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State v Yaboshiwa [1990] PGNC 5; N818 (22 February 1990)

Unreported National Court Decisions

N818

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
LINDSAY YABOSHIWA

Popondetta

Jalina AJ
19-22 February 1990

CRIMINAL LAW - Identification - Circumstantial case - Accused seen at scene of offence - Accused led police to retrieve stolen vehicle - No explanation at first and second opportunity - False alibi by the accused - Application of principles of logic and common sense - Only rational inference to be drawn was that accused was involved in the robbery.

CRIMINAL LAW - Criminal Code s 386(2) - Robbery with threats of actual violence with dangerous weapon and in company - Contested case - Sentence - Youthful first offender.

Held:

(1) Applying the princioles gi logic and common sense approach I find that the only rational inference open to me in the circumstances and on the evidence before me is the ad waslved e robof the vehicle on t on the rohe road toad to Mari Marine Cone Compound at Oro Bay and later drove, or one of his accomplices drove it with them in it to Embogo Bridge. His claim of being with his cousin brother at his block near the Embogo Bridge on the night of 3rd August and then seeing the vehicle in the morning of 4th August also near the Embogo Bridge coupled with his failure to give any explanation to the police at his first opportunity on 4th August as well as during his second opportunity during the record of interview on 23rd August, amount to a false alibi. I am therefore satisfied of the guilt of the accused beyond reasonable doubt.

(2) ҈& As this this is a is a contested case with no special aggravating factors such as someone being injured, the property being damaged and the robbers being in a position of trust, a sentence of five (5) years imprisonment would be appropriate.

Cases Cited:

The following cases are cited in the judgment.

John Peng v The State [1977] PNGLR 115.

Paulus Pawa v The State [1981] PNGLR 498.

The State v Jupui Kapera N567.

The State v Tom Morris [1981] PNGLR 493.

William Ukukul Gimble v The State SC 369.

Counsel:

S Soi with J Kesan, for the State.

B Takin, for the accused.

Cur adv vult

22 February 1990

JALINA AJ: The accuse pleaded not guit guilty to an indictment which charges that he on 3 August 1989 at Oro Bay in Papua New Guinea stole from Leonard Bundu with threats of actual violence a motor vehicle namely a green Suzuki, Registration No AFH-661, the property of Barclay Brothers Proprietary Limited and that at the time aforesaid, he was armed with a dangerous weapon namely a shotgun and was in company of others. The charge is brought pursuant to s 386 of the Code.

THE OFFENCE

It is alleged that on the night of 3 August 1989 the accused in company of others and wearing masks and armed with a dangerous weapon namely a shotgun stopped a motor vehicle registration No AFH-661 by blocking the road leading to the Marine Compound at Oro Bay and then with threats of actual violence stole from its driver, Leonard Bundu.

THE EVIDENCE

Evidence was called by both sides but before I deal with that let me first deal with the record of interview which was tendered by the State Prosecutor with consent from Defence Counsel. It was conducted on 23 August 1989 and contains a record of conversation the accused had with First Constable Kenneth Kidole of Popondetta CID. The interview was conducted and recorded in Pidgin and later translated to English. The accused denied any involvement in the alleged robbery by refusing to answer nearly all the important questions put to him by Constable Kidole. He also refused to sign the record of interview. He did not tell the police where he was during the day and also on the night of 3 August 1989 nor what happened the next morning on 4th August.

The prosecution called three witnesses namely Leonard Bundu the driver of the vehicle which was allegedly stolen by the accused and his accomplices, Gini Laka who was with Leonard Bundu in the vehicle at the time of the alleged robbery and Constable Paul Puri who accompanied the accused and retrieved the vehicle on the night of 4th August after the arrest of the accused.

(a) ;ټ < M60; Mr Leonard Bundu

He

He was on the night of the offence (and still is) employed by the PNG HarBoard security officer at the Oro Bay Wharf. He gave evidence that on 3 August 1989 he89 he was was rostered for duty from 1600 hours to 2400 hours. He reported for duty and at about 1900 hours, whilst he was working he became sick and notified the Port Manager to arrange for another officer to relieve him. The Port Manager gave him the keys to motor vehicle registration No AFH-661 and advised him to go to the Senior Security Officer who lived at Marine Compound which is not far from the accused’s village. He was accompanied by the Wharf Supervisor Mr Martin Yalamu. When he drove up and turned into the road leading to Marine Compound he put his lights on high beam and as he drove past he saw the accused standing on the right hand side of the road and facing him. He then proceeded to the Marine Compound where he picked up the Senior Security Officer, Mr Gini Laka. The Wharf Supervisor, Mr Martin Yalamu, was still with them. On the way back he notified Gini Laka that he had seen the accused standing on the side of the road on his way up. He mentioned the accused’s name because they had heard a lot of stories about the criminal activities of the accused and others. He also knew the accused because he comes from a neighbouring village to that of the accused and the accused went to Martyr’s Memorial High School when he was also going to school there in 1982 and 1983 although the accused and him were in different classes. Mr Bundu was doing his Grades 9 and 10 and the accused was junior to him during those years. He has seen the accused almost every day as he lives in his village and has to go past the accused’s village everyday to go to work at the Oro Bay Wharf. He also talks to the accused whenever both of them meet.

As Mr Leonard Bundu was driving back after picking up the Senior Security Officer, Mr Gini Laka, he saw a road-block with a log across the road and this was at the spot he had seen the accused earlier on his way to the Marine Compound. As soon as he saw the road block he shifted to reverse gear. The accused ran out of the bush with a shotgun in his hand and demanded the car from Mr Bundu and at about the same instance four other people came. The accused and his friends were wearing masks. His two passengers and himself could not resist because the accused and his accomplices had dangerous weapons so they got out of the vehicle and the robbers drove off in it. The robbers also demanded and took Mr Bundu’s wrist watch from him. Mr Bundu and his two companions walked to the Katedere Health Centre and sought help. The people at the Health Centre helped them and dropped them back at the wharf where he notified the Port Manager, Tony Willie who then telephoned Popondetta Police and reported the matter.

Mr Bundu further stated that although the accused was wearing a mask, as he still had his lights on when he stopped and the accused came out with the gun, he was able to recognize the accused from his voice, his skin colour and his build.

(b) ټ < Mr Gini Laka>

When they were stopped and he came out of the vehicle he was standing at the back of the vehicle about a metre away on the left hand side. He did not recognize any of them because he does not come from the area and they were also wearing masks.

(c) ҈&<; C60; Constabnstable Paul Puri

Constable Paul Puri is a policeman attached to the General Duties Section at the Popondetta Police Station. He evidehat ougust 1989 (the Court has ascertained tned that 4hat 4th Auth August was on Friday) he was rostered on duty from 6 pm to 12 midnight for special operation. At about 7 pm when he was at the Police Station he was requested by Detective First Constable Moses Hilibobo to drive him (Moses Hilibobo) and the accused to the CID Office which is some distance away from the main police station.

He drove Moses Hilibobo and the accused who was already in custody to the CID Office. At the CID Office Moses Hilibobo, in his (Paul Puri’s) presence questioned the accused about a stolen motor vehicle at Oro Bay. The accused said he knew where the vehicle was and that he (the accused) was willing to lead them to it. They then returned to the main police station and with other policemen in another vehicle, proceeded with the accused to where the vehicle was. They found the vehicle which was a green Suzuki Reg No AFH-661 near the Embogo Bridge which is on the other side of Girua Airport (main Popondetta Airport). The accused told him that that was the vehicle they left. The vehicle was then towed to the Police Station.

Leonard Bundu was not broken down in a lengthy cross-examination by Mr Takin for the accused.

On cross-examination of (the second witness) Gini Laka, nothing much was achieved by Mr Takin for the accused except for an inconsistency between Mr Laka and Mr Bundu as to iron bars because Mr Bundu did not mention them in his evidence in chief as well as on cross-examination.

On cross-examination of (the third and final witness for the prosecution) Constable Paul Puri again nothing much was achieved by Mr Takin as to the offence itself. Mr Takin’s cross-examination was centered around the alleged assault of the accused by policemen when he (the accused) was arrested on 4th August but before the accused told him and First Constable Hilibobo that he knew where the vehicle was and that he would lead them to it. Constable Puri denied the allegations of assault.

At the close of the case for the State, the accused decided to give evidence on oath and also called one other witness namely, Mrs Nancy Sevese his cousin sister.

THE ACCUSED’S EVIDENCE

The accused gave evidence that on the afternoon of 4 August 1989 when he was inside a bus at Popondetta market to go to his village he was arrested inside the bus by police. They pulled him out and a policeman named Simon beat him with the butt of a gun and broke his head and blood came out. It covered his face. Another policeman named Joe Kaupa also hit him. After that they took him in a bus to the police station and beat him up again there and spoiled his face. He had a swollen face and as a result of that he could not eat. He was then put in the cell. Whilst he was in the cell, the shift changed and those officers for night duty arrived. Then Moses Hilibobo ordered the policemen to take him out of the cell and put him in the station. He sat on the cement surrounded by policemen. While he was sitting down Paul Puri hit him on the left hand side of his head with the handle of an Okapi knife resulting in the skin being taken off. Some of the policemen kicked him on the back and Moses Hilibobo had a loaded gun and pointed at him. When the policemen were doing all that he did not say anything because he was scared. After that he was taken to the CID office by Moses Hilibobo and Paul Puri. At the CID Office Moses Hilibobo and Paul Puri handcuffed him and assaulted him. He then told them that he knew where the car was and that he would direct them to it. He told them that he knew about the vehicle and where it was because he was scared of being assaulted. He actually never knew who took it and left it there. He was then taken from the CID Office to the police cell where he stayed for one week. While he was there his relatives brought his food but he could not eat because his mouth and face were swollen.

On cross-examination, apart from confirming his evidence regarding the assault; he said that on the night of 3rd August (which is the date of the alleged offence) he slept in his cousin’s house and someone left the vehicle beside his cousin’s block. In reply to a question as to how far the vehicle was from his cousin’s house, he indicated a distance from the Court House to the Police Station (say about 200 metres). He said that there are no houses between his cousin’s house and the place where the vehicle was. It’s all bush and the vehicle was left on the other side of the river in the bush.

On Friday morning, 4 August 1989 when his cousin and himself went down to the river to wash to come to town they sighted the car. He had no idea it was a stolen vehicle. He also did not go close to it. He further said that on the night he slept with his cousin, his cousin and himself were the only ones in the house. His cousin’s parents were not there. As they were teachers they were away in school.

Upon being questioned by the court as to his cousin brother and his family the accused said that his cousin brother, Michael Luasinadi, was unemployed and that he had gone to Port Moresby to visit his elder brother Abraham Luasinadi. He did not know where Abraham Luasinadi worked nor did he know what type of work he does. With regard to his cousin brother’s parents who the accused said were teachers, he said that last year they were teaching at Kundia Community School but he did not know where they are this year. With regard to the block that he was at on the night of 3rd August, he said that it was owned by his uncle, Michael and Abraham Luasinadi’s father but he did not know who was looking after the block (now) after his cousin Michael Luasinadi left for Port Moresby. He further said that he went down to the block on the afternoon of 3rd August and the reason he went there was to sleep with his cousin and come to town on Friday morning. With regard to his failure to tell the police about his having spent the night of 3rd August with his cousin brother and sighting the vehicle near the river on the morning of 4th August, he said that he did tell the police. Upon being questioned further as why he did not tell his lawyer about his whereabouts on the night of 3rd August and the sighting of the vehicle the next morning, because his lawyer had only asked questions to prosecution witness Paul Puri about the assault and not about where he was on that night, he said that he did tell his lawyer when he saw him on Monday (before his trial commenced) and his lawyer wrote it down.

NANCY SEVESE’S EVIDENCE

The second and final witness for the defence was Nancy Sevese. She gave evidence that she is related to the accused. He is her cousin brother. On 8th August she saw the accused at the police station when she brought some food for him. She said that she saw his face had changed as it was swollen all over and he could not eat so she took the food back. When he turned she also saw blood on the left side of his head just above his left ear and also blood near his nose. She was able to see the blood on his head because he has short hair.

On cross-examination by Mr Kesan she said that she was not at the police station for long as the police did not allow her. She just gave his food and then soon after he gave the food back to her as he could not eat, she went back to her house.

FINDINGS

It is not disputed that there was an armed robbery of the motor vehicle i.e. stealing of the Suzuki Registration No AFH-661 on the road to the Marine Compound at Oro Bay on the night of 3 August 1989. There is also no dispute that the said vehicle was left near the Embogo Bridge and later brought back to Popondetta by Senior Constable Moses Hilibobo and Constable Paul Puri on the night of 4 August 1989 after they were directed there by the accused.

As I have indicated above, a copy of an unsigned Record of Interview was tendered in the prosecution’s case with the agreement and consent of Defence Counsel. This course was adopted to save the time and effort of taking oral evidence of the conversation from First Constable Kidole. There is nothing exceptional in this practice and it does in fact ease the burden of the Court of transcription by hand and is made acceptable by defence counsel’s admission of the material. The document does not however become part of the accused’s evidence in a strict sense as it is not evidence he gave on oath. It is usually described as material in evidence which the court is entitled to consider.

Apart from his refusal to answer questions put to him by First Constable Kidole, the only matter of any relevance is contained in his reply that he was brought to the police station because the police suspected him of the robbery of the vehicle. On analysis, that does not prove anything against the accused at this stage. However, from the evidence of Leonard Bundu, it can be seem that he knew the accused very well. They went to school together at Martyr’s Memorial High School. He then saw the accused almost everyday because he has to pass the accused’s village to go to work at the Oro Bay Wharf every day. He talked to the accused whenever they met. He also comes from a neighbouring village to the accused’s village. They were no strangers to each other. Because of all those factors and because he saw the accused standing on the side of the road when he went up to Marine Compound to pick up Gini Laka, he was able to recognize the accused from his physical characteristics such as his voice, his skin colour and his build. Mr Bundu who gave his evidence in English was not shaken in cross-examination in spite of very lengthy and probing questions from Mr Takin for the accused. I observed his demeanour from the witness box and I find him to be a truthful witness. That does not mean that a reasonable doubt cannot be created on the consideration of all the other evidence in this case.

Turning to the next evidence, namely that from Paul Puri, it can be seen that the accused, after he was arrested on Friday 4th August, notified the police about the whereabouts of the vehicle and then that night led police to retrieve it which Paul Puri, Senior Constable Moses Hilibobo and other policemen did. Paul Puri was not cross-examined as to how the accused came to know about the vehicle. Knowing Mr Takin to be a hardworking lawyer who puts his client’s case to the witnesses of his adversaries it seems to me that Mr Takin was not instructed by the accused as to where he was on the night of 3 August 1989 and also as to how he came to know about the vehicle being at Embogo Bridge. Constable Puri was also not shaken on cross-examination. The evidence of Leonard Bundu and Paul Puri are the only evidence of substance for the prosecution.

The accused gave evidence on oath. His evidence in chief centered around his alleged assault by the police. No evidence was led as to where he was on the night of 3rd August nor as to how he came to know that the vehicle was at Embogo Bridge. Then, during cross-examination by Mr Kesan, what appears to be his fatal moment came. He started explaining that on the night of 3 August 1989 he visited his cousin and slept there and that when he went with his cousin to the river in the morning to wash and come to town he saw the vehicle. He told the police (about) where the vehicle was because they assaulted him. In my view he found it convenient to mention names of his relatives whom he knew the State could not find at this very late stage of the trial to verify or rebutt his evidence creating an alibi. The other thing is that the information he gave to the police about the whereabouts of the vehicle was given on 4th August but the record of interview was conducted some 19 days later on 23rd August. He chose not to offer any explanation even on 23rd August. If he did not know how the vehicle got to the Embogo River Bridge how did he know that that was the stolen vehicle? If he was not involved why did he not maintain that story during the record of interview with Constable Kidole on 23rd August? He had plenty of time to think about it. If he was not involved why did he not instruct his lawyer about it to enable his lawyer to give notice of such an alibi in accordance with O 4, div 2 of the Criminal Practice Rules of 1987 and to put his case to the State witnesses? If he was in fact with his cousin brother on the night of 3rd August and was therefore not involved in the commission of the alleged offence, why did he not call other witnesses to support his alibi? I find his late explanation to be a false alibi. I observed his demeanour and he appeared to me to be an untruthful witness. I find that the accused was at the scene of the robbery and I further find that he took the vehicle to Embogo River Bridge and probably slept in his cousin’s house. Did the accused and his accomplices commit the alleged offence?

NATURE OF THE CASE AGAINST THE ACCUSED

The case against the accused is circumstantial. I must exercise great care in such cases and I am aware that any inference I draw must be tested against the exclusion of any reasonable hypothesis that would indicate innocence. The dangers of convicting in reliance on identification evidence is discussed by the Supreme Court in John Peng v The State [1977] PNGLR 115 and I am mindful of that.

With regard to retrospectant evidence it is stated in “Cross on Evidence” 3rd Aust Ed p 27 para 1.34:

“In its most general form, the argument for the reception of this kind of evidence is the converse of that which demonstrates the relevance of prospectant evidence: the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that an act was done, or that the state of mind or affairs previously existed.”

In the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 Andrew J (as he then was) said at p 504:

“An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened.” (see R v Sparrow (1973) 57 CR App 352.)

With regard to circumstantial evidence Miles J said in The State v Tom Morris [1981] PNGLR 493 at 495:

“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’ Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at p 252; see also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ - Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions (1973) 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’”.

This was applied by Wilson J in The State v Jupui Kapera N 567.

Applying the principles of logic and common sense approach I find that the only rational inference open to me in the circumstances and on the evidence before more is that the accused was involved in the robbery of the vehicle on the road to Marine Compound at Oro Bay and later drove or one of his accomplices drove it with them in it to Embogo River Bridge. His claim of being with his cousin brother at his block near Embogo Bridge on the night of 3rd August and then seeing the vehicle on the morning of 4th August also near the Embogo Bridge coupled with his failure to give any explanation to the police at his first opportunity on 4th August as well as during his second opportunity during the record of interview on 23rd August, amount to a false alibi. I therefore find that I am satisfied of the guilt of the accused beyond reasonable doubt.

The accused is convicted of the crime charged.

SENTENCE

The prisoner has been found guilty of armed robbery whilst in company of others. The facts of the case are contained in my judgment. Consequently I need not repeat them here.

The penalty for the offence you have committed is, in view of the aggravating features such as the use of a dangerous weapon namely a shotgun and being in company of others (subject to s 19) imprisonment for life.

On allocutus, you did not have anything to say. Your lawyer, in his address to me on your behalf has asked me to take into account the fact that the robbery was not committed in broad daylight but at night. You did not fire the gun and as a result nobody was injured. He also asked me to consider the difficult position your family is now in. Your father has died and your mother is paralyzed. You were also punished through the assault by the police. I did not consider the assault on the aspect of your guilt because it did not lead to a confession. You merely told them where the vehicle was. It was with the other evidence that I was able to infer your involvement and thus found you guilty.

From the categories of robberies stated by the Supreme Court in Gimble’s case, your case falls under category 3. In respect of that category the Supreme Court said:

“3. ҈ Robberybbery of a store, i vehicle etc.

In this category we lump together the robbery of a store, a hoteclub, a vehicle on the road, and the like. We consider that this is a less serious categoryegory than the first two categories. Where a group of young first offenders, carrying weapons, use the threat of violence to rob a store etc. we consider that a sentence of five years’ imprisonment is appropriate in a contested case. A lesser sentence should be imposed in an uncontested case. If certain aggravating factors are present a sentence of more than five years’ imprisonment is appropriate. These include if actual violence is used, if the sum stolen is large, or if the robber is in a position of trust towards the victim, for example, if the robber is the manager or other employee of the victim.”

As this is a contested case with no special aggravating factors such as someone being injured, the vehicle being damaged, and you were not in a position of trust, a sentence of five (5) years’ imprisonment would be appropriate.

With regard to your lawyer’s submission that this offence was not committed in broad daylight but at night, I wish to point out as I did this week in respect of a similar submission in the case of the State v Smith James Ondari that s 386 does not distinguish a daytime robbery from that committed at night. It does not provide for a lesser penalty if committed at night and higher penalty if committed during the day. Depending on whether there are aggravating factors the penalty is the same for robbery committed during the day and at night.

I have taken into account in your favour that the police assaulted you and for that I will deduct some period from the sentence I will pronounce below. As this is a contested case, I sentence you to imprisonment in hard labour for 5 years. I deduct 3 months from that sentence for the assault. Because you escaped only 1-1/2 months after you were taken into custody on 4th August and were at large until 15 February 1990, you have effectively been in custody for only 1-1/2 months pending your trial in the National Court. The 2 months’ sentence for escaping from lawful custody does not constitute your period in custody awaiting trial. Total deduction from your sentence of five (5) years is therefore 4-1/2 months.

Consequently your sentence is broken up as follows:

To serve: 4 years and 7-1/2 months IHL.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.