Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Tirigau [2021] PGNC 511; N9398 (26 February 2021)

N9398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1639 OF 2016

THE STATE

V

JACK PAURIA TIRIGAU

Kokopo: AJ Suelip
2020: 10^th, 16^th, 25^th November
2021: 26^th February

CRIMINAL LAW – armed robbery – plea of not guilty – evidence – identification evidence – prior knowledge of accused – alibi evidence – consideration of weight of alibi evidence – burden of proof – circumstantial evidence

Cases Cited

Fande Balo v. The Queen [1975] PNGLR 387
John Beng v. State [1977] PNGLR 115
John Jaminan v. State (No.2) [1983] PNGLR 318
Paulus Pawa -v- The State [1981] PNGLR 498
Billy Nara v. State (2007) SC1314

Counsel

J Batil, for the State
N Katosingkalara & S Pitep, for the Accused

VERDICT

26^th February, 2021

1. SUELIP AJ: On 10 November 2020, you, Jack Pauria Tirigau, pleaded not guilty to 2 counts of armed robbery pursuant to section 386(1)(2)(a)(b) of the Criminal Code. It is alleged that you committed the offence on 20 May 2016 at Bitavavar village, Kokopo, East New Britain Province, with threats of violence.

2. You denied the charge and a trial was conducted thereafter.

3. This is my decision on verdict.

Facts

4. The State alleges that on 20 May 2016, between 10pm and 11pm, you were at Bitavavar village in the Kokopo/Vunamami LLG, East New Britain Province. At the said time and place, you were in the company of others who held up Eva Taralulu, the storekeeper of a trade store called Bitalama Trading, You and your accomplices were armed with home made guns.

5. It is alleged that you and your accomplices took from Eva Taralulu the sum of K3,500 cash belonging to Bitalama Trading and another K600 cash and three mobile phones worth K998 belonging to Eva Taralulu. You and your accomplices then fled the scene with the stolen properties.

6. The State alleges that your actions contravened section 386(1) of the Criminal Code in that you used threat of violence against another person and stole properties belonging to other persons and charges you on 2 counts of armed robbery.

7. The State says further that the offence is aggravated further by virtue of section 386(2)(a)(b) of the Criminal Code in that you were in the company of other persons and you were armed with a home made gun which is an offensive and dangerous weapon.

8. The State further invokes section 7 of the Criminal Code in that you aided and abetted others in the commission of the crime.

The offence

9. The offence of armed robbery in section 386(1)(2)(a)(b) of the Criminal Code provides:

386. THE OFFENCE OF ROBBERY.

(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) ...

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

10. The elements for the State to prove beyond reasonable doubt are:

(i) you stole something.

(ii) you were armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or

(iii) you were in company with one or more other persons (Section 386(2)(b));

Issue

11. The issue is one of identification and whether you, whilst armed with a dangerous weapon, and in the company of others, robbed Bitalama Trading and stole cash and properties belonging to other persons?

Evidence by consent

12. By consent, the Court accepted into evidence the following:

Document Exhibit

(i) Your Record of Interview dated 21 June 2016 S1

(ii) Photographs showing general view of the crime scene
from the back S2

(iii) Photograph showing close view of the crime scene S3

(iv) Photograph showing close view of the crime scene
from the back door of the store S4

(v) Photograph of the front and back view of the Alcatel

Pixie phone S5

(v) Statement of Alois Kukup dated 24 May 2016 (lines 7
to 11 showing prior inconsistencies) D1

Summary of the State’s evidence

13. The State called 4 witnesses to prove its case.

14. The first witness is Eva Taralulu. She is the storekeeper and on the day of the robbery, she had just closed shop between 10pm and 11pm. She then balanced the books and packed up the day’s taking along with her personal items and came out through the back door. As she was locking the door, she heard footsteps coming towards her from the banana patch. She saw 6 men. Four of them were armed with home made guns. One of the unarmed men took the day’s takings and her bag containing monies, mobile phones, and other personal effects.

15. She said she could not recognise the men’s faces as they wore masks despite the lighting from the back of the house which shone to the back of the store.

16. In cross examination, she was asked about her white pixie mobile phone stolen during the robbery. She was asked about where she bought the phone which is used by many people in Bitavavar village and she said only a few people use “touch screen” phones as they are unemployed except for the working class. She was also asked if she had conducted a survey to find out how many people in the village own a white pixie mobile phone and she replied, she did not.

17. In re-examination, she was asked if she recognised the phone that was brought to her by her cousin, Jepitah Talele as hers and she said she did because there was a sticker and a game on the phone called “dirty driving”. She said the sticker was removed but the sticker’s mark is still visible on the back of the phone. She also said there were other games on her phone, but those games were no longer there. Defence counsel also asked if that game came with the phone when it was purchased, and she said it did.

18. When asked by the Court as to what the robbers looked like, she said they were all tall and slim.

19. The State’s second witness is Alois Kukup, who is a local and has lived in Batavavar village for 20 years. The witness says at around 10:30pm on the night of the robbery, he had finished work and took a shot cut by the side of Bitalama store to his mother’s house. As he was passing by, he met you and Exon Pinia standing under a coconut tree. He greeted you both but none of you responded. He recognised you because the light from the back of the store shone brightly towards the coconut tree where you and Exon were standing. He said he could identify you because he knew you for about 20 years now. He pointed to you when asked if you are the person, he saw that night. He said he did not see you rob the storekeeper, but he did see you and Exon before the robbery.

20. In cross examination, it was put to the witness that you were elsewhere at the time of the robbery. The witness said he saw you and Exon Pinia when he was taking a short cut by the side of the store to his mother’s house. He repeated that he greeted you both but you two did not respond. He said he did not have a torch and he did not see what you two were wearing. He also did not see you two wearing masks. When asked if there were others apart from you and Exon, he said there were others in the banana patch, but he did not mention that when he was examined in chief. The defence counsel enquired if he was lying when he testified there were only you and Exon whilst in his statement, he said there were others. He replied that he did recognise you and Exon, and he missed out some parts of his story.

21. Defence took issue with the Statement of this witness in lines 7 to 11 where he says you and Exon were talking to him softly as you two thought he was part of your group. This part of evidence was tendered and marked as Exhibit D1 to show prior inconsistencies where he stated there were other suspects on the night, he saw you and Exon but he did not give the same evidence in Court during trial.

22. The State’s third witness is Jepitah Talele. He is the son of the owners of Bitalma Trading. His testimony is that in July 2016 he got a white Pixie mobile phone from your brother, Ruva Tirigau whilst he was asleep. His cousin sister, Eva Taralulu (the storekeeper) recognized it to be her stolen phone as it had the mark of a sticker that was removed. He also said Eva’s description of the robbers fitted you and Exon although Eva could not identify you and Exon because you all wore masks during the robbery.

23. The State’s final witness is Detective Sergeant Ayofa Faregere. This witness is the arresting officer and tendered your Record of Interview (ROI) as part of the State’s evidence. At Question and Answers 37, he said you refused to have your ROI read back to you. He also tendered by consent Exhibits S2 to S4, which exhibits are photographs of the scene of the robbery he took. Defence counsel raised an objection on admitting the ROI into evidence in that you did not read and adopt the ROI nor was the ROI read back to you. Defence relied on the case of Fande Balo v. The Queen [1975] PNGLR 387 where the appeal against conviction and sentence on a charge of attempted rape was on the ground that the record of interview had been wrongly admitted in evidence. After consideration, the ROI was allowed to be admitted into evidence and defence was at liberty to raise its objection in its submission.
Summary of Defence evidence

24. You are the first witness in your defence. You say you only lived in Bitavavar in 2014 and 2015. You said you lived most of your life at your mother’s village in Karavia. You deny knowledge of any of the State witnesses. You said you were with Exon Pinia, Rennie June and Jacklyn Hosea on 20 May 2016 when the robbery took place at Bitavavar village. You said you were all drinking at Kadat Club. You were sure it was on the night of Friday, 20 May 2016 because you said the arresting officer had asked you during the interview, and you recalled that date to be when you and your friends were drinking.

25. In cross examination, you denied being related to any of the State witnesses but agreed that you lived at Bitavavar. You gave evidence that on the night of the alleged robbery you and your friends were drinking at Kadat Club from 9:30pm to 10:30pm before you all went to Vavagil. You were aware of the time as Jacklyn Hosea and Exon Pinia had mobile phones and they continuously checked the time because Jacklyn Hosea had said that you all will go to Vavagil at 11pm.

26. Your only other witness is Rennie June, who supported your alibi. This witness is from Bitavavar and lived all his life there. He remembers 20 May 2016 as it was on a Friday when he was with you, Exon and Jacklyn. He said you were all drinking at Kadat Club from 9:30pm until 11pm. He confirmed that you all then went to Vavagil and thereafter to Kuradui where you drank until 5am before you returned to Bitavavar.

27. In cross examination, the witness said he is your uncle and you have lived in Bitavavar for a long time. He also said he did not give evidence because he felt sorry for you but because you were in his company at the time of the robbery.

Burden of proof

28. The burden of proof rests on the State. The main issue is identification where the State must show that you were the person who committed the robbery to prove the first element of the offence. The only witness who provided a positive identification of you is Alois Kukup, who said he was passing by the side of the store to his mother’s house when he came across you and Exon on the night of the robbery. This witness said the light shone brightly from the back of the store to the coconut tree where you and Exon were standing, and he recognized you both. He recognised you because he has known you now for 20 years. He said good night to you both and when there was no response, he continued on to see his mother. He said he was less than a metre away from you two and the coconut tree nor its shadows obstructed his view from identifying you two.

29. Alois Kukup also said there were a couple of boys amongst the banana patch, but he was unable to recognise them. He never mentioned this when he gave evidence in Court. He only mentioned seeing you and Exon. Further, he did not see you or Exon carrying or wearing any masks, nor did he see either of you carrying any weapons when he greeted you both. Although the defence counsel tried to discredit him in raising prior inconsistencies in Exhibit D1, I do not think that these inconsistences are of any substance. I thought this witness is reliable and he was telling the truth.

30. The shop keeper only described the robbers to be tall and slim. She further said that they were masked and therefore she could not positively identify any of them. The description of being tall and slim can fit anyone, including you. This is a truthful witness who described the events as she saw it happen. Further, it is highly likely that the robbers were from the local area as her phone was found in July and the robbery took place in May.

31. The law on identification is well settled in this jurisdiction. The Supreme Court in John Beng v. State [1977] PNGLR 115 held inter alia, and I quote in part: -

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”...

32. As necessary, I warn myself of the inherent dangers and the need for caution when considering identification evidence.

33. The evidence from Jepita Talele is also circumstantial while the arresting officer’s evidence is primarily on the investigation he conducted. As regards the defence taking issue on the admission of the ROI into evidence on the basis of Fande Balo v. The Queen (supra), that appeal against conviction and sentence on a charge of attempted rape was on the ground that the record of interview had been wrongly admitted in evidence. The Supreme Court in that case held that the ROI had been properly admitted and the conviction and sentence was affirmed. This case does not assist in your defence.

34. You, on the other hand, deny committing the robbery and raise the defence of alibi. In your Notice of Alibi filed belatedly on 4 November 2020, 6 days prior to trial, it is stated that you and Exon Pinia were at Kadat Club with Rennie June, Jonathan Kapa and Jacklyn Hosea. Your only alibi witness is Rennie June, who is your uncle. He said you were with him from 9:30pm on 20 May 2016 until 5am on 21 May 2016. Exon Pinia nor Jacklyn Hosea came forward to support your alibi. There was also no mention of Jonathan Kapa when you or Rennie June gave evidence. I note in your ROI where you said there was another male and a female with you and Exon on the night of the robbery. You did not name the female and the male with you. The male may have been Rennie June, or it may have been someone else. Besides, the ROI was conducted after a month from the robbery and this gives you sufficient time to come up with an alibi.

35. I observed Rennie June at trial and find him not to be a persuasive witness because he only answered questions with general answers of being in your company at the time of the robbery although he was uncertain about some facts like the date you were arrested. When asked by the Court as to why the alibi was not given earlier, he said the lawyers were always busy whenever he went to their office to see them. I do not think this witness is being truthful and I do not believe his evidence in support of your alibi.

36. The Supreme Court in John Jaminan v. State (No.2) [1983] PNGLR 318, stated the principles relating to belated alibi, and I quote in part:-

“... the alibi was delayed or belated and that reduces the weight to be given to it”...

37. As I do not believe your only alibi witness, I give no weight to your alibi.

38. No one gave evidence on what became of the stolen monies. No sum was recovered either. The only stolen item returned is the white Pixie mobile phone which Eva Taralulu recognised to be hers. It was taken from your brother when he was asleep. So, how did your brother come in possession of that mobile phone? No one was called to give evidence in this regard.

39. I do not believe some of the evidence you gave. The first one is this. You said you were from Bitavavar village but lived there for only 2 years, in 2014 and 2015. You said you lived most of your life at Karavia where your mother is from. All the witnesses, both yours and the State’s confirm you have lived most of your life at Bitavavar village. In fact, you returned to Bitavavar after you drank with your mates on 20 May 2016 as you have alleged. This, in my view, is your attempt to distance yourself from the scene of the crime. The other part of your evidence I do not believe is this. You gave evidence that you do not know any of the State witnesses. However, in your ROI you state that Alois Kukup is an uncle. Alois also said he is related to you. Surely, you will have known Alois and vice versa. In the end, I do not find you to be a truthful person.

40. There is no dispute that there was a robbery on 20 May 2016 at Bitavavar village. The storekeeper identified the robbers to be slim and tall, but she could not identify any of you as you all wore masks and 4 of you were armed. All these prove the remaining 2 elements of the offence where you were armed with a dangerous weapon (s386(2)(a)) and you were in the company of others (s386(2)(b)).

41. Only one witness saw you and Exon at the back of the store in the shadows of the trees just prior to the commission of the robbery. This places you at the scene of the crime at the material time.

42. The principles enunciated in the case of Paulus Pawa -v- The State [1981] PNGLR 498 say that failure by a trial judge who sits as a jury to warn himself of the dangers of convicting an accused upon circumstantial evidence and could be fatal and quite dangerous.

43. Again, I must warn myself that it is dangerous to convict on circumstantial evidence “unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”.

44. In Billy Nara v. State (2007) SC1314, it was held inter alia, by the majority that:

“(1) Where a case against an accused person is only circumstantial, he must be acquitted unless his guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of proof beyond any reasonable doubt.”

45. No one saw you commit the offence and can identify you except for Alois Kukup who said he saw you and Exon at the back of the store under a coconut tree at about 10:30pm prior to the commission of the robbery. The one question I have is this. Why would you and your friend be seen standing under a coconut tree at 10:30pm? Surely, you two were not there to climb the coconut tree nor do shopping at the store after it had closed.

46. There was a suspicious gathering at an odd hour at the back of a trade store that closes at 10pm or thereafter, and the only inference I can draw from that scene is that you, your friend, and possibly others committed the robbery.

Finding of facts

47. Having discussed the evidence above, mostly circumstantial and giving no weight to your alibi, I find you, whilst armed with a home made gun and in the company of others stole properties belonging to other persons.

Verdict

48. You are charged with 2 counts of armed robbery contrary to section 386(1)(2)(a)(b) of the Criminal Code and I am satisfied beyond reasonable doubt that the State has proven the elements of the offence alleged to have been committed by you. I am also satisfied that you aided and abetted others in the commission of the offence.

49. Therefore, I find you, Jack Pauria Tirigau guilty of 2 counts of armed robbery as charged.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused