N2917

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 38 of 2003
CR.NO. 77 of 2003
CR. NOS. 1152 &1155 of 2003

THE STATE

-V-

REMI MISSION, DICKIA LEO WARAGAT & HORRIS RARAKA

KOKOPO: 	LENALIA;J.
2005: 23rd & 26th May

Counsels
Ms. S. Luben, for the State.
M. Peter for 2nd & 3rd Accused
T. Potoura, for 1st Accused 	
J. Isaac assisting Mr. Potoura

26th May 2005

LENALIA, J. The three accused were jointly charged with two counts of armed robbery offences against s. 386(1)(2)(a)(b)(c) of the Criminal Code. For purposes of this judgment only the 1st and 2nd accused appeared. The third accused although given the initial date of this trial in March call/over did not turn up for the trial. The Court proceeded in his absence.

When the trial of the 1st and 2nd accused commenced on 9th of this month, certain documents were sought to be tendered by the prosecution counsel. Those documents were a confessional statement and the record of interview obtained and 'conducted with the accused Dickia Leo Waragat, (see a confessional statement obtained from same dated 21. 11. 02 and the record of interview conducted with him on 11th March 2003).

Mr. Potoura of counsel for the second accused objected to the tender of those documents and a voir dire trial was conducted. In that trial, the State called two witnesses. They were the interviewing officer Sergeant Poren Yangiri and his corroborator Senior Sergeant Josiah Temmie. 

The Court found in that trial that, the confessional statement and the record of interview were obtained contrary to the terms of the Judges Rules and that the record of interview was conducted contrary to s. 42(2) of the Constitution when the accused was not given the chance to see his councilor by the name of Allan Takiu. 

Then on 23rd day of this month, the State called the remaining last two witnesses. Before they were called, some documents were tendered by consent. In the first accuser’s case, the following documents were tendered:

(a)	A confessional statement made by him on 9/12/02.
(b)	Statement by Eliab Herman Ex. "C"
(c)	Statement by Ranga Tataeng Ex. "D"
(d)	Statement by Const. Willie Mahut Ex. "E"
(e)	A set of photographs Ex. "F" and "G"

Exhibits "C" to "G" were also consented to by Mr. Potoura of counsel for the second accused.

The tendered statements do nothing more than confirm that there were two separate armed robberies. The first of those crimes was conducted at Skowhegan Commercial Complex Centre in the heart of Kokopo town. Eliab Herman parked his vehicle on the scene to pick up a set of timber seats to be put on the tray of his vehicle, a Mazda Ute Reg. No. H 2146. While attending to that, the gang struck.

When the victim was doing that, a number of security personnel assisted him. In the course of that, four young men approached Herman and one of them demanded the vehicle keys to be given to him. The victim told the men he did not have the keys with him. The men searched Herman’s body but they could not find the ignition keys. 

They walked to where the vehicle was parked and found that the keys were still hanging on the ignition. The gang got into the vehicle they tried to force the victim into the back of his vehicle, he shrugged them off and the gang drove off. 

In relation to that first armed robbery, there was no identification made by the victim nor by any other witnesses.

The second crime took place at the ANGCO. COCOA Limited cocoa shed at Takubar. The second offence took place late in the evening on that same date namely 5th of September 2002. The Assistant Manager of the above company made a statement confirming that there was a group of heavily armed men which broke and entered the company cocoa shed and therein they stole a total of eleven (11) bags of dried cocoa. That quantity of cocoa could have fetched an estimated sum of K6,000.00.

The two eye witnesses, Michael Roman and Joseph Kiapen testified on oath that, between 11 and 11.30 pm on the above date they were on night duties that evening when the gang came to the company yard. Michael Roman was the first man to see the two men standing in front of the company premises. That a distance away from the yard there was a vehicle parked in darkness. To this witness, there were a number of men standing near the vehicle. When asked in cross-examination if he identified any of the two men, he said, he saw Horris Raraka and Remi Mission. He said the distance on which he saw the accused from was between 25 to 30 meters, that is the distance from the dock to the main road and stairs up towards the Court premises.

The other witness, Joseph Kiapen although was on the company premises, he was alerted by the first witness and so he came to join his colleague. This witness saw the two suspect at a distance of 10 to 15 meters. Joseph confirms evidence by Michael that, the man with the gun fired a gun shot and Michael received pellet wounds on his left arm.

Both witnesses were asked as to how well they each know Horris Raraka and Remi Mission. In case of witness Michael Roman, he said he lives with the accused Horris Raraka at Takubar village and has known him for a long time. That accused Remi Mission’s village is just at the back of Takubar village. In the case of witness Joseph Kiapen, he said he went to school together with both Remi Mission and Horris Raraka.

After the State’s case was rested, Mr. Potoura of counsel for the second accused made a "no case to answer" submission. He submitted that there was practically no evidence against his client Dickia Leo Waragat. Relying on the case of The State – v – Paul Kundi Rape [1976] PNGLR 96, he submitted his client had not been identified and quoted the above case which had been quoted in many case for the principle that when the case for the prosecution has ended and where a submission by the defence is made that there is no case to answer there and then the Court must consider the question of whether or not an accused could lawfully be convicted as compared to the other question of whether as the evidence stands a person ought to be convicted, see case of John Beng – v – The State [1977] PNGLR 115. 

Quite obvious as it was, Ms. Luben acceded to the submission of "no case to answer". At that stage of these proceedings, the Court commented that since the evidence was fresh in the mind of counsels and the Court, there were no procedural rules prohibiting the Court from proceeding to make an extempore ruling on the defence submission.

The Court in fact proceeded to make that ruling by upholding the submission of "no case to answer".

Against the first accused are two specific pieces of evidence. The first of those is a confessional statement obtained from the accused Remi Mission, see Ex. "B" and the record of interview conducted with that accused. In those two documents, the accused readily admitted to being picked up on the road near Takubar village. He further confessed to being very drunk as he said he had been drinking at his uncle’s house and he wanted to go home and waited for a vehicle to pick him when the stolen car came and picked him up. 

The accused statement also reveals that, when he was pick up, there were many boys in the vehicle and he could only recognize one of them. He named the person he recognized as Horris Raraka.

In the record of interview, Remi confirmed what he had said in his confessional statement. He said though he was in the stolen vehicle, he was not involved in the first armed robbery nor was he involved in the initial planning of the two armed robberies. Evidence by the two State witnesses confirm there were more than four people in the vehicle.

Evidence tendered against accused Remi Mission also confirm what accused Remi said in his unsworn statement made from the dock where the accused said, he was never with the gang earlier that evening nor was he at Skowhegan when the vehicle was stolen. That when they stopped at the scene of the second robbery, he slept at the back of the vehicle because he was so drunk.

The accused had made certain admissions about his presence on the scene of the second armed robbery. The description by the two witnesses of the position of the light is not really clear. The distance at which the two State witnesses stood to identify the accused Horris Raraka and Remi Mission throws a lot of doubt in the mind of this Court. The light which was said to be above the entrance to the office of the ANGCO premises was not properly described as to how high was it and how bright had it been that night. 

There is no evidence before the Court as to whether the two accused had spoken to the two State witnesses in order for the State witnesses to recognize Horris Raraka or Remi Mission. Having warned myself of the dangers of convicting the accused on the identification evidence on the principles stated on the case of John Beng – v – The State [1977] PNGLR 115, I must reject the identification. 

For this reason, I am satisfied by the accused confessional statement, the record of interview and the accused unsworn statement from the dock, that though he was on the scene he slept at the back of the vehicle.

The next issue to consider is what part did the accused played in the commission of the crime. In terms of s. 7 of the Criminal Code, for a person to be found guilty, he must have been involved in the following manners as define by s. 7 of the Code:

"7. Principal offenders.

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:-

(a)	every person who actually does the act or makes the omission that constitutes the offence.

(b)	every person who does or omits to do any act for purpose of enabling or aiding another person to commit an offence.

(c) 	every person who aids another person in committing the offence.

(d)	any person who counsels or procures any other person to commit the offences.

(2)	In Subsection (1)(d), the person may be charged with:-

(a)	committing the offence; or 
(b)	counselling or procuring its commission.

(3)	A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is-

(a)	guilty of an offence of the same kind; and
(b)	liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission." 

It is established law now that mere presence on the scene where an offence is committed does not render it sufficient to constitute an "aider" or "abettor": R – v – Opu Anuma (1974) No. 801. To be an aider an accused must participate in aiding with full appreciation of what an active party may be doing and must have intention to aid him: R – v – Turan (1952) No. 211

And on a charge of being a "counsellor", the prosecution must show the defendant must commit an offence of the kind that was committed and that it was intended and it must be shown that, it was intended with such knowledge and that the accused did something to assist or help the offender commit such offence: Imiyo Wamela – v – The State [1982] PNGLR 269.

On "encouragement", the prosecution must prove that, the accused intended to give encouragement and it must be proved that an accused willfully encouraged someone to commit the crime committed: Agiru Aieni – v – Paul Tohian [1978] PNGLR 37. And it was held in R – v – Abia Tambule [1974] PNGLR 250 that intentional encouragement of a crime is sufficiently shown whether by word or action and presence is not prima facie accidental, see also R – v – Wendo [1963] PNGLR 217.

In order for an accused to be found guilty of an offence pursuant to s. 7 of the Criminal Code, the prosecution must prove the accuser’s "mens rea", that is to say, the state of the accused mind at the time the offence was committed. Mens rea varies from crime to crime and it is either defined by statute creating the offence or it can be established be the principle of "precedent" which principles have been adopted by Schedule 2. 2 of the Constitution.

The Latin maxim "actus reus non facit reum nisi mens sit" which means an act does not make a person guilty of a crime unless his mind be also guilty fits into the principles stated in the above cases discussed under the Criminal Code in s. 7 in regard to participation of offences.

Applying the tests and principles in relation to an accused being an "aider" or an "abettor" an discussed in The State – v – John Badi Woli and Pangas Rakam [1978] PNGLR 51 and the principles of "encouragement" and being a "counsellor" as stated by the Supreme Court in Porewa Wani – v – The State [1979] PNGLR 593 to the circumstances of the instant trial where does Remi Mission’s case fit in.

Or was the accused Remi Mission aided or abetted or did he encourage the men who picked him up at Takubar or was he ever aware at all about the gang’s intentions so much so that it could be said that the accused Remi Mission assented in circumstances constituting aiding in terms of R – v – Witrasep Binengim [1975] PNGLR 95. 

As I found, the prosecution evidence falls short of the tests and principles stated in the above cases. Bearing in mind the standard of proof in criminal cases that being of "proof beyond reasonable doubt" it would be wrong in law to assume that because the accused was in the midst of others that evening he too should found guilty of being an accomplice, an aider, a counsellor or abettor. Nor can the Court assume anything from the evidence that the accused encouraged the men who were with him that night.

Having come to such conclusion, the Court must return verdicts of not guilty on both charges. The Court therefore finds the accused Remi Mission not guilty as charged and his cases are dismissed and he shall be forthwith discharged unless he has any other cases against him.

In case of the accused Horris Raraka, this trial commenced in his absence and he has the right to be heard and present at his trial. There was no plea taken and under s. 552 of the Criminal Code he must be asked to plead to the indictment on the charges contained therein. Thus accused Horris Raraka’s case is adjourned sine die. The warrant of arrest has been issued for him and when he is arrested he shall be properly tried by another judge. 

_________________________________________________

Lawyer for the State		:	The Public Prosecutor
Lawyer for 1st,3rd Accused	:	The Public Solicitor
Lawyer for 2nd Accused	:	 Paul Paraka Lawyers.