SC849

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA. 50 OF 2005

BETWEEN:

VINCENT SIMBAGO
- Appellant-

AND:

THE STATE
- Respondent-

Wewak: Kirriwom, J
Batari, J
Mogish, J.
2006: 28 & 31 August

CRIMINAL LAW – Multiple offences – Armed Robbery and Murder – Robbery of motor vehicle on the road – Reckless driving of stolen motor vehicle causing accident – Deceased injured in the accident and died – Charge of Murder - Plea of guilty to murder – Sentenced to life imprisonment – Criminal Code, s.300(1)(b)(i) and (ii).

CRIMINAL LAW – Practice and Procedure – Charge of murder – Death arose out of motor vehicle accident - Reckless and dangerous driving of stolen motor vehicle resulting in accident causing death – Whether reckless driving resulting in accident and causing death can amount to murder under s.300(1)(b)(i) & (ii) of the Code – Whether there is nexus or causal link between death and robbery – Whether death was result of a deliberate act or result of an unintended intervening event – Whether the appellant was properly indicted for murder – Whether a miscarriage of justice occurred.

CRIMINAL LAW – Parties to Offences – Common Purpose – To commit robbery - Vehicle stolen by means of arm robbery on the road – Stolen vehicle driven recklessly by an accomplice of accused – Accident happened and death resulted – Whether accused can be accessorially liable for the reckless driving of his accomplice – Whether death of deceased was a probable consequence of committing robbery – Whether death was the result of an intervening event – Whether reckless driving was an intervening event that caused the accident from which death resulted – Whether accused could be criminally liable as an accessory or principal - Criminal Code, ss. 7 and 8. 

Facts

The appellant was a member of a six men gang that stole a motor vehicle by using threats of violence on the road at night in Wewak town while armed with guns. It was a Toyota hi-lux single cabin. One of them took over the driving wheel while the owner and his passengers were ordered to sit at the back with the rest of the gang members. The vehicle was driven at quite an excessive speed that in turning a sharp bend the driver lost control and the vehicle veered off the road and went into a drain where the passengers at the back were thrown out of the vehicle. The deceased fell on the road and received serious injuries and later died. The appellant was not the driver of the vehicle. He was charged with murder and upon advice pleaded guilty and sentenced to life imprisonment. He appealed against the severity of sentence.

At the hearing of his appeal the Supreme Court was immediately faced with, inter alia, the question of whether the conviction for murder was correct in law and whether it must exercise its inherent power as the final court of appeal to review the conviction on its own volition in the interest of doing justice.

The court proceeded to review the conviction and held, upholding the appeal:

(1)	The appellant was erroneously convicted of murder irrespective of his plea of guilty to that charge.

(2)	On the facts and circumstances presented in this case, charge of murder was unsustainable in law.

(3)	The warrant of commitment for life imprisonment on a charge of armed robbery where the appellant was not even arraigned and tried for armed robbery is null and void ab initio and ordered removed from the records.

(4)	By means of an act done in the prosecution of an unlawful purpose under s.300(1)(b)(i)&(ii) means an act that directly relates to the unlawful purpose which in this case is the robbery. 

(5)	Consequently the death of the accused was not the result of an act done in the prosecution of the unlawful purpose which is that of robbery which requires presence of mens rea and actus reus to bring about that particular result. Death was the result of an intervening event which was the dangerous driving of the stolen motor vehicle by the accomplice of the appellant.

(6)	The act causing death must be a separate and distinct unlawful act and must be deliberate, not accidental or unintentional.

(7)	Appellant cannot be accessorially liable for an unintended act of an accomplice pursuant to s. 7 and s. 8 of the Code.

Cases cited and referred to:
Pasi v The State [1991] PNGLR 254
R v Hone Dorope [1970] (Pre-Independence Supreme Court, No SC608, unreported) 
The State v Joseph Maino [1977] PNGLR 216.
The State v Tau Ted Lahui & Ors [1992] PNGLR 325
The State v James Tom Geasa [2006] Unreported National Court Judgment Cr.77 of 2004 (24/3/06)
The State v Lance Tayang [2004] Unreported National Court Judgment Cr. 562 of 2004) (13/8/05)
The State v. Avana Gini [2003] N2485
The State v. Tony Pandau Hahuahori [2002] N2185
The State v. Wesley Nobudi, John Lulu Evoa and Franki Yalikiti Fravo [2002] N2510
The State v. Dick Keroa Nentepa [1999] N878
The State v. John Kama [2001] N2217
Ian Napolean Setep v. The State [2001] SC666
The State v. Kevin Anis [2003] N2360
The State v Tom Keroi Gurua, David Laiam Bawae and Joseph Nimagi [2002] N2312.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State [2004] Unreported Supreme Court Judgment (01/04/04) SC741

Counsel:
Appellant in person
R. Auka, for the Respondent

DECISION

31 August 2006

1. BY THE COURT: The appellant was convicted on 20 September, 2005 on a charge of murder in Wewak on his own plea of guilty and sentenced to life imprisonment on 26 September, 2005. The appellant was a member of a six men gang that held up a vehicle on the road and stole it at gun-point and were travelling in it at excessive speed driven by one of his accomplices when it got into an accident killing a passenger. He was charged for the murder of his death under s.300 (1)(b)(i) and (ii) of the Criminal Code. He appealed against the severity of that sentence on 29 September, 2005, just three days following his imprisonment to life.

2. He premised his appeal against the severity of the sentence of life on two grounds:

1.	Sentence of life imprisonment was quite excessive as he did not intend to kill the deceased nor did he drive the vehicle that caused the death of the deceased.

2.	He admitted the offence and thus made it easy for the police and the court and expressed remorse for what happened which the trial judge failed to consider.

3. At the outset of this appeal against the severity of the sentence of life imprisonment, we are confronted by or with some very serious procedural errors clearly apparent on the face of the record that in the interest of justice we must deal with first before delving into the grounds of appeal. The Supreme Court is the highest appellate court on record with inherent powers under section 155(2)(b) of the Constitution to review all judicial acts of the National Court. And also under section 155(4) the Supreme Court has inherent powers to make such orders as are necessary to do justice in the circumstances of a particular case. It is our view at the first glance of this appeal that gross miscarriage of justice may have occurred in the trial of this matter that failure on the part of the court to address it now could amount to injustice to the appellant. 

4. These errors we shall come to shortly were discovered in the Appeal Book itself when reading the transcripts of the proceeding and also drawn to our attention during the hearing of the appeal by the appellant himself who argued his own case. In a nutshell, the errors on the face of the record are these:

1.	The appellant was indicted with one count of murder under section 300(1)(b)(i) & (ii) of the Code based on the facts and circumstances that supported armed robbery of a motor vehicle and dangerous driving causing death, convicted and sentenced to life imprisonment on his own plea of guilty and a warrant of commitment to that effect was accordingly issued.

2.	Following his conviction for murder on his own plea of guilty, the appellant was also committed to prison by a separate warrant of commitment to serve another period of life imprisonment in Boram on the same day by the same judge for an offence of armed robbery that he was never tried of.

5. To appreciate how these errors crept in, one must understand clearly the factual circumstances of the case itself. 

6. The appellant and his accomplices set out that night between 7 pm and 8 pm on 9 January 1999 along Church Street, Wewak looking for a motor vehicle to steal. They needed a vehicle as they had planned to commit robbery in the villages along the West Coast Road. A Toyota Hi-Lux single cabin registration number AEX 919 owned by World Vision was driven by one Elias Nara along that street and became the victim. The deceased James Walenge was a passenger on that vehicle. There were also three other passengers, two of whom were small children. 

7. As the vehicle approached them near the Sepik Timbers the appellant and six of his accomplices armed with two homemade guns stepped onto the road and blocked the vehicle by pointing their guns at the driver. The driver stopped. The driver and his two sons were ordered out of the cabin and everyone was ordered to sit on the tray. One of the appellant’s accomplices named Charlie Mombira jumped into the driver’s seat and took over the driving. The vehicle then headed towards Dagua way along the west coast road at such an excessive speed that near Mangara village at a sharp bend, the driver lost control and the vehicle ran off the road hitting the drain on the side of the road throwing everyone on the tray of the vehicle flying out in all directions. The deceased James Walenge fell off the back trailer as result of that accident and landed on the road where he sustained injuries from which he later died.

8. These are the facts on which the charge of murder is founded by the State.

9. The appellant was charged by the Police for two separate offences, (1) armed robbery and (2) wilful murder and was committed to stand trial in the National Court for both these offences. However, at the trial itself the State, in endeavouring to comply with the Supreme Court authority in Charles Bougapa Ombusu v The State [1996] PNGLR 335 chose to proceed only with the charge of murder against the appellant. The appellant was represented by a young and inexperienced lawyer and so was the State lawyer. Both were relatively young and unsupervised and here they were faced with a difficult case where the appellant was facing two very serious charges, one of armed robbery and another one of homicide, both arising from the same chain of events or circumstances. Both, it seems were aware of the Supreme Court decision in Charles Bougapa Ombusu v The State (supra) which prohibited combining any other charge with a serious charge of homicide. Therefore in order to avoid that scenario, State counsel chose to proceed with the murder charge while the charge of armed robbery was left in abeyance to be tried separately, obviously before another court and another judge.

10. That being the case, the only verdict that the court properly reached after a due trial is the one in respect of the charge of murder and which the appeal relates to, although we note in the notice of appeal the appellant also makes mention of arm robbery as well. The appellant was not tried for armed robbery although before us he argued forcefully that he was part of the plan to commit robbery, not to commit murder. There is already overwhelming evidence of the commission of robbery of motor vehicle on the road. However, somewhat mysteriously on the same day the appellant was sentenced to life imprisonment for murder, another warrant bearing the trial judge’s signature also committed the appellant to another term of life imprisonment for an offence of armed robbery he was never tried of. The validity of this document comes under scrutiny and is discovered to be a procedural error that must have eventuated out of misunderstanding or misapprehension of the principle established in Charles Bougapa Ombusu’s case. We discovered a copy of the same warrant in the court file. The warrant itself is clearly defective in that whilst it has the name of the appellant on the top of the page, down in the body of the document it has the name, Kennedy Kara, so it is not certain whether the warrant is referring to Kennedy Kara or the Appellant. Kennedy Kara is another appellant who also appealed and appeared before us in this sitting of the Supreme Court and his appeal was upheld. Kennedy Kara was also convicted and sentenced to eleven years imprisonment for armed robbery in the same circuit when the trial judge dealt with the appellant in this case.

11. This is a material defect that renders the document devoid of merits and substance. Therefore, for want of authenticity and reliability, the document must be declared null and void ab initio and ordered removed from the records. This is a procedural error that could be easily dealt with this way.

12. The next issue, which is a more substantive one, is the question of whether the conviction for murder be allowed to stand notwithstanding that the appellant pleaded guilty to the charge and that the appeal is not against conviction but only against sentence? Murder conviction stemming from death caused as a result of dangerous or reckless driving is not a common type of verdict for the Supreme Court to brush aside this conviction as it were an ordinary run on the mill type of case. This is an unusual case and an unusual conviction that proceeded on the basis that the death of the deceased was the result of an act done in the prosecution of an unlawful purpose, which Mr Auka submits is in accordance with section 300(1)(b) of the Criminal Code. Subsection (1)(b) of s.300 provides:

‘Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder-

(a) ……
(b) if death was caused by means of an act-

(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life; or..’

13. Section 300(1)(b)(i) & (ii) has been judicially considered by the Supreme Court in Pasi v The State [1991] PNGLR 254 where Kapi, DCJ (as he then was ) said at p. 256:

"The applicability of this provision is set out in the cases of R v Hone Dorope [1970] (Pre-Independence Supreme Court, No SC608, unreported) and The State v Joseph Maino [1977] PNGLR 216. These two cases stand for the proposition that the "act" which is done in the prosecution of an unlawful purpose is separate and distinct from the "unlawful purpose". In the present case, assault on the deceased which constitutes the act cannot also constitute the unlawful purpose. In such circumstances, s 300 (1) (b) cannot be applicable."

14. According to Mr. Auka, the act referred to in this case was the driving, the unlawful purpose was to commit robbery. The driving was reckless. Thus in effect Mr Auka’s submission is that the appellant drove the vehicle recklessly and in a dangerous manner for the purpose of committing a robbery and in the process caused the death of the deceased. The appellant was not the driver of the vehicle but Mr. Auka submits that the appellant is equally liable because of sections 7 and 8 of the Criminal Code as they were jointly involved and had planned to commit robbery together. 

15. In our view there is a fundamental gap in the causal link or nexus between the appellant’s original intention to commit robbery and the death of the deceased resulting from an accident caused by the reckless driving of the stolen motor vehicle. The direct cause of the deceased’s death is the motor vehicle accident. The accident was not a deliberate act to bring about that specific result. Neither was the driving per se a deliberate act to bring about that specific result of the death of the deceased. 

16. On one view of the evidence in this case, the act of reckless driving causing accident leading to death, is an event that occurred after the robbery had been completed which is the stealing of the motor vehicle by threats of violence and as such the said act of reckless driving could not have been done in the prosecution of an unlawful purpose which is to commit robbery. Mr. Auka however submitted that the robbery of the motor vehicle was necessary for the appellant and his accomplices to commit another robbery with the use of that stolen vehicle. According to the appellant’s own story in the record of interview, their intention was to steal the motor vehicle and to proceed to the West Coast Road where they had planned to hold up the village clubs in the area to steal beer. They were heading that way when the vehicle overturned and not only the deceased suffered injuries from which he died; others also received injuries including one of the appellant’s accomplices.

17. The difficulty that arises here in accepting Mr Auka’s submission is a legal one that with respect Mr Auka had not come fully prepared to assist the court with other than simply submit that the conviction was founded on s.300(1)(b). Mr. Auka’s submission cannot stand firm when viewed from several perspectives. First, there is no direct causal link or nexus between the original plan to commit robbery and the death resulting from the vehicle accident. Secondly, the robbery had been completed. Thirdly, the plan to rob the village clubs was only an intention that had not yet translated to fruition as yet when the accident happened so it does not meet the requirement of section 300(1)(b). Fourthly, the appellant was not the driver of the vehicle concerned. Fifthly, dangerous driving causing death is a no fault liability offence and as such criminal culpability of a person under section 7 and 8 situation cannot and need not apply. There is no unlawfulness in the act of driving that the appellant may be said to have supported or encouraged other than the unintended reckless driving by the accomplice that is a matter entirely within the control and power only of the person behind the wheel of the car at the material time of the accident. No one deliberately drives a motor vehicle recklessly to cause an accident.

18. This situation must be distinguished from the factual scenario in The State v Tau Ted Lahui & Ors [1992] PNGLR 325, the infamous ‘Lutchini case’ as it came to be known which was appealed to the Supreme Court on severity of life sentence and the Supreme Court rejected the appeal and confirmed the sentence as it was quite a gruesome case of murder. That was an appropriate case in which section 300(1)(b) was invoked and we affirm that decision of the Court.

19. In that case Tau Ted Lahui and five other young men held up the victim Mrs. Theresa Lutchini at Hohola market in Port Moresby and took her vehicle. In the vehicle were her child and her old mother. While surrendering the vehicle to the thugs she reached inside to rescue her child and her old mother. As she and her mother were forced out of the vehicle, their hands got caught in the seat belt when the door was hurriedly shut by the prisoners to make their escape with Tau Ted Lahui driving. As the vehicle drove off both Mrs Lutchini and her old mother were dragged by her hands. At some point the old mother came free except for Mrs Lutchini whose hands were still tangled by the seat belt as the vehicle travelled at high speed through the streets of Hohola and other parts of the city for a distance of 3 kilometres to evade police who were pursuing them. The prisoners saw the dangerous situation the deceased was in and tried several times to release her but did not quite succeed. It was a choice between saving themselves from being arrested or sparing the life of the deceased. They chose to save themselves from being arrested and as the consequence an innocent life was most horrifically and horribly killed in circumstances beyond human comprehension. It was not as if they did not know what the terrible outcome of their foolhardiness was going to be. Death was inevitable and they all knew. Continuing to drive in that circumstance while a life was clinging by a mere breath as long as that dangerous situation remained unchanged ‘was an act done in the prosecution of an unlawful purpose which was robbery’ and as such fulfilled that requirement of section 300(1)(b)(i) of the Code. This is what the trial judge said at p…:

"It is quite clear that Tau Ted Lahui co-operated in the scene indication and there has been no complaint about it. He indicated freely where efforts were made on 2 occasions to release the deceased from the seat belt. It follows, therefore, that he did know that the deceased was being dragged behind the car in which he was driving even though he denied it in the first interview. Knowing that the deceased was being dragged, he continued to drive the vehicle at high speed. In fact, she was dragged in all some 3 kilometres. That distance was confirmed when the Court went on a view of the scene. The deceased was dragged along sealed roads with rough edges and some pot holes. On the first occasion the vehicle stopped, it had already travelled a considerable distance, and the second time, even farther. When the deceased was not released after the second attempt, I am quite satisfied that Tau Ted Lahui knew that she was still entangled. I am also satisfied beyond reasonable doubt that he would have known that she was still being dragged as he sped through the streets of Hohola. People in the car would have told him, he could probably have felt it in the steering and seen it for himself. People on the road were screaming at him to stop. To believe him when he says that he did not know that the deceased was being dragged would, on my part, be parting company with reality. Therefore, I must go back again to the said s 300(1)(b) of the Criminal Code. Clearly, death was caused by means of an act done in the prosecution of an unlawful purpose. The unlawful purpose was the undisputed stealing with force of the motor vehicle and driving off in it. Was the act "of such a nature as to be likely to endanger human life?" To my mind, the answer must be yes. To knowingly drag a human being along behind a motor vehicle at high speed for 3 kilometres on sealed roads with rough edges and pot holes is an act which is likely to endanger human life. To think otherwise would be quite unrealistic."

20. However, that scenario is totally different to the one in this case. The robbery was completed when they stole the motor vehicle at gun-point. They were escaping from the scene of that robbery and proceeding to another location where further robbery was planned to be executed. But before they got there, there is an accident along the way when the vehicle driven by one of the appellant’s accomplices went off the road and overturned killing one of the passengers on the trailer and injuring several others.

21. Was it ever foreseeable to the appellant that they were going to have an accident on the way to their destination where they planned to carry out their robbery? Was he in any position to control the way the vehicle was driven so as to avoid an accident where he or anyone of the passengers might be hurt if an accident happened? This was never anticipated nor envisaged to happen let alone imagined such as to impute criminal intent on the part of the appellant.

22. On the question of whether Jeffrey Airi who was a co-accused in the Lutchini murder case could be accessorially liable under section 7 and 8 of the Code where he was not the driver of the vehicle, the trial judge said at p.:

"I am satisfied beyond reasonable doubt that Jeffery Airi Eki was fully aware that the deceased was being dragged behind the motor vehicle. Indeed, he admits it quite openly in his record of interview. He made 2 unsuccessful attempts to release her. On the first occasion, the deceased was still alive, but even so the accused decided to allow her to be dragged further because he was trying to avoid being apprehended by the public. On the second attempt to release the deceased, she obviously was seriously injured at that time. She was unconscious and bleeding heavily. Still, the accused let her be dragged further eventually to her death. She was dragged for 3 kilometres before eventually being released. It seems that she was bleeding heavily and unconscious after being dragged several hundred metres. Jeffery Airi Eki saw her condition at that time, so it only stands to reason that he would have realized what state she would be in after being dragged 3 kilometres. He, like Tau Ted Lahui, knew that the deceased was being dragged at high speed on sealed roads with rough edges and pot-holes. He would clearly have known that it was likely to have endangered her life. He did not in anyway disassociate himself from the act that caused the death of Theresa Mitchell Lutschini. I am, therefore, satisfied beyond reasonable doubt that Jeffery Airi Eki is also guilty of the murder of the deceased."

23. Another scenario where section 300(1)(b)(i) & (ii) of the Code was appropriately invoked was in the recent National Court case in Lae of The State v James Tom Geasa [2006] Unreported National Court Judgment Cr.77 of 2004 (24/3/06) where the accused pleaded guilty to two counts of murder committed in almost similar circumstances as in the Lutchini case and this case. The prisoner and several young men set up a road block at Zenag along Lae-Bulolo Highway where the section of the road was quite steep and waited for vehicles bound for Lae from Bulolo way. A single cab utility with passengers both in the cabin and on the tray was travelling in-bound Lae from Menyamya that morning when it encountered this road-block. As the vehicle climbed up the steep-hill several gunmen were already on the top of the rise waiting and signalling for the driver to stop. The driver upon seeing the danger ahead panicked and not willing to submit to their demand, he decided to reverse down the slope which was not a wise decision after all. As he did, the gunmen moved forward towards him threateningly with their guns pointed at him and he continued to reverse downhill and ultimately lost control of the vehicle as it went off the road and capsized over the cliff landing meters below at the bottom of a rough and stony riverbed. Two deaths resulted from that accident. 

24. The prisoner was charged with two counts of murder under section 300(1)(b)(i) and (ii) of the Criminal Code and pleaded guilty to the charges. For purpose of comparison with the case at hand, the trial judge made the following remarks:

"This is a case of robbery turning bad. The accused and his accomplices wanted to rob the driver and the passengers. But the driver was not prepared to submit to robbery and decided to save himself and his passengers. Given the difficult section of the road and there was no room for escape, the accused and his friends continued to pursue the vehicle with their guns pointed at the driver thereby forcing the driver to continue down that dangerous decline. By pursuing the vehicle to the point where there was no way out but and accident, the accused and his accomplices deliberately caused the vehicle into that life threatening situation ending in tragedy meters below a river bank.

The accused is charged under section 300(1)(b)(i) and (ii) of the Criminal Code which provides as follows:

"(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—
(a)	………………..; or
(b)	if death was caused by means of an act—
(i)	done in the prosecution of an unlawful purpose; and
(ii)	of such a nature as to be likely to endanger human life; or
(c)	………………" (emphasis is mine)

My initial reaction was that the charge of murder was inappropriate in the circumstances of the case given that the motive was one of robbery but death resulted from an act that was totally independent of their actions. I was of the view that perhaps a more appropriate charge was one of manslaughter. But the accused had pleaded guilty to both counts of murder no doubt based on counsel’s advice. However my decision to accept the pleas on both counts of murder is supported in my view by subsection (2) of section 300 which provides:

"(2)	In a case to which subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person." (emphasis is mine)

In essence what this means is that the fact that they may not possess or may not have possessed the necessary mental element of hurting anyone as they focused on the robbery as their prime objective, that is irrelevant or immaterial. Perhaps in another appropriate case the law could be tested.

Therefore, in the circumstances of this case, I am of the view that plea to murder on both counts is in order pursuant to the law as set out in s.300(1)(b)(i) and (ii) and (2). As witness Mackenzie Kelamu, a school teacher at Mumeng and a passenger on that ill-fated journey summed up in his statement to the police:

"These are …the points which caused the accident where two lives were lost and several injured:

if there was no armed holdup, there won’t be any deaths or injuries to the passengers.
(2)	When the driver tried to reverse back to avoid the robbery, the criminals pursued us with their guns that caused the driver to panic with shock and could not in a normal sense control the truck on the road."

This is, in a nutshell, a layman’s conclusion of where the fault lies and who must bear the responsibility for these deaths. His conclusion is consistent with what section 300(1)(b)(i) and (ii) is saying. By deliberately pursuing the vehicle with their guns and forcing it to crash, it was that very act, which was done in the prosecution, if not in furtherance of the prosecution, of an unlawful purpose, which is the robbery, and that act of threatening the driver with guns pointed at him and pursuing the vehicle threateningly with their guns ready in their hands they knew was an act likely to endanger human life, that is, the lives of passengers being either deliberately, recklessly or inadvertently placed at risk as long as they continued to pursue the vehicle to reverse backwards down the slope where it was bound to fall or capsize down the cliff or edge and thereby hurting or killing the passengers. And there was indeed a crash and the passengers got killed and injured. The circumstances in this case is no different from a scene where the accused ordered everyone in the vehicle to remain put and they physically pushed the vehicle over a cliff dropping many meters below killing or injuring its passengers. The vehicle did not drop down that cliff by itself or by deliberate negligence of its driver. It was the work or actions of the accused and his accomplices. It is the same in this case.

It was held that the test whether an act is of such a nature as to be likely to endanger human life within the meaning of paragraph (2) of s.302(1)(b) (which is the Queensland Code equivalence of our s.300(1)(b)) is an objective one: see R v Gould and Barnes [1960] Qd. R. 238."

25. His Honour then proceeded to discuss the current sentencing tariffs on murder cum robbery cases or murder arising out of robbery cases and said:

"Some of this offender’s accomplices have been dealt with already. On 13th August, 2004 in Lae I sentenced the accused’s co-offender Lance Tayang (see The State v Lance Tayang [2004] Unreported National Court Judgment Cr. 562 of 2004) to six years for armed robbery and ten years each on the two counts of murder on his own plea of guilty to all three charges (ie of armed robbery and the two counts of murder). The two murder sentences were ordered to be served cumulatively and the robbery sentence was made concurrent to the murder sentences. So in total the prisoner was ordered to serve twenty years in prison. The court was mindful of the totality principle in the exercise of its discretion. The accused or the prisoner in this case is charged only in respect of the two deaths and not the robbery. 

Before I come to discuss any specific matters pertinent only to this accused, in my view, the discussion on the law and the different sentencing tariffs on murder or homicide cases connected with armed robbery are also applicable in this case and I adopt and apply them in this case. This is what the judgment states:

"There is no question that the deceased Nicodemus Bais and Matrus Paul met their deaths as the direct result of the robbery that was carried out that day. It is a miracle that there were only two deaths. The prisoner and his friends showed no mercy. When the vehicle reversed down hill upon realising the danger up front, the prisoner and his friends made already a dangerous situation worst, by pursing them downhill pointing their guns at them. This is the same as ordering someone to commit suicide or death. By causing the vehicle to run out of control when the driver could no longer correct the dangerous situation thereby resulting in the accident and the injuries sustained leading to the deaths, the prisoner and his friends are responsible for these innocent lives that were lost. It is good that the prisoner appreciates the gravity of the situation he and his friends caused which led to very unnecessary deaths on this day.

Killings associated with armed robberies have been regarded as most serious by the Courts. In fact the law envisages this to be so by the heavy penalty that the Parliament has seen fit to prescribe even in attempted armed robbery cases where firearm is discharged and someone is injured or wounded under section 387(3) which carries life imprisonment.

Sentences imposed in killings associated with robberies or attempted robberies have not been totally consistent so far. At the very low end of the scale is 13 years where Jalina, J imposed in The State v. Avana Gini [2003] N2485 and the highest is life imprisonment as in The State v. Lau Ted Lahui [1992] PNGLR 3254, The State v. Tony Pandau Hahuahori [2002] N2185 and The State v. Wesley Nobudi, John Lulu Evoa and Franki Yalikiti Fravo [2002] N2510. 

At the upper end of the determinate sentences imposed by the Court range between 20 and 50 years imprisonment. A sentence of 21 years was imposed in The State v. Dick Keroa Nentepa [1999] N878 where the accused and several others held up the victim inside his house, stole his vehicle and as they drove of, one of his accomplices fired his gun and shot dead the victim. The prisoner and several others pleaded guilty to killing simpliciter on the basis that the person who pulled the trigger and shot the deceased acted on his own because that was not their intention. All they wanted was the vehicle and they got it and content to leave with the vehicle until their co-offender decided and acted independently and shot the deceased. In The State v. John Kama [2001] N2217 the prisoner and friends set an ambush on the road and waited for vehicles to rob. As the deceased drove up the prisoner and his accomplices stood on the road with the guns pointed at the driver. As soon as the vehicle reached them they shot the driver on the head at point blank and he died instantly. The vehicle uncontrolled without driver ended up in the drain. They robbed those passengers who continued to remain with the vehicle. The prisoner was sentenced to 25 years imprisonment.

In Ian Napolean Setep v. The State [2001] SC666 the prisoner who was sentenced to life imprisonment appealed against severity of sentence which was reduced by the Supreme Court to 25 years. In The State v. Kevin Anis [2003] N2360 a sentence of 37 years was imposed where the prisoner and his accomplices wanted to hold up PMV trucks travelling along Maprik – Wewak Highway. Armed with guns they hid themselves near Maringe village and waited. Two PMV trucks travelled down towards them and the prisoner and friends stepped onto the road pointing their guns at the driver of the first vehicle. Both drivers were not going to stop and did not slow down and the gunmen jumped out of the way of the vehicles but fired at both moving vehicles resulting in several passengers being struck by the pellets. One seriously wounded passenger survived and another subsequently died.

The highest determinate sentence imposed by the National Court is fifty years in a robbery associated murder of the deceased who was shot down as he fought with the prisoners who tried to abduct his daughter as they escaped after robbing them. See The State v Tom Keroi Gurua, David Laiam Bawae and Joseph Nimagi [2002] N2312."

26. Tom Keroi Gurua appealed against his fifty years sentence but the Supreme Court dismissed his appeal and affirmed the sentence (Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State [2004] Unreported Supreme Court Judgment (01/04/04) SC741.

27. Cases in which murder associated with armed robbery convictions have been accepted by both the Supreme Court and the National Court to be legally correct have all had to do with deliberate act on the part of those engaged in the unlawful enterprise ie robbery and heedlessly or uncaringly placing the lives of the innocent victims at risk by a distinct and deliberate act such as use of violence or firearms or unlawful weapons for the furtherance of the unlawful purpose. The acts per se must be distinct and unlawful.

28. In the case before us, driving per se is not unlawful. It is deemed unlawful in the instant case because they had no lawful authority of the owner to use the vehicle as they obtained it by means of armed robbery. But the original purpose for stealing the vehicle which was to rob the village clubs along West Coast road as stated in the appellant’s record of interview was still a long way from realization or manifestation into a tangible purpose or plan when the accident happened and ruined that plan. The accident did not take place while the planned robbery was in the making.

29. It would appear therefore that the conviction for murder in the circumstances is legally wrong and unsustainable.

30. The State relied on sections 7 and 8 of the Code and Mr Auka argued that the appellant was the ringleader and part of the group that planned to commit robbery and this death arose in the course of committing that robbery. We set out below the two sections:

"7.	Principal offenders.

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a)	Every person who actually does the act or makes the omission that constitutes the offence; and

(b)	Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c)	Every person who aids another person in committing the offence; and

(d)	Any person who counsels or procures any other person to commit the offence.

(2)	In Subsection (1)(d), the person may be charged with—

(a)	committing the offence; or

(b)	counselling or procuring its commission.

(3)	A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a)	guilty of an offence of the same kind; and

(b)	liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

8.	Offences committed in prosecution of common purpose.

Where—

(a)	Two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b)	in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence."

31. The question that arises in the light of these two sections, in the peculiar circumstances of this case, is whether the appellant who was not the driver of the motor vehicle can be held liable as if he himself had driven the vehicle and caused the accident.

32. On the other hand, if section 8 is to apply, the question that arises is; what is the common purpose in their joint criminal enterprise? The common purpose would be to commit robbery. Is the death in the circumstances of this case a probable consequence of prosecution of unlawful purpose which is robbery? It brings back the earlier argument we raised as to whether it was foreseeable that there would be an accident and death would result and whether the appellant was in any position to prevent it, let alone to choose. This eventuality was an act that was totally beyond his control and it would be too far remote to connect the death of the deceased with the appellant on the basis of section 7 and 8 either individually or by their combined operation.

33. For the foregoing reasons we would uphold the appeal in that the trial miscarried in the way it was proceeded with, we quash the conviction and sentence on the charge of murder and order the acquittal of the accused of that charge. We considered remitting the case back for retrial but that would be unfair to the appellant who has been duly tried of this charge on arraignment and pleaded guilty based on erroneous legal advice and it would not be proper for him to be retried on the same charge founded on the same facts and circumstances. 

34. However, the outcome in this appeal has no bearing on the charge of armed robbery which remains pending. In the circumstances we issue fresh warrant of remand for the accused to be detained in custody pending his trial on armed robbery stemming from the same incident.

35. In the light of the decision reached, we do not deal with the ground of appeal on the severity of sentence.

Appellant in person
Public Prosecutor: Lawyer for the Respondent