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State v Herman [2003] PGNC 27; N2475 (4 August 2003)

N2475

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 448 OF 2001

THE STATE

-V-

MICHAEL HERMAN & ALBERT PAUL

KOKOPO: Lenalia, J.
2003: 25 – 28 Feb, 21, 24, 4 August

Criminal Law – Armed robbery – Not guilty pleas – Trial – Criminal Code s. 386 (1)(2)(a)(b)(c), Ch. No. 262.

Criminal Law – Armed robbery – Trial – Evidence – Burden of proof – Circumstantial evidence – Primary finding of facts.

Criminal Law – Practice and procedure – Submission of "no case to answer" – Ruling of case to answer.

Criminal Law – Circumstantial evidence – Primary finding of facts – Inferences to be drawn – Remote possibility – No rational inferences to be drawn where there was remote possibility only – Finding of guilty.

CASES CITED:

The following cases are cited on judgment.

The State -v- Tom Morris [1981] PNGLR 493
Allan Oa Koroka -v- The State and Mariano Wani Simon -v- The State [1988-89] PNGLR 131.
The State -v- Paul Kundi Rape [1976] PNGLR 96.
The State -v- Tupui Kapera N567
The State -v- Iamige Waea N915

Counsel:
L. Rangan, for the State
J. Kaumi, for the Accused

July 4th 2003

DECISION

LENALIA, J. The two accused were separately indicted with separate charges of armed robbery contrary to s. 386 (2)(a)(b)(c) of the Criminal Code.

Since the State say the two were co-accused in the same crime, they were tried jointly.

When arraigned, the two accused entered not guilty pleas. The facts of these two cases allege that on 1st December 2000 at Kokopo town, the two accused in company of three others stole with actual violence from Anthony Seeto a vehicle Reg. NO. RAC. 888, grey in colour valuing at K60,000.00, a cash sum of K40,000.00 and cheques valuing at K30,000.00. Actual violence was used towards Anthony Seeto during which he suffered serious injuries. The facts show the gang ran over the victim several times causing broken bones and ribs before they raced away in high speed in the victim’s vehicle. The vehicle was located and recovered the next day at the Kabaleo Plantation. No monies were ever recovered.

On the evidence tendered by consent, the State tendered the statements of witnesses number 1, and from numbers 10 to 21. Ireen Seeto is the wife of the victim. In her statement (statement No.1) Ireen gives an account of what occurred at about 7 pm in front of their family store at the Kokopo waterfront, called John J & H Seeto Ltd. When the couple stopped at their gate, Ireen got outside and as soon as she was outside the car, armed men started to harass Anthony Seeto who was still sitting inside their vehicle. Ireen proceeded inside their store-gate and locked her in since she was frightened. Anthony was then forcefully dragged out of his car. A piece of wood was used to hit him over his hands and body. Ireen says, she saw the four or so rascals with one of them drove Anthony’s vehicle ran over the victim two or three times by driving forward, then backward and then they drove forward and sped away hastily.

The evidence of the next twelve witness from numbers 10 to 21 numbered at the back of the indictments are all circumstantial in nature. Statements by Constables Noah ToKure, Kevin Bulu, Patrick Mandrei, Andrew Lovok and that of Sergeant Poren Yagiri are not of any much assistance to the Court. The later witness was the investigator and Constable Nicholas Taolo were interviewing officers while their counterparts Constables Kevin Bulu and Patrick Mandrei were corroborators in the record of interview conducted between the two accused and the interviewers. Really there is no relevance in their evidence and the two accused did not answer any questions asked whilst being interviewed. Even the record of interview contains no admissions whatsoever.

The next few statements of Constables Andrew Lovok and Brian Lovok are relevant circumstantial evidence in so far as they corroborate the statement of Constable Nicholaus Taolo who was the Informant Investigator in the case of accused Michael Herman CR. No. 448 of 2001. Constable Brian Lovok indicates that, accused Michael Herman on the evening of 4th December 2000, he came back from work and at their house at the Police Barracks at Kokopo and gave him a cash sum of K600.00. Brian recalls that the accused had not told him where he got the money from. He got this money and put it away in his suitcase. According to Brian, the money was left there until 6th of December 2000 when the accused invited Brian to have some drinks at the Beach Hut Lodge. At the Beach Hut Lodge that night, Brian said, accused Herman bought beer for him and other friends and accused Michael Herman is supposed to have requested the bar-tender to give the change to him. Brian Lovok received K27.00 changed and put it away in his pocket. Note here that, not only Brian was with Michael Herman but Brian says that there were a number of friends. The question arises is how much money could the accused Herman had spent to feed a group of friends being an unemployed person.

Brian’s statement also reveals that he went to sleep that night and on the early hours on 7th of December 2000, a police investigating team came to their house and woke him up and requested him to give them money which Michael Herman had given him. That night Brian said he gave to the police a cash sum of K623.00 and another K200.00 of Brian’s own money. I saw he gave K1,027.00 to the police that night. The statement by Constable Andrew Lovok confirms this view. He later gave the money in the sum of K200.00 after the police requested for such money to be produced to them.

An interesting piece of evidence given in the statement of Senior Constable Andrew Lovok is that, the accused Michael Herman gave him the K200.00 cash way back on 29th of November 2000. Brian Lovok’s evidence is that, Michael Herman gave him the K600.00 on Monday the 4th of December 2000. No other evidence was given to corroborate this interesting piece of evidence for the defence case. But as it appears, there is no evidence suggesting where Michael Herman had got the money from.

Evidence by Constable Nicholas Taolo, investigator in Michael Herman’s case was objected to by the defence counsel saying that statement was hearsay. That statement was tendered by consent and if there was anything in it, which the defence wanted to put to that witness, it was open to them to cross-examine him. The court accepted that piece of evidence and for the defence to say it is hearsay would defeat the purposes for which it was first tendered and accepted.

Basically, the evidence by Nicholas Taolo is similar to that of Senior Constable Lovok and that of Constable Brian Lovok. In his statement, Constable Nicholas Taolo reveals that the accused made certain admissions to have some money in Senior Constable Andres Lovok’s house. The total sum retrieved from S/C Lovok’s house was K1,037.00. Constable Taolo’s evidence does not reveal how and where the money had come from so as the defence case.

The State only called three witnesses to testify. The evidence of those three witnesses are also very much of circumstantial nature. Ruben ToKure gave evidence that in an un-known date in December of 2000, he accompanied Sam Yaling from Kokopo Police Barracks to the Beach Hut Lodge where he saw the two accused drinking at the bar with large group of other barracks boys. Those drinking with the two accused were from the Police Barracks. He named a few of those boys from the Barracks as Paulson Maibongu, Brian Lovok and Ben Bot. This witness said while he was sitting down in the bar, he saw the two accused bought bear many times. The accused friends occupied two tables and the two accused did the buying of beer for all of those who were with them.

Evidence by Miriam Tonny corroborates that of Ruben ToKure in that she not only saw them but served the two accused on the night of the 6th of December 2000 at the Beach Hut bar. She was the bar-tender and waitress on that night. Miriam observed that the two accused bought so much beer raised her suspicion where could the two accused got the money from as she knew one of them to be living with friends at the police barracks. This witness estimated that the amount of cash was around K1,900.00 spent and collected that evening. This to her was much surprise as nobody would have spent so much money during anyone night.

Witness Andrew Kusa corroborates evidence of Miriam that he saw the two accused bought so much beer on another night namely 7th of December 2000. When this witness saw the two accused buying beer for the two tables and the boys whom this witness said were all unemployed youths from the Police Barracks, he too was quite suspicious. This witness was a former Policeman and now runs a private security business, said he saw the two accused used cash denominations of K50.00 and K20.00 notes.

After the State completed their case, Mr. Kaumi of counsel for the two accused made a submission of "no case to answer". Their submission was based on the second limb in the case of The State -v- Paul Kundi Rape [1976] PNGLR 96 which proposition is whether on the evidence as it stood the two accused could lawfully be convicted. I was urged that, I should stop the case there and then as the State’s evidence fell short of the benchmark authorities due to the circumstantial nature of the evidence. I made a ruling on my decision on the 27th February 2003 ruling that, there was a case for the two accused to answer and called on the two accused to answer.

The two accused in fact answered and gave alibi evidence on 21st of July 2003. In the case of accused Albert Paul he said on the 1st of December, he attended a coffee night on the night of the 1st of December 2000 hosted by the Police Barracks Rugby Touch Club. This took place between 6:30 to 10:30 pm. This coffee night was attended to by the rugby players and supporters. In case of the other accused, he attended a religious meeting that evening and after the fellowship, he attended the coffee night as well. Witness August Kure called by the two accused said he conducted the fellowship on the 1st of December 2000 and he recalls seeing the two accused that night. According to August, the armed robbery would have taken place prior to the group fellowship. Another witness Paulson Maibongu confirmed that there was a coffee night, which he attended after training on 1st of December 2000. That he saw one of the two accused during the coffee night.

On submissions, I heard submissions by both counsels on 24th of July. Mr. Kaumi for the two accused submitted that the circumstantial nature of the evidence does not measure up to the standard and bench mark set by the case of The State -v- Tom Morris [1981] PNGLR 493. He submitted this is a weak circumstantial case. Mr. Rangan of counsel for the State submitted that the State has proven their case beyond reasonable doubt. That there were two nights on which the two accused were seen drinking and the monies was so much so that a question could be raised as to where did the two accused got the monies from to drink during the two nights and the defence case does not show where the money spent by the two accused come from.

The principles governing reception of circumstantial evidence has been stated over and over again. In The State -v- Tom Morris [1981] PNGLR 495 the principles enunciated from the practice in common law countries say that where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party they should favour and at the end of the prosecution case, where there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit. The Court there said at page 495 to 496.

"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 Queen3:

"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 the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 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 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 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 W.L.R. 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."

The above principles have been applied in many subsequent cases such as Paulus Pawa -v- The State [1981] PNGLR 498, The State -v- Tupui Kapera N567, The State -v- Iamge Waea N915 and many more. The principles enunciated in the authorities above say that failure by a trial judge who sits as a jury to warn himself of the dangers of convicting an accused upon circumstantial evidence and could be fatal and quite dangerous. I now warn myself that it is dangerous to convict on circumstantial evidence "unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the" two accused. These principles go further to say that to enable the Court to be satisfied beyond reasonable doubt of the guilt of an accused it is "necessary not only that his guilt should be a rational inference but that it should be the only rational inference". Essentially this means that an accused may be found guilty on the basis of circumstantial evidence if the guilt of the accused is the only hypothesis open on the facts: Allan Oa Koroka -v- The State and Mariano Wani Simon -v- The State [1988-89] PNGLR 131.

On the two cases before me, my primary findings are these. On the part of the State, there was an armed robbery conducted on the 1st of December 2000. The evidence mainly came in circumstantial nature. Evidence by the State concerning expenditure of large sums of monies by the two accused on consecutive dates namely the 6th and 7th of December 2000 are corroborated by evidence of Miriam Tony and Andrew Kusak. In case of the evidence by Constable Nicholaas Tedo, his evidence is that, the police acted on the intelligence report leading them to the arrest of the two accused. On the part of the defence, though they have given evidence of alibi, no evidence has been called to show how and where the money came from to be in the possession of the two accused. Although there was some evidence by Constable Andrew Lovok that the accused Michael Herman gave him K200.00 cash on 29th November 2000, there was no corresponding evidence to show where the other K600.00 and other money came from. In any event, the defence has to show where the two accused got the money from. This issue is a dark cloud on the defence case.

Applying the test laid down in The State -v- Tom Morris and Allan Oa Korokaa -v- The State and Mariano Wani Simon -v- The State (supra) can one say that from the primary findings of facts they are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused" or that the guilt of the two accused are the only inferences that the facts of these cases would enable me to draw. The two accused had the advantage of explaining to the Court in evidence, where they took the money from. Whether or not that money came from their parents or not or from friends is not clear from their evidence.

The two accused gave evidence to having some drinks with their friends at the Beach Hut Lodge, there is evidence of extravagant spending by the two accused which nobody would question but on the issue of where they obtained such monies have not been successfully explained to the Court.

Can it be said in the circumstances of the two cases before me that there is circumstantial evidence supporting essential elements of the charges for which the two accused are charged with. Or alternatively on the circumstantial nature of the State’s evidence and the alibi defence put up by the two accused, can one say that form the primary findings of evidence and facts presented to this Court that the facts are such that they are inconsistent with reasonable hypothesis other than the guilt of the two accused: Allan Oa Koroka -v- The State and Mariano Wani Simon -v- The State (supra). I answer these questions in the negative to the charges of armed robbery but do answer in the positive to alternative verdicts pursuant to s. 410 of the Criminal Code for receiving.

Exercising the powers given this Court under s. 547 of the Criminal Code, I return verdicts of guilty to alternative charges of receiving. I find the two accused guilty of the crimes of receiving pursuant to s. 410 of the Criminal Code.
___________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor