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State v Kumai (No 1) [2004] PGNC 76; N2698 (29 September 2004)

N2698

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1664 of 2002

THE STATE

-v-

TERENCE KUMAI (No. 1)

Lae: Manuhu, AJ

2004: September 9, 10, 13, 15, 17, 22 & 29.

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Armed robbery –Circumstantial evidence – Analysis of.

CRIMINAL LAW – Particular offence – Armed robbery –Stealing not proved – Alternative verdict of attempted robbery.

Cases cited:
Pawa v The State [1981] PNGLR 498.
The State v. Thomas Gitai Bawai (2001) N2074.

Counsel:

Mr. R. Gangkarch, for the State.
Mr. R. Yombon, for the Accused.

29th September 2004.

MANUHU, AJ: The Accused, Terence Kumai, is charged on one count of armed robbery. The State alleges that on 6th May 2002, at Lae, the Accused stole from Kivu Yagamu with threats of violence monies in the amount of K17,165 the property of ADN Cash and Carry ("ADN"), a supermarket in Lae. It is specifically alleged that the Accused was the driver of the vehicle that was used during the robbery.

The scene of the alleged armed robbery is the ADN cash office. Cashier Kivu Yagamu recalls that she and Janet had cash, presumably from the previous day’s takings, spread upon the table for banking preparations. At that instant, someone unexpectedly knocked on their door as well as the adjacent office door. Kivu Yagamu peeped through a hole and saw someone she never knew. She then heard a female staff inside the adjacent office screamed and, at that instant, the robbers broke into the cash office she and Janet were in. Fortunately, she and Janet had by then escaped through the back door and hidden themselves in the liquor room.

Anna Api also witnessed the robbery from the sales office but she did not recognize anyone. Dorcas Luke was in the shop when she heard the workmen screaming that there was a robbery. As she looked out of the shop through the main door, she noticed a youth armed with a pistol standing with the security guard. She was not able to recognize the youth. The security guard could have been Aron or Erick Dua. According to Erick Dua, four youths pointed a "pump action short gun 5 round" and two factory made "pistols" at Aron and himself and forced them out of the shop. Erick also saw the four robbers got into a "white car, tinted glasses", allegedly driven by the Accused, and they went away.

It should be noted at this point that none of the witnesses have stated if any money was taken and, if so, how much was taken. They recalled the four robbers proceeding into the cash office and out of the shop. However, cashier Kivu Yagamu does not state if any money on the table at the cash office was taken at all. Secondly, none of the witnesses recognized any suspects and none of them were invited by police to identify the Accused following his apprehension. It would, in fact, be unnecessary as the Accused, if he was the driver of the get away vehicle, could not be recognized from behind the tinted glasses. Thirdly, none of the witnesses identified the number plate of the waiting white tinted car and none of them were asked by police after the robbery to identify any suspect vehicle. The prosecution’s case against the Accused is, therefore, built upon circumstantial evidence. It alleges in particular that the white tinted glass sedan car that was used as the get away vehicle during the robbery belonged to Tafun Laisias; and that, on the day in question, Tafun Laisias had authorized the Accused to drive it.

The law relating to circumstantial evidence is well established in this jurisdiction. In the Supreme Court decision of Pawa v The State[1], Andrew J said:

"I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 when he said:

‘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.’"

The end result of the test is the same as the usual test. All elements of an offence against an accused person have to be proved beyond all reasonable doubts. One reasonable doubt is sufficient to upset the prosecution.

In this case, the element of time is one of the crucial factors in the prosecution’s case. The alleged armed robbery took place, according to Anna Api, between 9.30 am and 10.00 am; according to Dorcas Luke, between 9.00 am and 10.00 am; and, according to Erick Dua, at around 11.00 am. These are witnesses at ADN. In the meantime, Evelyn Ulaipo was in her Abel Tasman Street Lae Battery Service flat at Salamanda between 10.30 am and 11.00 am when she heard someone calling her husband, and four men, namely Peter Willie, Roger, Maika Yawau and another rushed into the flat. Her flat would be about two kilometres to ADN. She was scared of the four men as they were armed with a "pistol" and a "homemade gun". She was also scared of the police. These men assured her that no one was pursuing them. They hid their weapons in the flat and went away through the back yard with a bag.

When Evelyn Ulaipo later came out of her flat with her children to go to the clinic, she saw "a white car, tinted glass" parked in front of her gate. She does not state what the registration number of the vehicle was. It is also not stated if the four men rode in that vehicle. It is unclear if that vehicle was already at the gate when the four men rushed into her flat. Evelyn Ulaipo returned from the clinic to her flat at around 12.00 pm.

Meanwhile, in another location in Lae City, Policeman Sioni Bombei and his colleagues had received a report at about 11.30 am that Tafun Laisias’s vehicle, a white tinted glass vehicle, registration number LAK 490, was abandoned at Abel Tasman Street by some youths in the morning. This location would be Evelyn Ulaipo’s place. The said vehicle was later that afternoon removed by Sioni Bombei and his colleagues.

Naturally, therefore, one must inquire into how Tafun Laisias’s vehicle got into Evelyn Ulaipo’s place. Did the four men take it there? And, where did the four men come from? Evelyn Ulaipo’s evidence in that regard is that the four men rushed into her flat between 10.30 am and 11.00 am. Her flat would be about two kilometers from ADN. The alleged robbery took place between 9.00 am and 11.00 am. It was executed by four men. The fifth man was the driver. A pistol was used during the armed robbery. Evelyn Ulaipo saw a pistol in the hands of the four armed men. The witnesses at ADN saw a white tinted car. The abandoned vehicle at Evelyn Ulaipo’s place was also white and tinted. There is no evidence of any other armed robbery in Lae City on 6th May 2002. The Accused does not really deny that the alleged armed robbery took place. In all the circumstances, I am satisfied that the four men were running away from trouble. Consequently, I am satisfied that they were responsible for executing the armed robbery in question. No other conclusion is possible.

I must return to the initial query. How did Tafun Laisias’s vehicle get to Evelyn Ulaipo’s place? Someone, including Tafun Laisias, must know about this. According to Tafun Laisias, at about 8.00 am on the day in question, he gave his vehicle to a Yawing to drive it home after he got off at the Courthouse in Lae to appear at the National Court Callover. It seems that Tafun Laisias was still at the Courthouse when ADN was allegedly robbed. When asked to identify Yawing, Tafun Laisias pointed to the Accused person. He explained that he knew the Accused as Yawing and not Terence Kumai. Whether the Accused is Terence Kumai or Yawing is of no real consequence. Names do not drive vehicles. Persons do. I accept Tafun Laisias’s reference to the Accused as Yawing. He will continue to be referred to in Court as Terence Kumai. The Accused said he did not know who Tafun Laisias was, and he did not drive his vehicle on that day in question. Any story of such stark contrast clearly shows that someone is telling lies. Either Tafun Laisias or the Accused person is telling lies.

In that connection, Tafun Laisias’ evidence is consistent with the evidence that the key to Tafun Laisias’s vehicle was found in the possession of the Accused and Gordon Jerry at the time of arrest later that day. Relevantly, between 9.00 am and 11.00 am, policemen David Tenige and Andrew Katuwaku were driving around in an unmarked police vehicle "Called Sign Charlie 4". They were driving southward along Milfordhaven Road from Lae Technical College and LFA Oval towards the junction and roundabout. As they approached the roundabout, they sighted Bobby Selan’s vehicle, a white car, registration number SAA 746. The occupants of this vehicle acted "suspiciously" but there were no apparent reasons to search the vehicle. Bobby Selan’s vehicle drove towards town. David Tenige and Andrew Katuwaku then became aware through their radio network of the armed robbery in question as they approached the Fire Station along Milfordhaven Road. That was when they became more interested in Bobby Selan’s vehicle and decided to monitor its movements between 10.30 am and 11.00 am. The vehicle was eventually stopped by the Task Force upon Huon Road as it approached the Traffic Registry. In the vehicle were the Accused and Gordon Jerry.

The vehicle was searched and then escorted to the Police Station. While proceeding to the Police Station, Sioni Bombei stated that "something like a bundle of keys" was thrown out of the car. Consequently, after referring the Accused and Gordon Jerry[2] to CID members, Sioni Bombei and other policemen returned to the location where the "keys" were tossed out. The area was searched but no keys were found. They were advised however that a bystander had found the keys and was going to take them to the Police Station. When Sioni Bombei returned to the Police Station, the keys were already with CID member Koni Winjan. At about 11.30 am, it was reported that Tafun Laisias’s vehicle, a white tinted vehicle, registration number LAK 490, had been abandoned at Abel Tasman Street by some youths in the morning. The lost and found keys were taken to Abel Tasman Street and tested on Tafun Laisias’s vehicle and one of them was the correct car key. The vehicle was thus taken to the Police Station.

It has to be noted that the bystander who found the keys did not give evidence. Consequently, the evidence on where he may have found the keys is, as an exception to the hearsay rule, admissible but such evidence is not proof that the keys were in fact found at the location where Sioni Bombei thought he saw a bunch of keys being tossed out. Thus, in the absence of the bystander, the lost and found keys do not implicate the Accused. This anomaly was, however, rectified by the prosecution when it capitalized on the decision to have the Accused give sworn testimony. What followed was devastating against the Accused. When the Accused gave sworn evidence, he exposed himself to cross-examination for all purposes by the prosecution. In the process of cross-examination, the Accused person’s statement, dated 6th May 2002, which contained admissions that he and Gordon Jerry tossed out the keys in question, was put to him and eventually admitted into evidence. The Accused explained that those admissions were made two months after his arrest after it was promised that he would be assisted with bail.

In the midst of all the denials, who do I believe? I find the Accused to be a generally unimpressive witness. He began his story of him coming to the City; and then proceeding to Salamanda to look for his cousin Gordon Jerry. When he was at the Show Ground, Gordon Jerry saw him and gave him lift in Bobby Selan’s vehicle. His explanation of how he came into the City is that of an aimless, purposeless, and, therefore, untruthful, individual. If he is innocent as claimed, it is odd that he did not present his side of the story at the earliest opportunity in his record of interview.

Tafun Laisias, on the other hand, was somewhat unimpressive but his evidence that he gave his vehicle to the Accused on the day in question is corroborated by further evidence that his car keys were found in the possession of the Accused and Gordon Jerry. The Accused tried to distance himself from his admission statement of 6th May 2002 but I do not believe him. I do not believe that the statement was signed to secure bail. The date on the statement speaks for itself. It was signed by the Accused and is thus binding on him. It should be noted that Tafun Laisias’s vehicle could not have been driven to the Police Station without the lost and found keys.

Gordon Jerry gave evidence for the Accused but they are best cousins. At the time the Accused was picked up, Gordon Jerry must have known there and then that the Accused was in trouble. They collaborated to throw out the keys in question for obvious reasons. In fact, Gordon Jerry also signed a statement dated 6th May 2002 that he and the Accused threw out Tafun Laisias’s keys. I have the impression that Gordon Jerry covered up for the Accused on the day of the robbery and is still covering up for his cousin. I do not believe him.

The rejection of the Accused person’s evidence means that Tafun Laisias knew the Accused. On the day in question, Tafun Laisias and the Accused drove to Lae Courthouse and Tafun Laisias got off at about 8.00 am, leaving the vehicle to the Accused. The Accused had plans with the vehicle. He, by reasonable inference, proceeded to pick up the four armed men and, when they arrived at ADN, the four armed men went into the shop while the Accused waited in the car. When the four men returned, the Accused drove them to Evelyn Ulaipo’s place. The four men ran into the flat while the Accused proceeded onto the road where he met Gordon Jerry who gave him lift. The Accused still had the keys to Tafun Laisias’s vehicle. The keys were tossed out of the vehicle on their way to the Police Station.

On the basis of the foregoing findings, the Accused was involved in the alleged armed robbery as the driver of the get away vehicle. He is, in law, as guilty as the four armed men for committing the alleged armed robbery.

There is, however, another important issue to consider. I have already mentioned that none of the witnesses have stated if any money was taken and, if so, how much was taken. The witnesses recall the four robbers proceeding into the cash office and out of the shop. However, cashier Kivu Yagamu does not state if any money on the table at the cash office was taken at all. Evelyn Ulaipo stated that the four men had a bag but it is unclear what the bag contained. Neither was the bag described. I would like to think that something was stolen but I cannot find any factual or circumstantial basis for such a conclusion. I have been urged to find that some money was stolen but the witnesses have not given such evidence. I cannot say that the robbers did not steal anything but I cannot say if they got anything. Indeed, I do not know how the prosecution alleged that over K17,000 was stolen in the armed robbery.

It seems to me that the case was unsatisfactorily handled. Many cases, if properly investigated, could result in shorter trials or guilty pleas. In this case, for instance, police should have obtained finger print liftings from the vehicle to determine if they match the Accused person’s finger prints. The witnesses at ADN should have been asked to confirm the identity of the vehicle abandoned at Evelyn Ulaipo’s place. Fortunately, there was enough circumstantial evidence to connect the Accused to the alleged armed robbery. In any event, if the case had been properly analysed, someone should have given evidence on whether any money and how much was stolen.

It is late now to do anything to correct the deficiencies. I cannot be satisfied that K17,000 or any money was stolen. If nothing was stolen, I cannot find the Accused guilty of armed robbery where stealing is an essential element. See The State v. Thomas Gitai Bawai.[3] However, the Accused is not entirely exonerated from criminal responsibility. In the circumstances, the Accused could still be convicted for attempted robbery.

Section 546 of the Criminal Code provides that on indictment charging a person with committing an offence, he may be convicted of attempting to commit the offence. Section 4 of the Criminal Code defines attempts to commit offences as when a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment; and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence. In this case, the intention to steal with threat of violence and or physical harm was executed without fail. No one and nothing stood in the way of the Accused and his four accomplices. Unfortunately, the witnesses are unable to say if any money was stolen. I am satisfied, in the circumstances, that a verdict of guilty on an alternative count of attempted robbery is in order. I find the Accused guilty of attempted robbery and I convict him accordingly.

Verdict : Guilty of attempted robbery.
___________________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Paraka Lawyers

^[1] [1981] PNGLR 498 at 501.
^[2] Gordon Jerry is co-Accused but was acquitted on no case to answer submission.
^[3] (2001) N2074.