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State v Romeo [2008] PGNC 307; N3583 (13 October 2008)

N3583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1655 OF 2005

THE STATE

V

AUGUST JACK ROMEO, TONY LUCAS & STEVEN STICKY

Kokopo: Lenalia, J
2008: 7th, 8th, & 13th October

CRIMINAL LAW – Armed robbery – Not Guilty Plea - Criminal Code,
s.386 (2) (a) (b) Ch. No. 262.

CRIMINAL LAW – Armed robbery – Trial – Identification evidence – None of the three accused identified on the scene – Danger of convicting accused on identification evidence.

CRIMINAL LAW – Identification evidence – Principles of – No evidence of any connection between actual culprits and the three accused – Finding of not guilty.

Cases cited.
Papua New Guinea Cases

R v Sapulo Masuve (1973) No.732
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Wanjil & 3 Ors. [1997] PNGLR 64

Overseas Cases

Barca v The Queen (1975) 50 A. L. J. R. 180

Counsel

Ms. S. Luben, for State
Mr. P. Kaluwin, for the three Accused

13 October, 2008.

1. LENALIA, J: The three accused are charged with one count of aggravated armed robbery contrary to s.386 (2) (a) & (b) of the Criminal Code Act. On arraignment, they each and severally entered not guilty pleas. The State called five witnesses who gave oral testimonies. Before the trial commenced, a lot of documentary evidence were tendered by consent of the defence counsel. I will discuss the evidence in order of them being received and presented.

Prosecution Evidence

2. Documentary evidence tendered included the following:

➢ records of interview beginning with the first accused Exhibits 1 & 2, 3 & 4, 5 & 6 for Pidgin and English translation,

➢ certificates of indemnity dated 19th, 25th, & 31st July 2005 Exhibits 7, 8 and 9,

➢ rental hire agreement documents Exhibit 10,

➢ copy of accused Jack August Romeo's driving licence Exhibit 11,

➢ statement of witness Eric Eina Exhibit 12.

3. The three records of interviews contain denials. The records of interview had with accused Tony Lukas and Steven Sticky do not deny picking the three suspects at or near Vavagil Guest house. In answer to questions asked to the two accused, they said, the reason they picked the unknown persons was because they acted on compulsion from the three men who jumped onto their vehicle on the road. There is evidence of indemnity certificates of amounts of cash received and collected on 19th, 25th and 31st July 2005. The cash sums were received by SM Leong trade store in the heart of Kokopo town. The rental hire agreements were tendered to show that accused August Jack Romeo hired a vehicle from Eagle Real Estates here in Kokopo. A copy of the first accused driving license was tendered. The defence case does not deny the above evidence.

4. Oral evidence which is mostly circumstantial in nature came from six witnesses. The prosecution evidence is that between 9.30 am and 10 am on 18th day of July 2005 in front of S. M. Leong trade store opposite the back of John J. & H. Seeto in Kokopo town, Simon Annul an employee of that store carried a bag containing money in a box to Mr. Thomas Leong's vehicle parked outside close to the stairways up to the house. An unknown person ran from the other side of the street to the side where there were many vehicles as well as where Mr. Leong's vehicle was parked and threatened the employee by producing a bush-knife and ordered Simon to hand over the box to him or he would cut him.

5. Witnesses Gwae Kepas and Tony Tomigo were on the scene and were eye witnesses of this crime. In case of Kepas, he was formerly employed by S. M. Leong Service Station in 2005. He was refuelling many vehicles that morning but his attention was attracted by a young man who ran to Mr. Leong's vehicle and threatened an employee of Leong Trade store with a knife. He named the employee as Simon. He saw the youth took the box of money and ran towards a waiting get-away vehicle. He got into the back and the vehicle sped off.

6. Tony Tomigo was then employed by Kabiu Security Service. He said in evidence that he was on duty that morning and saw what happened. He stood near the fuel bauzer and saw a man run towards Simon from his back and held up a knife to stab Simon. He said, he saw the attacker grabbed the money box and ran away across the road to a gray Mazda Double Cabin and he ran behind the man and tried to hold on to him but, a knife was used to actually cut at Tomigo.

7. He jumped back onto the road surface and the waiting vehicle was driven away. This witness statement was tendered as a prior inconsistent as compared to the evidence he orally gave. It is marked Exhibit 1 'D' for the defence case. Just like the first witness, Tony Tomigo did not identify anyone on the scene as the robber covered his head with a piece of cloth.

8. The next witness Ilai Wawaongo was employed as a driver by Niolam Security Services at the time the offence was committed. He and his colleagues drove to Leong's Service Station to refuel their vehicle. After refuelling, he tried to drive out but, because there were many vehicles, so he had to give way to vehicles in front of him. When he was about to pull out, he heard shouts on or near the stairways to the shop. Ilai also witnessed the money being stolen by an unidentified man who ran towards a stationary silver gray coloured vehicle.

9. He jumped into that vehicle and the vehicle sped off. Ilai gave chase by driving after the get away vehicle, but he was blocked off by a bus as he had to give way to the bus. They drove up to TDS and saw another vehicle a white Ford with three people sitting on its back tray. He did not see the driver of that vehicle. When they pursued that vehicle, they could not catch up with it. They just turned around at the Kokopo High School junction.

10. A statement made to the police investigating team by witness Eric Enia was tendered by consent and marked Exhibit '12'. In his statement, he gives certain description of a vehicle Reg. No. Lak 539 in silver gray colour with two passengers sitting at the back. The statement reveals that, after he and the driver of the vehicle he was in finished talking with another person on the Service Station, he heard shouts at S. M. Leong trade store. His attention was drawn by the two men who were running.

11. He told his driver to give a chase but when they reached Taklam Guest house, they had to give way to an on-coming vehicle. When they drove through, they proceeded to Vavagil Guest house round about and caught up with another vehicle travelling up out of Vavagil round-about. It was a white utility. There were three persons sitting at the back. They gave chase again but the white vehicle was driving too fast so they lost track. He does not mention in his statement if he identified anyone.

12. The next three witnesses are members of the PNG Constabulary. Sergeant Kevin Bulu and other policemen were in a police vehicle at Baliora Police Barracks when they intercepted a vehicle radio message about the robbery at S. M. Leong Store. The message was that, a get-away Mazda double cabin silver gray in colour with its occupants had held up another vehicle a white Ford and both vehicles were seen driven up along the Toma-Warongoi road. After receiving this message, they drove out from the Baliora Barracks into the main thoroughfare and on the junction where they asked some boys if they had seen a Ford Ranger vehicle passed and if so which direction did it go. The boys on the road told police that the vehicle headed towards Warongoi.

13. As they were still talking, the same vehicle with the above description came from the opposite direction and stopped on the side of the road. The witness said, policemen approached the vehicle and they saw accused Tony Lukas came out from that vehicle. Sergeant Bulu's evidence is that after they spoke to accused Tony Lukas, they also found that accused Steven Sticky was sitting on the other side. Policemen asked Tony and Steven where they came from and they said they drove off three people at Wairiki plantation. He then invited the two accused to come with them to the police station at Kokopo.

14. The two accused were asked further questions at the police station and they invited the policemen to come with them to Wairiki plantation. When they arrived at Tony Lukas residence other policemen walked around and found Junior Enos Pau with the money bag. According to Sgt. Bulu, all the money inside the bag was intact and recovered in full.

15. Constable Robin Warbua was the next witness. He said, he recalls that when the three accused were questioned about the robbery, they admitted to being accomplices to this offence. He was one of the policemen that were led to Wairiki plantation where the stolen money was recovered and a Junior Enos Pau was apprehended. On the place where they had dropped off the three culprits, policemen called out for the three robbers that had been dropped off by accused Tony Lukas and Steven Sticky. Robin said Junior Enos surrendered himself to the police with the string bag containing the money.

16. The last prosecution witness Inspector David Yapu gave evidence on how accused Tony Lukas and Steven Sticky had asked him if it was possible for the police to go to where they dropped off the three robbers to try and recover the money as well as to apprehend the real culprits. This witness told the court that, the two accused admitted to driving the robbers off at Wairiki plantation. In cross-examination, it was put to this witness if it was true that when the two accused admitted, they merely admitted to driving the three robbers off at Malaguna No.4 market. The witness confirmed that, the two accused admitted to dropping the robbers at Wairiki plantation. That was the end of the prosecution evidence.

Defence Evidence

17. The defence case is total denial with the issue of identification. Accused August Jack Romeo and Steven Sticky gave evidence. On the date of this offence accused August Jack parked his hired vehicle near John J's store and walked into the shop to look for a school bag. He looked around for a suitable bag but he did not find one so he bought a can of coke and a news paper article. He walked back to where he parked the vehicle and opened it and as he was about to get into the driver's seat, he felt a sharp object pointed at his back.

18. As he turned around, he was pulled and pushed and threatened to give up the vehicle ignition keys. He gave up the vehicle keys and one of those who threatened him got into the vehicle and drove it away. The unknown person turned the vehicle around and as he drove passed this accused, he saw another person hop into the back of the car they drove away. August stood speechless. He immediately made his way up to the police station where he laid a complaint about the stolen vehicle. When he got to the duty counter, he was asked to give the description of the vehicle he hired which was now stolen.

19. After lodging his complaint, he was made to wait at the C.I.D office for some hours. After a long wait, the police got him into the office and started to question him about the robbery. He denied any involvement in the robbery that took place that morning. In cross-examination, the accused revealed that, the vehicle he had hired was owned by Eagle Real Estates. He was asked if he had any association with Tony Lukas and Steven Sticky. He was further asked if it was true that, he was seen sitting in the getaway vehicle by Tony Tomigo. Accused August Jack denied sitting in the stolen vehicle and said he was on his own the morning on the date of this offence. He further said, he drove his vehicle on his own and did not meet any of the other two accused.
20. Accused Steven Sticky also gave sworn testimony. In his case, he was with accused Tony Lukas in another vehicle. Accused Tony Lukas was the driver and after being in the market, they drove to T.D.S store where they stopped to attend to some business. After doing business there, they drove up the street leading to Vavagil Guest house. Steven said, as they drove up, one man waved them down so they slowed down. As they were slowing down, another two men came and three of them jumped onto the back of their vehicle.

21. Once the three men were on the tray, according to accused Sticky, accused Tony Lukas inquired with the three men as to where they were going. One of the three men answered by saying they should drive on and further on the three men demanded that they be dropped at Warongoi. Steven also said they only drove to Malaguna No.4 market where they stopped and dropped the three rascals. After being to the above market, the two of them returned and on their way back a police vehicle intercepted them and signalled them to stop.

22. They stopped and policemen started to ask the two of them questions about the robbery that had occurred an hour earlier. Accused Steven and Tony where searched and their vehicle was thoroughly checked. When asked about the robbery, the two accused denied involvement. They were taken and led into the police vehicle.

23. A policeman had to drive Tony Lukas's vehicle to the police station. At the police station, they were questioned about the robbery. Accused Sticky said, he denied taking part in the robbery. Steven Sticky does not deny knowing his co-accused Tony Lukas. His evidence in cross-examination shows that, he has known accused Tony for a long time. It was put to this witness that, was it true that he knew, the three men who got on their vehicle. Steven denied knowing the three robbers.

24. It was further put to this witness if he knew of the plan for the robbery. The witness answered in the negative. He was also asked if it was true that, he was giving directions to accused Tony Lukas to drive right up to Wairiki plantation. This witness revealed in chief that, after they had waited for sometime, they made an appointment to see the Officer in Charge of the Criminal Investigation Division. They in fact saw Inspector David Yapu. This is confirmed by the prosecution evidence.

Defence Address on Verdict

25. Mr. Kaluwin of counsel for the three accused submitted correctly that the issue is one of identification. Counsel submitted that looking at all evidence both for the prosecution and the defence, the three accused were not identified by any of the State witnesses. Mr. Kaluwin further argued in submission that, there was no connection between the three accused and the robbers. Part of his submission is that, when the accused Tony Lukas and Steven Sticky were apprehended they did not appear to be shaken by police. For these reasons, counsel urged the court to return a verdict of not guilty to the charge and to acquit the three accused on this charge of armed robbery.

Prosecution submission on verdict

26. Ms. Luben replied by saying that, although the State's case is mostly circumstantial in nature, the prosecution had proven its case. Counsel made reference to the evidence by the three civilian witnesses who had seen the vehicles that morning. Counsel submitted that, the three accused are charged for robbery under s.386 (2) (a) (b) of the Criminal Code by operation of s.7. The later proviso defines principal offenders. Counsel submitted that there is sufficient circumstantial evidence for the court to find the three accused guilty as they counselled and procured the commission of the crime.

Application of Law

27. The three accused are charged with a serious offence of armed robbery. Section 386 (1) (2) (a) & (b) of the Criminal Code states:

"(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

28. I identify two issues on this trial. The first one is the State's evidence is wholly circumstantial in nature. There is no direct evidence of any of the State witnesses linking the three accused to this crime. This may be the reason why the prosecution sought to rely on s.7 of the Criminal Code. But in order for the prosecution to invoke the above proviso, there must be some links to connect the three accused to the offence with the actual culprits. There should be evidence to show that each of the three accused counselled procured or assisted in any way in the commission of this offence. Obviously there is no such evidence connecting the three accused with the offence.

29. Taking that point further even if there was some connection, the prosecution must prove that, the three accused or any one of them played a part in planning the robbery. This is exactly what s.7 of the Code is saying and this Section defines parties to offences in the following words:

"(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; and

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

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

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

(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."

30. For the prosecution to rely on the above section, it must prove that, the three accused must have done something to aid, procure or counsel or had omitted to do anything for purposes of committing the crime charged. There is no evidence before this court of any preconcerts to show if the three accused counselled or procured any other person to commit this offence: R v Sapulo Masuve (1973) No.732. The records of interviews (see Exhibits. 1 – 6) were tendered by consent. They all contain denials.

31. When accused Tony Lukas and Steven Sticky were asked if they had picked up three persons who were suspects, they admitted picking them up somewhere near the Vavagil Guest house round-about. In case of accused Tony Lukas, when the investigating officer asked him how the three suspects got into the vehicle he was driving. In answer to questions 24 and 25 in the record of interview, Tony said, when he and accused Steven slowed down at the junction behind the stolen vehicle, the three men jumped down from the get-away vehicle and pointed a bush knife at Tony and Steven Sticky and asked the driver (Tony Lukas) to drive out immediately.

32. In case of accused Steven Sticky, he gave evidence that, when they slowed down, the three men boarded their vehicle and ordered the driver to just take off. Despite allegations by police that, accused Sticky could have been an accomplice to the three men who conducted the robbery, there is no evidence directly linking Tony and Steven to the three suspects.

33. The law on circumstantial evidence is clear that where the case against an accused substantially rests on circumstantial evidence, the court cannot return a verdict of guilty unless circumstances are such that they be inconsistent with any reasonable hypothesis other than the guilt of the accused: The State v Tom Morris [1981] PNGLR 493. The principles stated in the above case were affirmed by the Supreme Court case of Paulus Pawa v The State [1981] PNGLR 498. The Court in the above case also adopted and applied the principles of circumstantial evidence stated by the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 A. L. J. R. 108.

34. The principles developed in this jurisdiction from the above cases and many more after them is that to enable this court to be satisfied beyond reasonable doubt about the guilt of the three accused, it is necessary not only that their guilt should be rational inferences, but that such guilt should be the only rational inference that the circumstances of this case would enable me to draw: The State v Tom Wanjil & 3 Ors. [1997] PNGLR 64. In the case before me, I do not find any evidence linking the three accused with the three main suspects who are still at large. One of those three suspects was named on the indictment presented on which the three accused are now being tried.

35. The second issue involves identification. Obviously, the three accused were not identified by any of the State witnesses. Although witness Tony Tomigo mentioned in his evidence, that he saw the accused August Jack Romeo sitting in the vehicle, he contradicted himself because, he did not name or identify anyone on the scene when he made his statement to the police. After all even the State' evidence substantiates that of the defence, that after August's vehicle was stolen, he immediately reported to the police station. He was kept there until the other two accused were apprehended. Tomigo's statement was tendered as a prior inconsistent statement, (see.Ex.2D.).

36. I now warn myself of the dangers of convicting the three accused on the warning stated by the Supreme Court in John Beng v The State [1977] PNGLR 115. As alluded to earlier, there is no trace of identification evidence in the prosecution's case. There is no quality of the identification particularly in relation to the first accused. Quite obviously accused August Jack Romeo could not be everywhere at once.

37. I accept this accused evidence that he was in John J's store that morning when his vehicle was stolen from him and due to this findings, I find that the person whom witness Tony Tomigo referred to in his evidence was not accused August Jack. Still on identification, there is no identification evidence against the other two accused. Having found so, I find the three accused not guilty on this charge and I must dismiss the charge. The Court orders their bails be refunded to them.

_______________
The Public Prosecutor: Lawyer for the state
The Public Solicitor: Lawyer for the three Accused.