N2255

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 206 of 2001

THE STATE

-V-

HILLARY SELAN, STEVEN HAIVETA
AND ELAIZA GAUKA

WAIGANI: KANDAKASI, J.
2002: 11th, 12th and 15th July
5th August

Decision on Verdict

CRIMINAL LAW –Verdict – Armed robbery – State’s case circumstantial – Part of facts put to accused on arraignment not established by any evidence – Only piece of evidence linking accused to the crime not found on the accused or proven to have come from the accused – A failure to check out the correctness or otherwise of a possible alibi by one of the accused is critical for a case based purely on circumstantial evidence - Court not satisfied beyond any reasonable doubt as to accused involvement – Not guilty verdict returned -Criminal Code ss.386 (1) (2). 

Papua New Guinea Cases Cited:
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
Pawa v the State [1981] PNGLR 498.
The State v Tom Morris [1981] PNGLR 493.
Garitau & Rosanna Tau v. The State (1997) SC528.
The State v. Tony Hahuahori (unreported judgement delivered 19/02/02) N2185.
The State v. Cosmos Kutau Kitawal & Christopher Kutau (unreported judgement delivered 15/05/02) N2245.
The State v. Ben Noel & Ors (unreported and unnumbered judgement delivered on 31/05/01) CR No. 1156 of 1999.

Other Cases Cited:
Browne v Dunn (1893) 6 R 67(HL).

Counsel
Mr. Kaluwin and Kupmain for the State 
Mr. D. Kari for the Accused

5th August 2002 

KANDAKASI, J:	You pleaded not guilty to a charge of armed robbery presented against you by the State under s. 386(1) and (2) of the Criminal Code. This necessitated a trial, which was conducted on the 11th and 12th with submissions on the 15th of July 2002.

The State’s allegation as put to you during your arraignment is simply this. On the 26th of July 2000, between 9:00a.m. – 10:00a.m, the three of you went to the Ela Beach Hotel and held up Maggi Norrepa and Annette Mahuru at gun point, entered the front office, also held up the cashier, Avea Jack and stole a total of K11, 385.87, K6, 426.01 of that in cash and K4, 889.86 in cheques. After stealing the money, you ran out of the Hotel, and got into a get away vehicle described as a white utility with a false number plate, ZGB 181. You drove into the Konedobu area near Lohberger Engineering and changed into another vehicle described as a Nissan Cefiro, abandoning the white utility. You used the Nissan Cefiro to drive into the Crown Plaza Hotel, abandoned the vehicle there and went down to the main town bus stop and escaped. 

 In a bid to establish the charge against you, the State first called Avea Jack. She confirmed the time, date, place and the amount of money stolen in the robbery. She is the cashier that was held up and from whom the cheques and money were stolen. She said she saw only two men. One of them held her up while the other went for her work mates. She described the person who held her up as dark, skinny and tall person. He wore a pair of black trousers and a long green shirt. Both of the robbers did not wear any masks or caps or anything like that to hide their faces. Unfortunately, it all happen so fast for the witness and she was in a state of shock. Given that she was not able to tell the face of the robbers. 

Ms Avea Jack identified a copy of a Police Department cheque number 46524 dated 21st July 2000, made out to the Ela Beach Hotel for K660.00. She confirmed having recorded it as part of the takings she was counting and recording that date and was stolen in the robbery. A copy of the Cheque was admitted into evidence as exhibit "A" with your lawyer’s consent.

The second State witness, was Niligur Hosea, who is a sergeant of police stationed at Gordons Police Station. He was on duty on the day of the robbery. Whilst he was on duty, he heard on the police radio of an armed hold up and robbery at the Ela Beach Hotel that morning. Then he says he got information from a reliable source that some suspects were drinking beer and sharing money at a residence along Heano Drive, close to the Gordons International School, pointing to the direction of the house. So he and other policemen who were with him at that time, decided to check it out and drove toward the direction of the house.

As they were driving toward the house, he saw four men coming out from the back gate of the house heading toward the Gordons Market and Police Station area. That made him to turn the vehicle around and go to where the four men were heading. He eventually caught up with the four men, apprehended them and took them to the police station at Gordons. He identified the four men as you three and Samuel Tago. 

You were subjected to a police search at the police station. That search resulted in a finding of a total of K944.00 on you. Nothing was found on Steven Haiveta. This witness identified the suspects as you three and Samuel Tago. 

After witnessing the search of the three of you, this witness and other policemen went to the resident from where you had earlier come out off. They asked the occupants of the house for permission to search the premises, as they did not have a search warrant. He says he could not get a search warrant as they did not have time to get one and were compelled to act by a need to find and preserve any useful evidence for the case. The mother of the house permitted them to conduct a search but only on the outside. On that permission, the police search the outside area of the house and found a Police Department cheque made payable to the Ela Beach Hotel for K660.00. 

Police did not get the name of the owner or occupants of the house from where you come out off. They also did not establish the name of the reliable source. Neither of these possible witnesses were secured and called to give evidence for the State. 

Wau Paul Kaupa was the third State witness. He was at the time of the robbery a security officer employed by Hotel Services. He was working at the Crown Plaza Hotel on the outside. He was with a work mate between 9:00 a.m. - 10:00 a.m., when a Nissan Cefiro metallic gray, registration number CAL 356 drove up in full speed and parked on the side. It came from the Anglican Church side of the hotel. As soon as it parked, he saw three of the doors open at the same time, except for the driver’s side door. Three men came out but as they were doing that, a pistol came out from the pocket of one of the men in the driver side back seat. He saw the men put the pistol back into his pocket. The three men closed the doors from which they came out off and walk down toward the main town bus stop, while the driver drove the vehicle next to the Hibiscus Hotel and had it parked there.

The witness says he knows the identity of the person with the pistol by appearance. He said he was not in Court at the time of his evidence. That means he did not identify any one of you as the person he saw with the pistol coming out of the Nissan Cefiro. 

He says not long after, message came up from the Ela Beach Hotel informing that an armed hold up had just taken place. Upon receipt of that information, he went back to the Nissan Cefiro and found that the driver had gone to the bus stop. He therefore mobilized some of his colleagues and went searching for the driver and his friends but could not find them there.

The final State witness was Jeffery Hoheg, who is CID policeman attached to the Armed Robbery Squad. He recalls corroborating a record of interview in relation to the armed robbery at the Ela Beach Hotel on the 26th of July 2000. The accused being interview was a Samuel Tago. He also assisted in other general investigations in relation to the offence and says 5 suspects, you three, Samuel Tago and Nicholas Airi were arrested in connection with the armed robbery. There is no evidence of what as become of the charge if any against Samuel Tago and Nicholas Airi.

Through his investigations he was able to establish that a Frank Airi owned the Nissan Cefiro. Frank Airi is Nicholas Airi’s father. He also found out that Frank Airi lives near the Gordons International School. 

In addition to the above evidence, the State, admitted into evidence with your consent the following documentary evidence:

1.	Statement of Magi Norefa date 27/7/00 – Exhibit "B";
2.	Statement of Annette Mahuru dated 26/6/00 – exhibit "C";
3.	Statement of Agnes Sive dated 18/8/00 – Exhibit "D";
4.	Statement of Leo Singiso dated 17/8/00 – Exhibit "E";
5.	Sets of Photographs (6 x), referred to in the Statement of Singiso – Exhibits "F";
6.	Record of Interview between police and Hilary Salen 
(a)	English Version – Exhibit "G1";and
(b)	Pidgin Version -	Exhibit "G2";
7.	Record of Interview between police and Steven Haiveta 
(a)	English Version – Exhibit "H1"; and
(b)	Pidgin Version – Exhibit "H2"; and
8.	Record of Interview between police and Eliaza Gauka
(a)	English Version – Exhibit "I1"
(b)	Pidgin Version – Exhibit "I2".

These documentary evidences repeat what the witnesses stated in court. The only additions are that; (1) the robbery at the Ela Beach Hotel was by a gang of four; and (2) that an account of a possible alibi was given by Steven Haiveta, of being at his parents’ in-laws house at Godorns. There is no evidence of this possible alibi been checked and ruled out against him by the police. 

Defence evidence 

In your defence, each of you gave a short sworn testimony. Steven Hiaveta, you repeated the story you gave to the police during your record of interview and elaborated on that. You said you were at your parents in-law’s residence as your wife and their daughter had given birth to a child on the 24th of July 2000. You were arrested by Police on the 26th of July 2000, near the Gordons market as you were on your way to pick up something your wife had asked you to collect for her. You did not go with anybody but was apprehended with some other boys and brought to the Godorns Police Station before you were arrested and charged for the robbery. At that time, the police discovered and got from you a sum of K5.20 in coins. That was part of your bus fair.

Hilary Selan gave a story similar to that of Mr. Haiveta. You said your wife also gave birth to a child on the 25th of July 2000, and you were with your wife on the 26th of July 2000, at Waigani. You then went shopping for your newborn baby, equipped with K420.00 from your wife. You did not buy anything and were heading to the Gordons bus stop to catch a PMV home when you were apprehended with several others and brought to the Gordons Police Station. There you were arrested and charged for a robbery at the Ela Beach Hotel earlier that day. Police took the money on you and neither yourself nor your wife has done anything about it. 

Your story was not told to the police either at the time of your arrest or during your record of interview. This was necessary for the police to check out your story and see if it is true. If it was true, they could have let you go. However, your failure to tell your story denied the police of that opportunity. Also you did not put your case to the State’s witness in cross-examination for them to comment in fairness. You have therefore, told your story in Court for the first time. The law requires me to and I do view your evidence or story as recent inventions and therefore unreliable in this kind of circumstances: see John Jaminan v. The State (N0.2) [1983] PNGLR 318, following Browne v Dunn (1893) 6 R 67(HL). I therefore reject the whole of your evidence.

Eliaza Gauka, you said you were with your an aunt at Gordons on the day of the robbery. From there you went to see your parents at Gerehu. Your mother gave you K50.00 for your cigarettes. You then went to Gordons and went into one of the shops near the Gordons Market and bought a drink. After that you were heading for the market through the Sogeri bus stop. Whilst there, police apprehended you with several others and were taken to the Gordons Police Station.

At the police station, some policemen bashed you up and got from you K49.00 out of the K50.00 your mother had given you. Thereafter, you were taken to the Waigani Police Station and were subjected to further beatings before being taken to the Boroko Police Station. 

As with Hilary Selan, you did not tell the police of your whereabouts on the day of the robbery either at the time of your arrest or during your record of interview. Similarly, you did not put your case to the State witness, in fairness for them to comment. Therefore your story in Court is a recent invention and is thus unreliable. I therefore do not believe you and reject your story or evidence.

Assessment of the evidence

After the rejection of Eliza Gauka and Hilary Selan’s evidence, this Court is left with the evidence called for the State and that of Steven Haiveta. As the State has the burden throughout to prove the charge against the three of you beyond any reasonable doubt, I must be first satisfied that, the State has establish a case against each of you. I will then consider your own evidence if need be, to determine whether you have cast any doubt on the State’s case. 

The States case is circumstantial. In other words, the State has not produced any direct eyewitness accounts or evidence connecting the three of you to the robbery at the Ela Beach Hotel on the 26th of July 2000. The State has however, produced some evidence on the basis of which, it is urging this Court to infer your involvement in the robbery and in that way, return a guilty verdict against you. I must therefore, decide whether the evidence produced by the State is sufficient to connect you to the robbery and therefore find you guilty on the charge presented against you.

The law on a State case that is based purely on circumstantial evidence is clearly established in this jurisdiction. The Supreme Court in Pawa v the State [1981] PNGLR 498 at 501, in the words of Andrew J stated the relevant principles quoting with agreement the words of Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 in these terms:

"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) 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), 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), 110 CLR 234, at p 252; see also Thomas v The Queen (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’."

These principles have been consistently adopted and applied in a large number of cases, by both the Supreme and the National Courts. An example of this Garitau & Rosanna Tau v. The State (1997) SC528. I have applied those principles in a number of my own judgments as in The State v. Tony Hahuahori (unreported judgement delivered 19/02/02) N2185 and The State v. Cosmos Kutau Kitawal & Christopher Kutau (unreported judgement delivered 15/05/02) N2245.

What these principles say in simple terms is that, where a case against an accused person is only circumstantial, he must be acquitted unless, such a person’s guilt is the only rational and reasonable inference dictated by the circumstantial evidence beyond any reasonable doubt. In your case therefore, I need to be satisfied beyond any reasonable doubt that evidence produced by the State points only to you being involved in the robbery and that is the only inference open to this Court. 

The State’s case from the evidence it has produced in Court is that a four men armed gang held up employees at the Ela Beach Hotel on the 26th of July 2000, between 9:00a.m. - 10:00a.m. and stole about K11,385.87 in cash and in cheques. The gang got away in a get way vehicle described as a white utility with the registration number ZGB 181. Sergeant Niligur Hosea who was a policeman on duty between 9:00 a.m. and 10 a.m. was informed by an undisclosed but reliable source that a group of youths were drinking beer and sharing money at a residence at Gordons along the Henao Drive. So he headed with his comrades in the direction of the residence when he saw the three of you and another person coming out of back gate of the residence. He therefore turned back and caught up with you close to the Gordons Market and apprehended you. You were then taken to the Gordons Police Station where you were searched. The search on you produced a total of K944.00. Also the police found trace of alcohol in your breath at the time of your apprehension. 

Sergeant Hosea then went back to the residence from where you had come and asked permission from the occupants to conduct a search. He was permitted to do so but only the outside by the mother of the house. That search resulted in the finding of a cheque for K660.00 made out to the Ela Beach Hotel from the Police Department. That cheque was part of the money that was stolen during the robbery. The cheque was found near the fence of the residence and near the back gate. There is no evidence of how the cheque got there or who put it there.

After a careful consideration of the evidence produced against you, I have difficulties trying to infer your involvement in the robbery and therefore your guilt for a number of reasons. Firstly, in the record of interview between the police and Steven Haiveta, Mr. Haiveta informed police that he was not with the gang conducting the robbery and gave an alibi as to his whereabouts that day. There is no evidence of the police having checked that out and ruling it out against him. This is critical in my view where the State’s case against the three of you is purely circumstantial. The law is that in order to convict on circumstantial evidence, guilt of an accused person must be the only reasonable inference available on the evidence, otherwise there must be an acquittal.

When Mr. Haiveta gave an indication of where he was, that should have been checked out to ensure that he was not where he was in order to place him at the crime scene to start with. The failure to do so gives rise to an inference that, Mr. Haiveta might well have been where he says he was in the absence of any evidence to the contrary. 

Secondly, even if this was checked out and was established against him, I find no evidence connecting the three of you to the robbery. The State’s allegation was that after you had effected the robbery, you got away in a get a way vehicle with a false number plate. You abandoned that vehicle near Lohberger Engineering and got into a Nissan Cefiro, which was eventually, abandon near the Crown Plaza Hotel within the same time period of the robbery. From there you got to the main town bus stop and escaped. No evidence established any of these against you. Apart from that, it seems rather strange that, the robbers would have taken the risk of driving into town only to abandon a vehicle and get away by normal public bus after having conducted a major robbery during broad day light with no masks just a short distance away. 

Thirdly, one of the cheques stolen during the robbery was found at a residence out of which police say the three of you came out of but it is not clear as who placed the cheque there. You or any other person could have dropped it. The onus was on the State to show beyond any reasonable doubt that you place that cheque there or that it came from you. It did not do that. Instead it is asking this Court to infer that fact against you. I have difficulty doing that for number of reasons as well. First, the name of the supposed reliable source pointing to the residence to the police was not disclosed. That particular witness was not secured for the purposes of giving evidence in Court. In my view if this was a reliable source, he or she could have helped in the identification of the men that were drinking and sharing money at the residence. Secondly, the names of the occupants or owners of the residence from where you supposedly came out have not been disclosed. They were also not secured as witnesses for the State. They would have also assisted in the identity of the youths drinking beer and sharing money and who might have dropped the cheque. Police did not check out the possible alibi Mr. Haiveta was raising. I have as in the case of The State v. Ben Noel & Ors (unreported and unnumbered judgement delivered on 31/05/01) CR No. 1156 of 1999, dismissed charges brought against defendants for the States failure to secure the appearance of witnesses that had or had reason to be in possession of relevant and necessary evidence. Finally, if indeed you were part of the gang, it was reasonable to expect a substantial amount of money being found given that K6, 426.01 in cash were part of what was stolen. Only one of you had K410.00, the other two had K49.00 and K5.20 respectively. 

For these reasons I am not satisfied that the State has established the charge against you on the required standard of proof beyond reasonable doubt. I therefore, return a verdict of not guilty for all of you. 

After having arrived at that verdict, let me say this. You might very well have been involved in the robbery. Whether or not you were involved or not is a matter within your own knowledge. Only God knows whether you are guilty or innocent. When Jesus Christ does return to earth and sets the judgement seat then we shall all know what we have been doing in the whole of our lives whilst in this world. Our lives history will be played back to us like a videotape or movie. As the book of Ecclesiastics 12:14 in the Bible says, God will take everything that we do whether in secret or in public into judgement. No witnesses will be required, as it will be our own records speaking either for or against us. There will be no hiding from God’s true, correct and fair judgement. I hope you will consider what the Bible says. By virtue of our Constitution they are the very principles on which our nation is built. It is a turning away from those principles that has land our country in a serious level of crime and lawlessness and its consequence of us all be a very difficult economic situation. The bible says a transgression of the law or a breaking of the law is sin. The penalty prescribed for that is death as is made clear by Romans 6:23, unless we confess our sins and turn to God and become good people.

If indeed you were involved in the robbery but because of the legal requirements you are set free, I suggest that you seriously consider making your relationship with God right before it is too late. I am convinced by the level of crime and lawlessness, and all the other evil that we see in society today, tells me of the soon return of Jesus Christ to take all his people home to heaven. The choice is yours either to continue with all the evil that is around and get lost eternally or get your lives right with God and be saved. I pray that you will choose the later.

Finally, your cash bails, if any shall be reimbursed.
________________________________________________________________________
Lawyers for the State:			The Public Prosecutor
Lawyers for the Accused:		The Public Solicitor