N3365

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1071 OF 2006

THE STATE

V

TERRENCE YABOK HIAFRIE (No. 1)
Accused

Wewak: Davani .J
2008: 22, 24 April

CRIMINAL LAW – Aggravated robbery – committed on the street – use of bush knife – S. 386 (1) (2) of Criminal Code Act.

CRIMINAL LAW – Admissibility of statement by accused – no objection raised as to admissibility – effect – it is good evidence.

CRIMINAL LAW – Identification – admission by accused – a rational inference as to guilt – only hypothesis is guilt.

Facts

The accused was arrested and charged for armed robbery. Upon arrest, he told the policemen that he had used up most of the money. He said that after the police officer told him "you know why we are here." Defence counsel did not raise objections on the admissibility of accused’s statement that he had used up most of the money.

The issues before the Court were;

1.	Whether the accused’s admission that he used up most of the money, is evidence of his guilt?
2.	Whether the court can safely infer on the admission that there is no other hypothesis but guilt?

Held

1.	The accused’s admission is evidence of his guilt.
2.	The court can safely infer, on the admissions, that there is no other hypothesis other than the accused’s guilt.

Cases cited:

Papua New Guinea Cases

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983], NSWLR); 
The State v Simon Ganga [1994] PNGLR 323;
State v Anis Noki [1993] PNGLR 426 at 427;

Overseas Cases:

Browne v Dunn (1893) 6 R 67 (HL); 

Counsel:

L. Rangan, for the State
M. Mwawesi and F. Kirriwom, for the Accused

VERDICT

24 April, 2008

1. DAVANI .J:   Terence Hiafrie (the ‘accused’), pleaded not guilty to one count of aggravated robbery, charge laid under s. 386 (1) (2) of the Criminal Code Act (‘CCA’), necessitating a trial.

State’s allegations

2.     The accused, from Saurei No. 1 village, Wewak, is alleged to have committed this offence on 24th April, 2006. The State alleges that he, together with one other, on 24th April, 2006, at Wewak, held up 2 female employees of Wewak Haus Bet Ltd and stole a money bag, containing K19,360.00, the property of Wewak Haus Bet Ltd. It is alleged the accused and one other confronted the female employees, after which the accused punched employee Priscilla Sakarai, grabbed the money bag and then, with his friend, made their getaway on bicycles. The State alleges that the accused was armed with a bush knife when he accosted the employees, who were on their way to the bank to deposit the monies.

Issues

i.	Whether the accused’s admission that he used up most of the money, is evidence of his guilt?

ii.	Whether the lack of objections on the admissibility of that evidence is sufficient to commit the accused? 

I address both issues together.

Evidence

i.	By consent – Several documentation were handed up to court, with the consent of both parties. These were;

•	Pidgin and English version of the accused’s Record of Interview with the police dated 12th May, 2006;
•	Statement of arresting officer Sergeant Alex Maulken dated 12th May, 2006;
•	Statement of Corroborator Piria Imasar dated 12th May, 2006;
•	Photograph of bicycles allegedly used in getaway by accused and his counterpart;
•	Sketch plan of crime scene;
•	Undated Statement of Michael Tan, owner of Wewak Haus Bet 			Ltd; 
•	Priscilla Samaria’s statement dated 24th April, 2006;
•	Wilma Ragni’s statement dated 24th April, 2006;
•	Plastic bag containing cash of K400.00, given to the police by the accused.

ii.	Prosecution – The State called two policemen. Constable James Wari’s evidence was that on 10th May, 2006, he together with other policemen, went to the accused’s home, arrested him and took him to the Police Station. Police Officer Nelson Edes’ evidence is similar, except that he said he cautioned the accused i.e told him his right not to speak, and after that, asked him where the money was.

iii.	Defence – The accused elected to give sworn evidence. He said he was not involved in the robbery.

Analysis of evidence and the law

5.     The State’s evidence is that they were told by an informant that the accused was the person who robbed the Wewak Haus Bet workers. About 4 am, armed policemen went to the accused’s house, surrounded it then woke him up. Nelson Edes said when the accused appeared at the door way, he said "Terence, you know why we’re here." He then cautioned the accused by telling him not to say anything and that anything he wished to say will be taken down on paper and given in court. That was when the accused told them that he had used up most of the money but had some left. He went in and came out with a plastic bag. The policemen opened the bag and noted there was some cash in there. They counted it and found there was K400.00 in K50.00 notes. This was tendered into evidence.

6.     Defence counsel submits that the State did not establish that it was the accused who committed the robbery.

7.     The fact that the accused told them that he had used up most of the money, is that sufficient to convict him on the offence of armed robbery?

8.     The State did not bring any eyewitnesses to prove the offence. But the fact that the accused said he had used up most of the money raises the following in my mind;

i.	Does this raise a reasonable and rational inference as to guilt? and

ii.	Is there any other evidence inconsistent with any reasonable hypothesis other than the accused’s guilt?

9.     The elements of the offence of aggravated armed robbery that must be proven beyond reasonable doubt by the State are;

i.	A person
ii.	commits the offence of robbery
iii.	and is armed with a dangerous weapon

10.    The statements tendered by consent into court show that the assailants were armed with a bush knife, that there were two of them and that a money bag containing K19,360.00 the property of Wewak Haus Bet, was stolen. The only element that remains to be proven is in relation to "A person".

11.    Mr Mwawesi did not put any authorities before the Court to support his contentions that the statement by Police Officer Edes on sighting the accused that "you know why we are here" is not conclusive evidence that the accused was properly identified. But the evidence is that this statement was made because the Police were reliably informed that the accused was the robber. I say this against the backdrop of this case, that Wewak is a small town, the robbery was committed in broad daylight, and a lot of people witnessed this robbery. Police Officer Edes, relying on information from an informant, arrested the accused. This is similar to a situation where village people conducted their own investigations to locate the trouble makers and then bring them to the police. As Woods .J said in State v Anis Noki [1993] PNGLR 426 at 427 that "…Again, the communal nature of Papua New Guinea society makes one realize that there can be very few secrets. When something happens everyone soon knows. There are no strangers in the night. So if village leaders have come forward with their own knowledge and "made" people surrender, there must be some weight in that…"

12.	In my view, this situation or scenario is analogous to that.

13.    In this case, the accused did not surrender, rather he admitted or confessed that he had used up the money. When this evidence was brought to light through Police Officer Edes, in my view, the appropriate thing for Defence Counsel to do under those circumstances was to object to its admissibility. Although I later raised it with Defence Counsel when he was cross-examining Police Officer Edes, he maintained the position he took at pre-trialling, that it was not the admissibility of that statement but rather whether the accused was properly identified that was in issue and that this element was not proven. I raised this question with Defense Counsel because the court has a broad discretion to exclude statements if it considers that they were unfairly obtained, that it would be unfair to the accused to admit them, or possibly, if it considers that they should be rejected as a measure of judicial control of the investigation of crime. But such an objection was not before the court, for the court to then call proper submissions on that aspect. Although the Court gave Defence Counsel a second opportunity to raise the issue of admissibility, Counsel preferred not to. As it is, no objections were raised by Defence counsel in relation to a possible breach of s. 42 (2) of the Constitution or any other grounds on the issue of admissibility.

14.    The Court is not obliged to insist that such objection be pursued if that is not counsel’s instructions or that counsel has decided not to take that approach. Counsel may have his or her own reasons for doing that preferring not to take that approach. As it is, the admission is now before me as good evidence. The words by the accused, "I have used up the money" remain good evidence and unchallenged.

15.    This then takes me to the two issues I raised above in relation to a rational inference and the existence of other hypothesis. I address these together with the accused’s evidence. Through Defence Counsel, he said he was threatened and assaulted by the Policemen who went to his house that night. He said after they received the money, they asked for some money, then he was assaulted, tied up and left on the ground whilst the policemen counted the money. But the accused did not tell his lawyer this before I pre-trialled the matter about 3 days ago. If he had, Defence Counsel would have informed the court at the pre-trial stage.

16.    I find that the accused has just made this up. No doubt, he conjured this story when the court briefly adjourned before the commencement of the Defence’s case.

17.    Additionally, if these allegations were fact, his lawyer would have been well aware of them before commencement of trial and upon cross-examination of the State witnesses who were policemen, would have put these facts to them. This did not happen. It is a clear breach of the rule in Browne v Dunn (1893) 6 R 67 (HL). Sevua .J elaborated and expanded on this rule in The State v Simon Ganga [1994] PNGLR 323. Simply put, the essence of this rule is that the accused’s case should be put to the prosecution witnesses in cross-examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain. (See also Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983], NSWLR). This is particularly so where the case relies very much upon inferences to be drawn from other evidence in the proceedings.

18.    Therefore the court is left with the following conclusions;

i.	That the evidence by the accused that he used up most of the money is a rational and reasonable inference of his guilt; and

ii.	There is no other evidence inconsistent with any reasonable hypothesis other than the accused’s guilt.

Conclusion

19.    I find that the accused committed the armed robbery, with one other, on 26th April, 2006, at Wewak. 

20.    I also find that the circumstances of aggravation have been proven.

21.    Therefore I find the accused guilty of the offence of aggravated armed robbery.
_______________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused