suk Ula [1975] P.N.G.L.R. 123 at 125.

The question of admissibility on the voire dire involves firstly the question of voluntariness and secondly the discretionary question whether if in all the circumstances of the case it would be unfair to admit the document against the accused. It seems to me that there may be different considerations in relation to both questions in deciding whether or not a judge may read the document on the voire dire.

The sole object of the voire dire was to determine the voluntariness of the alleged confession in accordance with principles which have been long established by such cases as Ibrahim v. The King [1914] A.C. 599 and many others such as McDermott v. The King (1948) 76 C.L.R. 501, R v. Lee (1950) 82 C.L.R. 133, R v. Toronome-Tombarbui [1963] P.N.G.L.R. 55 and recently restated in MacPherson v. The Queen (1981) 147 C.L.R. 512 at 519, 520 and reaffirmed in Cleland v. The Queen (1982) 57 A.L.JR. 15. A confession will not be admitted unless it was made voluntarily,...