State v Michael Balana (2007)

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 21 March 2007
• Citation: (2007)
• Docket Number: CR 552 of 2003
• Court: National Court
• Year: 2007

Full Title: CR 552 of 2003; State v Michael Balana (2007)

National Court: Lay J

Judgment Delivered: 21 March 2007

CRIMINAL LAW—voir dire - confessional statement - record of interview - Judges Rules - Constitution s.42(2) - Evidence Act s.28.

Facts

The accused was arrested in the early hours of the morning of 4 December 2002 and bashed by police until he mentioned names of persons in answer to their demand to know "who he was with". On the afternoon of that day a "confessional statement" was taken. The first question was asked without administering the judges rules caution. No Constitution Section 42 (2) caution was administered. It appeared that the accused did not understand the judges rules caution he was given concerning his right to remain silent. The confessional statement was followed 10 minutes later by a record of interview, which was suspended for two months when the accused asked to see his sister. During the two months the accused was unlawfully held at Kerevat CIS without charge. On resumption of the interview on 3 February 2003, there was no evidence that the police made any effort to obtain a visit from the accused’s sister. The judges’ rules warning on the right to remain silent was repeated but the Constitution Section 42 (2) caution was not repeated. The confessional statement was read to the accused when he gave answers inconsistent with its contents.

Held

1. The accused was entitled to a Constitution section 42(2) caution immediately on being brought to the police station;

2. The accused was entitled to real efforts from the police to obtain a visit from his sister and there was no evidence this had been done;

3. The court could not be satisfied that the confessional statement was not induced by the bashing the accused received that morning and consequently the confessional statement was inadmissible pursuant to Evidence Act Section 28;

4. A break of two months in the middle of the record of interview was too long to regard the two parts of the interview as one event. On resumption of the interview the accused should have been advised again of his Constitution s.42 (2) rights.

5. The circumstances of the record of interview were grossly unfair to the accused;

6. The practice of taking a confessional statement followed by a record of interview is improper and should be discouraged.

7. Pursuant to Constitution Section 57 question and answer 25 to the end of the record of interview will not be admitted into evidence.

PNG Cases Cited

R v Wendo [1963] PNGLR 242; The State v Kiki Hapea [1985] PNGLR 6; R v Sira Kuras [1964] PNGLR 18; R v Fari Pako (1962) No. 259; R v Emanuel Patrick-Domara (1953) No. 43; The State v Joseph Maino [1977] PNGLR 216; R v Gelu-Gaua (1962) No. 256; The State v. August Toiamia. (Is 1978) N145; R v Amo and Amuna [1963] PNGLR 22l; R v Wendo [1963] PNGLR 217; State v Peter Moripi and Gaela Wagisa [1987] PNGLR 356; R. v ToVarula [1973] PNGLR 140; Uda Liki Garika v The State [1983] PNGLR 58; Constitutional Reference No.1 of 1977; [1977] PNGLR 362; State v Songe Mai & Gai Avi [1988] PNGLR 56; The State v Paro Wampa [1987] PNGLR 120; The State v John Joga Ivoro (1989) N772; R v Kar Moro [1975] PNGLR 14; The State v Anton A mes Turik and Wickie Jack Peltham [1986] PNGLR 138; The State v Mana Turi [1986] PNGLR 221

References

Arrest Act; Constitution; Evidence Act

Ruling on Voir Dire

1. LAY J: The accused has entered a plea of not guilty to one count of armed robbery contrary to section 386 of the Criminal Code.

2. The State case, as contained in the brief facts on arraignment, is that on the 26 November, 2002 in the evening between 6 p.m. and 7:30 p.m. the accused was at Toma, Kokopo District. He and some accomplices went into the yard at Lito Farina's house and waited for him to bring the day's takings from Ngatia Enterprises Bakery. When Mr Farina arrived he was held up with a spear and bush knives and a money bag containing K1760, the property of Ngatia Enterprises, was stolen.

3. The State called First Constable Wapinan who gave evidence that he corroborated the taking of a confessional statement and then took a record of interview with the accused. The confessional statement is dated 4 November 2002 which the witness said is a slip, it was actually taken on the 4 December 2002.

4. In cross-examination the witness denied that the accused was arrested in the early hours of the morning of 4 December 2002, badly bashed by policemen and interviewed that day while being shown a piece of timber in the office. The witness maintained that the accused was arrested on the weekend by others and interviewed by him on Monday 4 December 2002 and showed no signs of being bashed. The record of interview commenced at 2:45 p.m. and it was suspended at 3:07 p.m. to enable the accused to speak with his sister but she did not come to the police station and the accused was taken up to CIS Kerevat without charge. He was not brought back again to Kokopo Police Station until 3 February 2003, when the record of interview recommenced and was concluded on that day.

5. The State sought to have the confessional statement and record of interview tendered into evidence but counsel for the accused objected on the basis of a notice of voir dire served on the morning of commencement of the trial. The notice of voir dire raises issues of involuntariness and breach of section 42 of the Constitution. The State applied to have the objection raised on the voir dire overruled on the basis that the notice had not been served sufficiently before the trial to enable the State to investigate the allegations in the notice and to call the appropriate witnesses. Counsel for the accused explained that he was hampered by the fact that the co-accused were on bail and not contactable. It was only possible to draw the notice when it became apparent that the accused’s trial would proceed without the co-accused. I ruled extempore that the objection in the notice could be tested by voir dire but that the State would have an adjournment to obtain any additional witnesses required. It being approximately 2:30 p.m. at the conclusion of Constable Wapinan's evidence, an adjournment was granted on application of the State to 9:30 a.m. the following day.

6. The State called Sergeant Yagiri. He denied any threats or inducements were offered to the accused during the taking of the confessional statement and the record of interview. Specifically he denied pointing to a plank of wood when urging the accused to "tell the truth". It was put to him that the accused was bashed up when he was arrested in the early hours of the morning of 4 December 2002 to which the sergeant replied that he would not know because he was not there, not being a member of the arresting party.

7. The accused gave evidence that he was arrested in the early hours of the morning at his village by the Baliora police unit, taken to the police vehicle, had his hands tied behind his back and was then bashed and asked who he was with during the robbery. When he randomly called out some names police stopped bashing him but he felt pain. The police then arrested the others named by the accused. They were driven to a local shop where their hands were untied and they were instructed to fight with each other. He was then taken to the police station and interviewed twice later that day. He was then taken to Kerevat CIS stayed for some time and then was brought back down to Kokopo police station when the interview was completed.

8. Counsel for the accused submits that the confession was not...