N4467

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 21 OF 2011

THE STATE

V

NAMSON LAMANING

Madang: Cannings J
2011: 2, 3, 16, 17, November, 15 December

CRIMINAL LAW – trial – armed robbery – circumstantial evidence – no identification of accused – Criminal Code, Section 386.

The accused was charged with armed robbery. The State's case was based entirely on circumstantial evidence: that there had been an armed robbery near the harbour, that the robbers made their escape by motorised dinghy, that the police gave hot pursuit, that the police caught up to the dinghy from which three suspects escaped, leaving the accused the only person on the dinghy, that the dinghy belonged to the accused's father and was used as a PMV and that the accused was its regular skipper. The accused gave sworn evidence that he had no involvement in or knowledge of the robbery and that he had taken the dinghy out on the harbour for a test run, that he was by himself and that the motor had stalled when the police shot at him, suspecting him of involvement in the robbery. The defence case also focused on defects in the State's case, particularly the claim that one of the suspects dived overboard and was never seen again and the lack of evidence of items in the dinghy or floating on the sea connecting the dinghy or the accused with the robbery.

Held:

(1)	The principles to apply when a case is dependent on circumstantial evidence are:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
•	to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;

•	the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).

(2)	The key facts were that a robbery took place and the robbers made their escape in a dinghy and that the police followed in hot pursuit and located a dinghy the occupants of which were behaving suspiciously and the accused was the skipper of that dinghy. The only reasonable inference arising from those facts is that the occupants of the dinghy including the accused were involved in the robbery and that the accused had enabled and aided those who actually committed the offence. Accordingly the accused was found guilty by virtue of Sections 7(1)(c) and (d) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
The State v Alphonse Asarombo & Timothy Lokora (2010) N4035
The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

TRIAL

This was the trial of an accused charged with armed robbery.

Counsel

A Kupmain, for the State
A Turi, for the accused

15 December, 2011

1. CANNINGS J: On the morning of Friday 9 May 2009 an armed robbery took place on the street near Bank South Pacific in Madang town. Two employees of Islands Petroleum Ltd were doing a bank run. They arrived in a company vehicle. One stayed in the vehicle. The other walked towards the bank and on the way was held up by three men armed with a knife and a pistol who stole from him a money bag containing K35,436.16 in cash and cheques. The robbers escaped the scene by running across the road and along a lane that runs next to the ANZ Bank to the harbour-side, where they climbed aboard a waiting dinghy that took them out on to the harbour. Some shots were fired but no one was physically injured. A group of police officers on a routine patrol heard the shots and commandeered three motorised dinghies and gave chase across the harbour. Later that morning the police apprehended the accused, Namson Lamaning, a 32-year-old Rai Coast man, in a dinghy, that was floating in the sea off Kranket Island. He was charged with one count of armed robbery under Sections 386(1), (2)(a) and (b) of the Criminal Code. It is the State's case that he was the skipper of the dinghy, which belonged to his father, that he had knowledge of the plan to commit the robbery, that he waited in the dinghy near the ANZ Bank for the robbers to commit the robbery, that he provided them with their means of escape by transporting them in the dinghy, that by doing so he knowingly aided and assisted those who actually committed the offence and that therefore he is guilty of robbery by virtue of Section 7 of the Criminal Code. He pleaded not guilty so a trial has been held.

ISSUES

2. The State presented no direct evidence and rested the case entirely on circumstantial evidence. This means according to the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 that:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable it to draw.

3. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

4. The issues therefore are:

•	What are the proven facts?

•	Do they lead only to the conclusion that, in relation to each accused, he was involved in the robbery?

To make findings of fact it is necessary to first summarise the evidence.

EVIDENCE FOR THE STATE

5. It consisted of the accused's record of interview during which he exercised his right to remain silent, photos and a sketch map of the crime scene and photos of the accused's dinghy, which was impounded by the police for some months after his arrest, a statement by the company employee who remained in the vehicle (who saw little of what happened) a break-up of the cash and cheques that were in the money bag, and oral testimony of four witnesses, three police officers and the company employee who was held up, which is summarised below.

(1)	1st Const Solomon William is a member of the Madang Rapid Response Unit, which was on a routine motorised patrol in town on the morning of the robbery. He and another member of the patrol, Const Dou, went into the post office to do some business and while inside they heard gunshots. Someone ran in and said that there was a robbery and a shootout so they ran outside, got into the police vehicle, which took them to the crime scene where they were told that the robbers had escaped in a dinghy. They went to the yard of Simoi Shipping and approached a skipper and asked him for assistance, so they climbed aboard a motorised dinghy and took off in the direction of Bilia Island, which is where bystanders suggested the robbers' dinghy had headed. They passed a beach and asked people on the beach if they had seen anything suspicious and they said that a dinghy with youths aboard had sped past and that they had heard gunfire and that the dinghy appeared to have run over a reef and might be in difficulty. They then sped towards Kranket Island and noticed that there were two other dinghies with police officers on board also in pursuit of the suspects' dinghy. The three pursuing dinghies converged on a dinghy that was floating on the seaward side of Kranket Island. From a distance of 100 metres he saw that the suspect dinghy had four occupants. Two jumped overboard and swam towards Kranket Island. They are 'well known criminals around Madang town', whose names are Timothy and Abraham. The other two tried to hide inside the dinghy. As they moved closer he shouted an order: "Stand up and surrender!" He knows the accused, Namson Lamaning, and could clearly recognise him. He also recognised the other suspect, a young man called Peter, who is well known to Madang Police. Then Peter dived into the sea, beneath the surface. They lost sight of him and concentrated on apprehending the accused. He was frightened as some shots had been fired in the direction of the suspects to make the suspects surrender. He jumped into the sea, clung to the side of the dinghy but did not resist arrest. They searched the dinghy but found nothing incriminating. They could not locate Peter. The dinghy belongs to the accused's father, who is a former policeman, and is used to convey passengers between Madang town and the Rai Coast.

(2) 	Const Simon Dou is, like 1st Const William, attached to the Madang Rapid Response Unit, and went into the post office with him. His evidence about hearing gunshots and rushing to Simoi Shipping and getting the use of a motorised dinghy was the same as Const William's. He said that Const William was armed with a pump-action shotgun while he was unarmed. They first went to Bilia Island as that is the place that criminals often go if they conduct a robbery in town and make their getaway by sea. They continued along the coastline towards Siar but then turned back and were going past Bilia Island when some of the locals informed them that a suspicious looking boat had been driven over a patch of reef and should be adrift. Then they got a call from their colleagues to say that the suspects' boat had been sighted off Kranket Island, so they headed there and met up with two other dinghies with police officers on board, and had a quick briefing as the suspects were armed. They could then see the suspects' boat drifting in the open sea. His evidence as to the number of occupants and how, first, two of them, and then, a third, jumped into the sea, leaving the accused alone, was the same as the evidence of 1st Const William. He said that the first two to jump into the water were apprehended by other police soon afterwards. They were shot by other police but not fatally. The third one that jumped in went missing and was never found. He confirmed that shots were fired in the direction of the accused and that he eventually jumped into the water but unlike the others stayed clinging to the side of the dinghy.

(3) 	1st Const Obert Lim is another member of the Rapid Response Unit who was on patrol with 1st Const William and Const Dou on the morning of the robbery. He waited outside while they went inside the post office. He heard rapid gunshots and ran towards the spot. He saw a dinghy speeding towards Bilia Island, then quickly asked one of the local boat operators, Sam Aloi, with a 60-hp motorised dinghy, to help him give chase. They followed the suspects' dinghy in the direction of Bilia Island and then lost sight of it and looked for it around Ulifon Island and Pig Island. They picked up information from locals in the area and eventually caught up with the suspects' boat near Kranket Island, where it seemed to have made a sudden stop. There were four men on board. He did not want to get too close too quickly as he thought that the suspects were armed and he was conscious of the fact that he was with a civilian. He saw two suspects jump into the water, leaving two on board and one of them was trying to start the motor, pulling the rope but it wouldn't start. His boat was joined by two others. First Const William and Const Dou were on one and Chief Sgt Demok of the Dog unit and other police were on the other one. There was a quick briefing, then he saw another suspect jump into the water from their dinghy. He went after the two who had jumped in first: Timothy Walapai and Abraham Benedict. He got them 50 metres from the suspects' dinghy. They resisted arrest and were aggressive. They tried to pull him into the water when he went close to them so he shot them in the legs while they were in the water. This disabled them and he dragged them into his dinghy and took them back to the suspects' boat, which could not be started so it was towed back to town and they made landfall at Madang Resort. Walapai and Benedict were charged with this robbery but have absconded and bench warrants are out for their arrest. The accused is very well known to Madang Police as he is a suspect in another robbery. As soon as they came near the suspects' boat he could clearly see that one of the occupants was Namson Lamaning. He is sure that there were four people in the accused's boat.

(4) 	Wayne Otoa is the Islands Petroleum employee who was taking the money bag from the company vehicle to the bank when he was held up. He said that three men held him up. One tried to slice him with a knife. He resisted at first but then he saw that the two others had pistols so he gave them the bag and they ran off along the lane next to ANZ Bank. He ran after them and got within 20 metres but then they turned around and pointed the pistols at him so he stopped chasing them and just stood still and watched them get on the boat that was waiting for them and take off.

That was the evidence for the State.

EVIDENCE FOR THE DEFENCE

6. The accused gave sworn evidence and there was one other defence witness.

(1) 	The accused, Namson Lamaning, is from Kwil village in the Rai Coast District. He runs a regular passenger transport service, using his father's dinghy, powered by a Yamaha 40-hp motor, between Madang town and Rai Coast. On Friday 1 May 2009 he left Kwil at 7.00 am and arrived at the Rai Coast boat-stop at the Madang Club at 9.00 am. He got a bus to Redscar, in Madang town, to look for lawnmower spare parts to take to the village. He met Peter Manda, aka Peter Mero, who was waiting for a bus. He went back to the boat-stop. He collected some fares from passengers then took the boat out on the harbour to test the motor as it had been making an abnormal noise on the trip from Kwil that morning. He intended to take it to a mechanic if there was still a problem. He drove to the passage between Pig Island and Kranket Island. No one was with him. It was sunny weather. The sea was calm. The motor stopped. He removed the cover and was checking the motor, drifting, looking out for help for 20 or 30 minutes. There were no other boats around. All of a sudden three boats approached. One boat came quickly at him then someone on one of the other boats started shooting at him. He also heard gunshots coming from the third boat. On the boat that was coming quickly a policeman stood up and shouted at him "Upim arm!" There were bullets hitting the boat and the fuel tank so he jumped overboard and clung to the side-deck. A policeman boarded his (the accused's) boat and pointed a gun at him and ordered him into one of the police boats. He did as he was told. He got into the police boat and observed two men who had been shot and were bleeding. One was naked. He tried to explain to one of the policemen in that boat, Const Obert Lim, what his problem was, but he would not listen and just swore at him and threatened to shoot him if he didn't shut up. One of the crew on Const Lim's boat got in to his (the accused's) boat but the motor would not start so it was towed back to Madang Resort. He was taken to Jomba police station where he was assaulted by the police. He knew nothing about any robbery until hearing about it at the police station. He knows nothing about being a suspect in other robberies in Madang. He has no idea why the police would regard him as a suspect.

7. In cross-examination he could not recall when the motor had last been taken to a mechanic for service. They take it to a private mechanic, Geyer. He denied all knowledge of the robbery. He did not park his boat at ANZ Bank. He reiterated that he was by himself when he took his boat for a test run. He was still by himself when shot at by the police. Peter was not there. If he was there the police would have found him. He would have had to come up for air. The sea was calm. There were three police boats.

(2) 	Geyer Sam is the motor mechanic referred to in the accused's evidence. He worked on the motor on the accused's father's boat in May 2009. He reset the pistons, bearings and con-rod. Improper mix of fuel and oil had cooked the engine components. He saw no sign of the propeller having hit a reef or any hard object. If anything like that had happened the driveshaft would be broken or show clear signs of damage. Shown photos of the dinghy taken soon after it was impounded by the police he observed that the cavitation plate was intact. (The cavitation plate is the horizontal plate on the vertical shaft of the outboard, above the propeller, which prevents cavitation: rapid formation and collapse of vapour pockets, leading to pitting and structural damage to the propeller.) This also suggested that the problems with the motor were not caused by it hitting a reef. He most recently overhauled the motor in May this year, when it had the same problem as in 2009.

That was the evidence for the defence.

WHAT ARE THE PROVEN FACTS?

8. I find that the following facts have been proven.

1	Armed robbery on the morning of 1 May 2009

9. The fact that the robbery took place and the details of how it was committed are not in dispute. Two employees of Islands Petroleum Ltd were doing a bank run. They arrived in a company vehicle. One stayed in the vehicle. The other, Wayne Otoa, walked towards the bank and on the way was held up by three men armed with a knife and two pistols who stole from him a money bag containing K35,436.16 in cash and cheques. Mr Otoa did not get a good look at the faces of those who held him up. The offence of robbery under Section 386(1) of the Criminal Code was committed by those three men in that they stole the money and threatened to use actual violence to a person in order to obtain the money immediately before stealing it. The offence was committed in circumstances of aggravation under Section 386(2)(a) and (b) of the Criminal Code in that the offenders were armed and in company with each other (The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012).

2	Offenders escaped scene in a motorised dinghy

10. The manner in which the offenders escaped the scene of the robbery is also not in dispute. They ran across the road and along a lane that runs next to the ANZ Bank to the harbour-side, where they climbed aboard a waiting dinghy that took them out on to the harbour.

3	Police gave chase

11. The police gave chase in three motorised dinghies. First Const Solomon William and Const Simon Dou of the Madang Rapid Response Unit, who had been in Madang Post Office when they heard gunshots and were alerted to the robbery, went to Simoi Shipping and quickly got the use of one dinghy. First Const Obert Lim, another member of the Rapid Response Unit, got the use of another one. A member of the Dog Squad got the use of another. The three police boats went in search of the getaway dinghy, taking different routes around the nearby islands and passages, acting on information received along the way from local villagers.

4	The police chase led them to a dinghy floating on the seaward side of Kranket Island

12. Later that morning the three dinghies with police on board converged on a dinghy that had stalled and was drifting on the seaward side of Kranket Island. This was the accused's dinghy. This was the only motorised dinghy in the vicinity. It was suspected, with good reason, by the police, to be the dinghy on which those who committed the robbery had escaped.

13. I reject the accused's evidence that he was the sole occupant and that he had taken the dinghy out for a test run by himself. There was no corroboration of his story about having engine problems earlier that morning. Corroboration was not essential but the absence of corroboration made the story hard to believe. Surely if his story were true it would have been easy to arrange for one of the passengers on that morning trip to come to court to give evidence to verify this claim. The same goes for the claim that he took fares from passengers at the Rai Coast boat-stop. Wouldn't he have told them that their departure might be delayed by engine problems? His evidence about going to Redscar to look for lawnmower parts and bumping into Petes Mero (Peter Manda) was bizarre. Most importantly, the accused was just not an impressive witness. His demeanour was poor. I much prefer the evidence of First Const William, Const Dou and First Const Lim, which was consistent and credible, that there were three other men on board the accused's dinghy. The police boats moved in on the accused's dinghy and as they did so two of the men dived overboard. Shots were fired by the police in the direction of the accused's boat. Another man dived overboard, leaving the accused as the sole occupant. He jumped overboard as the police got closer and shots started hitting the boat. He was frightened and did not offer resistance and was apprehended and got into one of the police boats.

14. The first two men to dive overboard were Timothy Walapai and Abraham Benedict. They were caught in the water 50 metres from the accused's boat, while trying to swim to Kranket Island. First Const Lim shot them in the legs, in the water, as they resisted arrest. They were brought back to where the other boats were.

15. The last man to dive overboard was Peter Manda. He was never found but is believed to be still alive. He escaped. The defence counsel, Ms Turi, submitted that Manda would have had to be a better swimmer than Ryan Pini to get out of that situation, so the police evidence was too incredible to believe. However, I have assessed the demeanour of the police witnesses and the way in which they told the story of Manda getting away. They seemed embarrassed that they had allowed him to elude them. As stated above the police witnesses generally appeared to be giving truthful evidence. It is also relevant that the police were faced with three simultaneous targets, the accused, plus the two who dived overboard first, plus Manda. This helps to make the story of Manda escaping more believable.

16. The accused and the other three occupants of his dinghy were recognised by the police as they have been at various times suspected of involvement in criminal activities in Madang town. I have considered the risk, highlighted by Ms Turi, that the police witnesses were giving fabricated evidence in order to ensure the conviction of the accused; someone that have been trying to pin something on for some time. My favourable assessment of the honesty of the police witnesses makes that risk minimal.

17. The manner in which the other occupants of the accused's dinghy behaved, and the manner in which he behaved, when confronted by the police, strongly suggest that they were not innocent boatpeople who happened to be in the wrong place at the wrong time. They knew that they were being chased. The accused's passengers were the three men who had committed the robbery in town.

5	Reason the dinghy stalled

18. I find that the accused's dinghy stalled due to an engine problem, not because it ran over a reef or hit another hard object. This is borne out by the evidence of the mechanic, Geyer Sam, who found no evidence of damage to the propeller or crankshaft when he overhauled the motor in 2009 and whose observations of the photos of the motor taken soon after the robbery revealed no sign of structural damage.

6	No items seized in the dinghy

19. There was nothing in the accused's dinghy connecting him or the other three men to the robbery. Nothing like weapons or masks or other apparel that might be used in a robbery was found. Nothing suspicious, such as cash notes or cheques or the money bag, was floating on the water. Neither the accused nor any of the other three men had anything on them connecting them to the robbery. In this regard the proven facts are in contrast to those in The State v Alphonse Asarombo & Timothy Lokora (2010) N4035, another Madang robbery case in which the getaway vehicle was a motorised dinghy and the accused (who were convicted on circumstantial evidence) were caught by police in the dinghy; the difference being that guns and balaclavas were in the dinghy.

DO THE PROVEN FACTS LEAD ONLY TO THE CONCLUSION THAT THE ACCUSED WAS INVOLVED IN THE ROBBERY?

20. The defence counsel, Ms Turi, submits that the answer to this question is no, as there are too many gaps in the State's case. The accused gave a credible explanation for being out in the sea and he just was in the wrong place at the wrong time, as he had stalled the engine while on his test run when the police came along and wrongly suspected him of being the driver of the getaway vehicle. There is no evidence that the dinghy used by the offenders was powered by a 40-hp Yamaha. Even if the evidence of the police witnesses about there being three other men with the accused is accepted, there is no evidence linking those three with the robbery. The mysterious disappearance of suspect Peter Manda has never been resolved. Nothing was found on the accused or on the two who were shot or in the boat or in the water that implicates them.

21. I have carefully considered the defence counsel's submissions, the strongest of which is that there was nothing found on the accused or the other two who were apprehended or in the boat or in the water that implicates them. But their weapons may have been discarded. Pistols and a knife would sink easily. That was all that they needed to commit the robbery. The money bag may be at the bottom of the sea. The absence of such evidence does not, in my view, defeat the natural inference arising from the proven facts that the three men who were in the accused's dinghy were the three men who actually committed the robbery and that the accused had knowingly provided them with a getaway vehicle. I conclude that:

•	as per the test in Devlyn David's case: the proven facts lead reasonably to only one conclusion: that the accused had knowledge of and was willingly involved in the robbery; and

•	as per the test in Paulus Pawa's case: the guilt of the accused is the only rational inference that can be drawn from the proven facts, and the proven facts are inconsistent with any reasonable hypothesis other than the guilt of the accused.

22. I find it proven beyond reasonable doubt that the accused did acts, viz providing and driving a getaway vehicle, for the purpose of aiding and enabling Abraham Benedict, Peter Manda and Timothy Walapai to commit the offence of armed robbery, and that he is deemed under Section 7(1)(b) and (c) of the Criminal Code to have taken part in committing that offence and to be guilty of it.

VERDICT

23. Namson Lamaning is found guilty of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a) and (b) of the Criminal Code.

Verdict accordingly.
____________________________

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