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State v Funil (No 1) [2021] PGNC 668; N9909 (2 November 2021)

N9909

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 50 OF 2018

THE STATE

V

ROBINSON FUNIL
(NO 1)

Kokopo/Kerevat: Suelip AJ
2021: 23^rd, 30^th September & 2^nd November

CRIMINAL LAW – verdict – trial – no documentary evidence – oral testimonies – identification – prior knowledge of accused – alibi evidence – burden of proof – guilty

Cases Cited

John Jaminan v. The State (No.2) [1983] PNGLR 318

Counsel

T Kametan, for the State
S Pitep, for the Accused

VERDICT

2^nd November, 2021

1. SUELIP AJ: On 23 September 2021, the accused pleaded not guilty to the charge of attempted robbery pursuant to section 387(1)(a)(2)(a)(b) of the Criminal Code. This resulted in a trial being conducted thereafter.

2. This is my decision on verdict.

Alleged facts

3. The allegations against the accused are these. On the 30 August 2017 between 8am and 11am, the accused in the company of others armed themselves with home-made gun and bush knives, entered the Kadakakao Cocoa Buying Point at the Kereba Block, past Kerevat Town in the East New Britain Province. It is alleged that when his group entered the premises, he was armed with a home-made gun and his brother Wilson Funil was armed with a bush knife. It is also alleged that Robin Amos, Jeffery Vulia, Enoch Coleman, Anton Kilala and others were in the premises when they saw his group approach and they ran from the premises. It is further alleged that one of the group members namely Wilson Funil chased Robin Amos and assaulted him and demanded for the money while the accused held the home-made gun in front of the premises and the others searched the warehouse for the money. However, they did not get the money and they swore at the employees and ran away. The State alleges that actions of the accused contravened section 387(1)(a)(2)(a)(b) of the Criminal Code. The State also invokes section 7 of the Criminal Code.

The law

4. Section 387(1)(a)(2)(a)(b) of the Criminal Code says: -

387. ATTEMPTED ROBBERY ACCOMPANIED BY WOUNDING, OR IN COMPANY.

(1) A person who assaults a person with intent to steal any thing, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order–

(a) to obtain the thing intended to be stolen; or

(b) to prevent or overcome resistance to its being stolen, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender–

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

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

he is liable to imprisonment for a term not exceeding 14 years.

Issue

5. The issue is whether the accused was involved with others, in committing the attempted robbery?

6. No documentary evidence was tendered by the State and so witnesses from both the prosecution and defence were called to give oral testimonies.

State witnesses

(a) Anton Kilala

7. This witness was at the scene of the attempted robbery at the material time. He had gone to get the tires of his PMV bus fixed at a workshop next to the cocoa buying point. He heard swearing and then he saw the workers of the depot run pass him. He saw the accused wearing a mask and holding a gun while waiting for his friends to go into the depot. He can recognise the accused from his dressing and his built. He can differentiate between the accused and his brother Wilson because the former is slim and tall whilst the latter is s short and dark. He can also identify the voice of the accused as he has known him for about 10 years now and he passes the house of the accused every day. He stood about 15 meters away from the accused that day and can recognize him clearly. When Jeffrey Vulia approached him after the incident and enquired if the accused was the person standing and holding the gun in front of the depot, this witness confirmed that it was in deed the accused. This is an impressive witness who was confident and gave evidence of what he saw and heard that day.

(b) Jeffrey Vulia

8. This witness was employed by the Cocoa Board as a surveillance officer. He was with Robin Amos and others when the accused and his gang entered the premises. He said he recognized voice of the accused because they all live in the same area. He noticed the brother of the accused, Wilson holding a tramontina bush knife which he tried to cut Robin Amos with. This witness told Wilson to go get the money in the shed in fear of Robin Amos being cut. He was also standing about 10-15 meters away from the accused and could easily recognize his voice. He saw the accused holding a pipe but is not sure whether it was a gun. This is also an impressive witness whose only uncertainty was the weapon the accused held in his hand that day as he was unsure whether it was a gun or a pipe.

(c) Robin Amos

9. This is the witness that was threatened by the person who was holding a bush knife. He was chased down to the main road and along the way, he stumbled twice. That was when the armed person demanded for money and stole his bilum. He only recognized the armed man to be tall. This witness does not recognize any of the gang including the one who chased him.

Defence and evidence

10. The accused raised his defence of alibi. He said on the day of the attempted robbery, he left early at 6am to go to his garden. He said he attended to covering his tobacco in the garden from sunlight. After that, he said he stayed on in the garden until 3pm when he returned home and found his house burnt down by the police. He said he saw no one that day and vice versa. He denied knowing Anton Kilala or any of the State witnesses. He said he has been in trouble with the law before. All these raises suspicions as to whether he is telling the truth. He also said he is married but his wife was not with him that day, nor did she know he was in his garden that day as she was at Malaguna. His wife was not called to support what he said or confirm her absence that day. There are doubts and suspicions in the evidence he gave. I do not think he was telling the truth.

(a) Wilson Funil

11. This is the older brother of the prisoner, and he is currently serving time for the same charge. He denies the prisoner was involved. He said he committed the offence with four of his friends of whom, two are Tolais and two are from Sepik. He said he never saw the prisoner that day and he would have been at home or at his garden. None of his other gang members came forward to confirm the non-involvement of the accused. It appears that the brother is only trying to protect the prisoner when he gave evidence in his younger brother’s defence. He failed to impress me with his evidence.

Burden of proof

12. The burden of proof rests on the State to prove beyond reasonable doubt that the accused committed the offence. To prove its case, the State must prove each element of the offence. The elements are:

(i) a person who assaults another person
(ii) with intent to steal anything

(iii) at immediately before or after the assault uses or threatens to use violence
(iv) to any person or property
(v) in order to obtain the thing intended to be stolen

13. The State must also prove circumstances of aggravation pursuant to section 387(2) where the offender is: -

(i) armed with dangerous or offensive weapon or instrument
(ii) in the company of one or more other persons

14. Two of the State witnesses say it was the accused who was holding a gun and keeping watch while the rest of his accomplices entered the depot to demand for money. They recognized the voice of the accused and can identify him from his dressing that day. Further, the silhouette of the person holding the gun fits his description. Secondly, there was intention to steal as the gang demanded for money right from the start. To prove the third and fourth elements, the prisoner and his accomplices were armed with offensive weapons where immediately before the assault, they threatened to use violence on the workers of the depot. The fifth element is proven when it is the prisoner’s and his gang’s our sole intention to steal money from the depot.

15. The circumstances of aggravation are easily made out as the prisoner was armed and in the company of others. Thus, all elements of the offence are satisfied.

16. As to the prisoner’s defence of alibi, I refer to the case cited by the State in its submission where Amet J in John Jaminan v. The State (No.2) [1983] PNGLR 318, expressed the following:

“How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If the evidence is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused”.

17. There is overwhelming evidence from the State to show that although the prisoner covered his face, the witnesses recognized his voice and can identify him from his dressing. They also say the silhouette of the person holding the gun fitted his body description.

18. Further, there is no one else to corroborate the prisoner’s alibi evidence apart from his brother who is currently serving time for the same charge. No one saw the prisoner in his garden that day. There is a lot of doubt as to where he really was at the time the attempted robbery took place. This is unbelievable as everyone in a small rural setting will be familiar with each other. Also, his brother’s accomplices did not come forward to give evidence to prove the prisoner was not part of the gang. I am therefore satisfied that all were acting together, and pursuant to section 7 of the Criminal Code, are equally responsible for committing the offence of attempted robbery.

19. I find that the prisoner was involved with his brother and others in the attempted robbery. I also find that he was holding a gun at the entrance of the depot and keeping watch while his accomplices, who were also armed, went in to demand for money. There is no evidence to prove that he was in his garden that day. I am therefore satisfied beyond reasonable doubt that he is guilty of attempted robbery.

Verdict

20. Guilty of the charge of attempted robbery.

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