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State v Sakumai [2022] PGNC 118; N9533 (30 March 2022)

N9533

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 636 OF 2019

BETWEEN:
THE STATE

AND:
JUNIOR STEVEN SAKUMAI

Wewak: Rei, AJ
2022: 2^nd, 8^th, 9^th, 14^th, 15^th, 27^th February & 30^th March

CRIMINAL LAW – Aggravated armed robbery – driver of a vehicle involved – compulsion - police uniform worn by unknown suspects – supplied by principal offender - robbing of MiBank Ltd – accused unarmed – guns pointed at accused to obey orders given by suspects – whether accused participated – no arrest of persons actively involved in crime – verdict of guilty.

Cases Cited:

Papua New Guinean Cases

R -v- Ulel [1973] PNGLR 354
R -v- Yeka Kiok [1970] N607
The State -v- Hayala [2009] PGNC 139; N3774
The State -v- Tom Morris [1981] PNGLR 493

Overseas Cases

Momote Kulang of Tamagot -v- The Queen [1964] HCA 21; [1964] 111 CLR 62
Peacock -v- The King [1911] HCA 66; (1911) 13 CLR 619, 634
Miles Jupheed Barca -v- The Queen [1933] HCA 50; (1976) 50 CLR 108
Plomp -v- The Queen [1963] HCA 44; (1963) 110 CLR 234, 252
Thomas -v- The Queen [1960] HCA 2; (1960) 102 CLR 584, 605-606

Legislation:

Criminal Code Section 386(1) and (2) (d), Section 7(1) (b) & (c),
Section 24(2), Section 25

Counsel:

Ms. T. Aihi, for the State
Mr. A. Kana, for the Accused

DECISION ON VERDICT

30^th March, 2022

1. REI AJ: The State alleges that the accused Junior Steven Sakumai, aka Steven Junior Sakumai, in the company of others stole the sum of K21,000 from Joseph Suat and others which is the property of MiBank.
   
2. The said charge was laid under Section 386(1) and (2) of the Criminal Code which provides that:
   

“Section 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) 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 death for life.”

3. The State also invoked Section 7 (1) (b) & (c) of the Criminal Code and says that the accused did aid and abet others to steal the sum of K21,000 from Joseph Suat and others which is the property of MiBank.
   
4. The charge as laid reads:
   

“Junior Steven Sakumai also known as Steven Sakumai Junior of Pario Village, Baluan Island, Manus Province stands charged that he on the 6^th day of November 2017 with others at Wewak Town in Papua New Guinea, stole from Joseph Suat and others cash money in the sum of Twenty One Thousand Kina the property of MiBank.”

5. The emphasis in the charge is: “... stole from Joseph Suat and others cash money in the sum of K21,000 the property of MiBank.”
   
6. In her opening submissions Ms. T. Aihi made comments that the defence of compulsion under Section 32 of the Criminal Code would be relied on by the defence.
   
7. This was confirmed by Mr. A. Kana in his submissions and the questions asked in examination in chief and cross examination.
   
8. However, at the close of the case it was conceded by Counsels that this defense be aborted as it does not apply where offences including the sentence of death is preferred. Section 386 of the Criminal Code includes, a sentence of life subject to Section 19 thereof.
   

ARRAIGNMENT

9. The charge of armed robbery as well as the brief facts of the matter were read out to the accused on 7^th February 2022.
   
10. When asked how he pleads to the charge, the accused entered a plea of not guilty. Mr. A. Kana for the accused submitted that the plea was consistent with his instructions.
    
11. The following documents were tendered by consent of Counsel:
    

STATE WITNESSES

12. The State called three (3) witnesses who gave oral testimony.
    
13. The first witness called was Sam Logos who is the owner of the motor vehicle registered WAD 638 a blue 10 seater Toyota Land Cruiser which was allegedly used in the armed robbery. He owns a hire car company called Origins Hire & Logistics Transport Service, Wewak ESP.
    
14. This witness stated that he had known Junior Steven Sakumai as a mechanic and on the morning of 6^th November 2017, the witness called him to go to his home to take the vehicle and fix the left hand door as the window glass was not operating.
    
15. The accused did comply and did carry out the necessary mechanical repair to the vehicle.
    
16. This witness did not see what happened and was unable to assist the Court as to what happened to the vehicle later on in the day. He only came to know of what happened some two (2) weeks after the incident.
    
17. The next State witness is Joseph Suat who was an officer of the Bank at the time the alleged robbery took place.
    
18. He gave evidence that he had known the accused for quite some time as they live in the same area and are neighbours.
    
19. He then gave evidence that he was picked up in Wewak Town on 6^th November 2018 and taken to MiBank where he met the Bank Manager and the Assistant Bank Manager from whom the alleged sum of K21,000 was stolen by the gang members whom he said were driven to the Bank by the accused.
    
20. He did say in evidence he did not give the alleged sum of K21,000 to the gang members.
    
21. He stated that all the members of the gang including the accused were wearing police uniforms. The accused, however, denied he was wearing any police uniform and was wearing a black “T” shirt and a six pocket trousers. He was in those clothes throughout the trial of the matter.
    
22. He was asked in cross examination whether he can produce a Statement of account from MiBank Ltd giving details of the loss of K21,000.00. He said he was not in a position to do so as it was the duty of the acting Bank Manager Cosby Selun and/or the Assistant Bank Manager Jane Anguai.
    
23. The third witness called to give evidence is Reuben Seregen who gave evidence that he is the investigating officer. He gave evidence as to how he apprehended the accused and others and further how he retrieved the alleged weapons and vehicle used in the alleged robbery. He stated that property stolen from MiBank was cash money in the sum of K21,000.00. This property was never recovered during the investigation or any time after.
    
24. He impounded the vehicle allegedly used in the robbery and apprehended co-accused David Rawlos from whom he retrieved the firearms used in the alleged robbery. Further that he arrested the accused whom after coming to his senses surrendered to the police upon returning from Port Moresby.
    

DEFENCE WITNESS

25. The defence called the accused who gave evidence on his own behalf. No other witness was called.
    
26. The accused stated that after the incident he went to Port Moresby and stayed for 2 weeks and upon his return he voluntarily reported to the Police and explained himself whereupon he was arrested and charged with the offence of armed robbery.
    
27. His evidence of his alleged involvement in the incident is that he did get the vehicle belonging to Sam Logos and did carry out the necessary repairs and at about 9 am on the 6^th of November, a David Rawlos called at his house and asked him to escort him to Boram Airport to pick up his brother who was coming to Wewak from Lae. He stated that he did call Mr. Sam Logos the owner of the vehicle and asked him for leave to so use the vehicle. This was granted.
    
28. Because the accused knew David Rawlos he thought the request was genuine therefore he agreed to go to the airport with him. However, when they arrived at the airport David Rawlos directed him to drive to a place called Water Board.
    
29. From his evidence, Water Board is the place where the water supply system for Wewak Town is located and from where water is reticulated to Wewak Town.
    
30. It was at that place that 5 other people emerged from a vehicle whom he said he had never met before and had not known them. This vehicle had been closely following him and David Rawlos in the Blue Ten Seater Toyota Land Cruiser registration WAD 638.
    
31. They stopped at Water Board and he noticed David Rawlos produce police uniforms and gave them to the other people who were there who changed the clothes they were wearing and attired themselves with Police uniforms supplied by David Rawlos.
    
32. The accused became suspicious of this and believed that a strange thing was happening. He tried to escape but was held under gun point and told to remain silent and to carry out instructions as directed by the leader as he could lose his life should he disobey.
    
33. He confirmed the evidence of Joseph Suat that he drove into Wewak Town, picked him up and went to MiBank where the alleged armed robbery took place.
    
34. He repeatedly stated that he remained in the vehicle at all times under gun point until the whole episode came to an end. He also repeatedly stated in evidence in chief and cross examination that he did not and was not wearing police uniform at all material times and that he wore a black “T” shirt and a six pocket trousers which he wore when he came to court.
    

ISSUE

35. The issue therefore is not of identification The State -v- Hayala [2009] PGNC 139; N3774 (28 August 2009) but of participation. Did the accused know of the fact that robbery was to take place? Was he part of the planning of the robbery? Did he actually or in fact take part? Did he aid and abet in the crime?
    
36. Whether the evidence that the sum of K21,000 as stolen from the witness John Suat which is the property of MiBank. If so, whether he was in physical possession of that amount, and was robbed from him on 6^th November 2018.
    
37. In my considered view, these are questions of fact should be weighed out from the evidence given in Court.
    

DECISION

38. There is no doubt the accused was with the group who went and allegedly robbed the bank therefore identification of the presence of the accused at the scene is not in issue.
    
39. There is also no doubt that the cash of K21,000.00 was allegedly handed over to the gang; not by Joseph Suat, but by the Bank Manager and the Assistant Bank Manager. They were both not called by the State to testify whom they gave the alleged sum of money to and the circumstances thereto.
    
40. There is also no dispute that the alleged sum of money stolen from the MiBank belong to MiBank and not Joseph Suat and others who would have to be the Bank Manager and/or the Assistant Bank Manager. This is clearly said in the indictment for other it reads in part “... stole from Joseph Suat AND OTHERS cash in the sum of K21,000 property of MiBank.”
    
41. The Bank Manager or Assistant Bank Manager were and are officers of the MiBank who have authority to deal with cash in any manner prescribed by law. Although their names are not specifically mentioned in the indictment, the words “others” include and refer to them as officers of MiBank.
    
42. The only fact that is in dispute is whether the presence of the accused in the scene of the crime amounts to participation as provided for under Section 7 of the Criminal Code.
    
43. The evidence is quite clear that the first witness who gave evidence for and on behalf of the State, a Joseph Suat, stated that he has known the accused as a neighbour and as a friend for a long time.
    
44. Although he stated that the accused wore police uniforms supplied by the group, I cannot find credibility in this evidence in that he was clearly not confident in the witness box when he gave this piece of evidence. He agreed that the accused remained in the vehicle throughout the whole incident.
    
45. Weighing his such admission in court against the evidence given by the accused, I am convinced the accused did not wear any police uniform.
    
46. Furthermore, the accused did say in examination in chief and cross examination that he was so scared throughout the whole ordeal that he could not even look around or utter any word as doing so would imperil his own life. Most importantly, he did say in evidence that he had not met the group of men before except David Rawlos whom he met only a month ago.
    
47. He also stated in his evidence that the Police did not go out and hunt him to be arrested. He said he surrendered to the Police and that it was upon his surrender that he was arrested.
    
48. I have observed that none of the other accomplices were arrested except David Rawlos who is said to have been shot dead.
    
49. If I am to give face value to the evidence given in Court, I would seemingly be arriving at a false or a make shift conclusion as there are circumstantial evidences which point me to a different conclusion.
    
50. The accused was asked to drive David Rawlos to Wewak Airport to pick up his brother. The accused was given permission to do so by way of telephone call.
    
51. But when they arrived, he was directed to drive on and to go to Water Board for whatever reason.
    
52. The accused did not give evidence that he then called Sam Logos the owner of the hire car again to seek further permission for him to use the vehicle to go the extra mile to Water Board.
    
53. At that point in time, the vehicle was being used as a stolen vehicle, as being used by the accused without any lawful authority of the owner.
    
54. Further, when the accused and David Rawlos arrived at Water Board, it was noticed the change of attire from ordinary civil clothes to police unforms.
    
55. This should have, and I am sure the accused was convinced beyond reasonable doubt that something wrong was happening and should have taken precautionary measures.
    
56. Yet he did not and continued to listen to David Rawlos and his accomplices by driving them to Wewak Town, picking up Joseph Suat and going to the MiBank and eventually “... stole from Joseph Suat and others cash money of K21,000.00 property belonging to MiBank” as is pleaded in the indictment.
    
57. The accused said he was scared for his life and safety therefore he could not do anything. But MiBank is situated in an open space in Wewak Town and towns people were there aplenty who could have assisted had he taken precautionary measures.
    
58. Instead, he waited patiently in the vehicle until the whole incident had happened and safely took the accomplices to where they sought refuge after their loot.
    
59. If he is not a party to the offence as provided under Section 7(1) (a) & (b) of the Criminal Code, why did he not report the matter to the Police immediately but ran away to Port Moresby and some two (2) weeks later he surrendered and reported?
    
60. These circumstantial evidences point me to the conclusion that the accused was fully aware of what had happened. He appreciated the dangers involved including being arrested by the Police and dealt with. Yet he volunteered to take the risk to be involved in the entire episode from his house, to the airport, to Water Board, to Wewak Town, then picking up Joseph Suat and then to the MiBank where they stole from Joseph Suat and others cash sum of K21,00.00 property belonging to MiBank.
    
61. It is unsafe for the Court to rely solely on circumstantial evidence to convict. A firm conclusion should be drawn from the evidence that there is clear and unambiguous evidence of participation ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.’ Peacock -v- The King [1911] HCA 66; [1911] 13 CLR 619, 634.
    
62. The principle involving circumstantial evidence has been clearly stated in the case of The State -v- Tom Morris [1981] PNGLR 493 in which Miles J citing Barca -v- The Queen [1933] HCA 50; [1976] 50 CLR 108 said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock -v- The King [1911] HCA 66; [1911] 13 CLR 619, 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp -v- The Queen [1963] HCA 44; [1963] 110 CLR 234, 252. See also Thomas -v- The Queen [1960] HCA 2; [1960] 102 CLR 584, 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock -v- The King, 661. These principles are well settled in Australia.”

63. In this case, the evidence against the accused is not wholly or in its entirety dependent upon circumstantial evidence for reasons that he was fully aware of what was then taking place right in his eyes and yet he said he took no steps to avoid it. To make matters worst for himself, he did not report the incident to the Police until 2 weeks later upon his return from Port Moresby. He was in the vehicle all that time. He was seen and sighted.
    
64. In his submission made on behalf of the accused, Mr. Kana said and I quote:

“Out of honest mistaken belief he agreed to offer assistance and out of ignorance thereafter he was coerced, forced and threatened to execute and to carry out their orders or directions, although the Defence of Justification by Compulsion does not apply due to the amendments to Criminal Code Act in 2013, however the accused should be given every opportunity to raise such defence given the policy consideration on the issue of death penalty and recent amendments repealing the law on death penalty which is yet to be certified.”

65. Although this submission does not rely on Sec.25 of the Criminal Code which provides for “Mistake of facts” it appears to be the gist of it. It is in the following terms:
    

“(1) Subject to Subsection (2) a person who does or omits to do an act under an honest or reasonable, but mistaken, belief in the existence of any state of things is NOT criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to be

66. I am convinced beyond reasonable doubt that the accused was fully aware of what then unfolded given the circumstantial evidences I have drawn my attention to.
    
67. The only evidence that is inconsistent here is the evidence of police uniforms. But that should not discard the other evidence of identification given by Joseph Suat so that his entire evidence be thrown overboard like flotsam of some shipwreck in the middle of the ocean.
    
68. The Bank Manager and Assistant Bank Manager did not give evidence resulting in the non-availability and non production of evidence as to who gave the cash of K21,000.00. No statement of bank reconciliation was produced.
    
69. But oral evidence adduced in Court from both the State and Defence is that there was a bank robbery and that the accused was there all the time who failed to take reasonable steps to avoid the situation on hand.
    
70. The only issue that requires resolution is, as pointed out to the Court by Mr. A. Kana, that is there is unsatisfactory explanations as to the amount of cash in the sum of K21,000.00 that was “stolen from Joseph Suat and others property of MiBank” as pleaded in the indictment.
    
71. He said that neither the Bank Manager nor the Assistant Bank Manager nor Sgt. Seregen gave evidence that this amount of cash was stolen. He also said there is no bank reconciliation or bank statement provided in Court to verify this.
    
72. Be that as it may, the other elements of the charge have been satisfactorily proven beyond reasonable doubt. Section 386(1) of the Criminal Code provides that the elements of the charge which includes:
    

(i) stealing something; and

(ii) using or threatening to use actual violence to any

other person or property; and

(iii) in order to obtain the thing stolen or to prevent or

overcome resistance to it being stolen.

73. The intention to perpetrate and perpetuate the crime had already been executed. Even if there is no evidence of the cash of K21,000 stolen, the elements of the offence as committed have been satisfactorily proven.
    
74. In my considered view, the absence of any explanation by way of evidence verifying the stealing of cash of K21,000.00 from Joseph Suat & others the property of MiBank is of no consequence to the end result of the case and is immaterial.
    
75. Subsection (2) of Section 24 of the Criminal Code clarifies the position here which provides that:
    

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by any act or omission, THE RESULT INTENDED to be caused by an act or omission is immaterial...”

76. Having said this, it is clear that the State has discharged its onerous duty in negating the defence of honest belief or mistake of fact as provided under Section 25 of the Criminal Code see R -v- Ulel [1973] PNGLR 354 and R -v- Yeka Kiok [1970] N607 and Momote Kulang of Tamagot -v- The Queen [1964] HCA 21; [1964] 111 CLR 62.
    
77. I say this because the elements of the charge as laid have been proven beyond reasonable doubt.
    
78. This now brings me to the question as to whether he was compelled under the circumstances described herein.
    
79. Section 32 of the Criminal Code summarily provides that a person is not to be held criminally responsible for any allegation if he acted under compulsion leading to the commission of the alleged crime.
    
80. This defence, however, does not apply to cases involving indictable offences which carry a penalty of life imprisonment or death. The offence of armed robbery provides for a maximum penalty of death.
    
81. The defence of compulsion under Section 32 of the Criminal Code therefore does not apply to the facts of this case.
    
82. However, giving consideration to all the evidence adduced in this matter in Court, I find that there is sufficient evidence against the accused such that he be found guilty as charged.
    
83. I therefore make Orders that the case against the accused has been made out, and that the accused is guilty of the charge as laid.
    
84. And I so order
    

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant