[national court of justice]

the state

v

towes minmin (no. 2)

kokopo: lenalia j

26 August, 6 October 2005

CRIMINAL LAW – Armed robbery – Evidence – Rejection of confessional statement – Rejection of record of interview – Prosecution further evidence – Finding of not guilty – Criminal Code s.386, Ch. No. 262

CRIMINAL LAW – burden of proof – Circumstantial evidence – Inference to be drawn – Relationship of inferences to the finding of guilt – Alternative findings as shown by evidence – Not guilty findings to charges of armed robbery and receiving stolen property – Criminal Code ss.545 & 547.

Facts

The accused in this case was tried for one count of aggravated armed robbery contrary to s.386(1)(a)(b)(c) of the Criminal Code. A voir dire notice was served on the Public Prosecutor's office in Kokopo and filed in the National Court Registry Office on 15 June 2005. When the trial commenced on 26 August 2005, the prosecution called four witnesses.

Held

1.	In order for the court to find the accused guilty on the basis of the circumstantial nature of the prosecution evidence, the court must reach a rational inference and it must be "the only rational inference that the circumstances would enable" this court to draw: Plomp v The Queen (1963) 110 CLR 234, see also Thomas v the Queen (1960) 102 CLR 584, The State v Tom Morris [1981] PNGLR 493, Allan Oa Koroka v the State and Mariano Wani Simon v The State [1988-89] PNGLR 131 and The State v John Wanjil & 3 Ors [1997] PNGLR 64.

2.	The evidence against the accused must not just be a speculative one and where there are inferences inconsistent with the guilt of the accused, there is discretion to acquit the accused: Barca v the Queen (1975) 133 CLR 50 ALJR 180 at 117, see also Paulus Pawa v The State [1981] PNGLR 498.

3.	The law on identification is clear and has been stated in a number of leading cases such as in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153. 

4.	Accused was found not guilty on the charge of armed robbery on the basis of the State's circumstantial and identification evidence.

5.	The accused was also found not guilty on the alternative charge of receiving stolen property. The elements of receiving was not made out.

6.	The accused was therefore acquitted and released from custody.

Papua New Guinea cases cited

Allan Oa Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131.
Constitutional Reference No. 1 of 1977 [1977] PNGLR 362.
The State v Allan Woila [1978] PNGLR 99.
The State v John Wanjil & 3 Ors [1997] PNGLR 64.
The State v Kusap Kei Kuya [1983] PNGLR 263.
The State v Tom Morris [1981] PNGLR 493.

Other cases cited

Barca v The Queen (1975) 133 CLR 50.
McDermott v The King (1948) 76 CLR 501.
Plomp v The Queen (1963) 110 CLR 234.
Thomas v The Queen (1960) 102 CLR 584.

Counsel

L Rangan, for the State.
T Potoura, for the accused.

26 October 2005

Lenalia j. The accused in this case was tried for one count of aggravated armed robbery contrary to s386(1)(b)(c) of the Criminal Code. A voir dire notice was served on the Public Prosecutor's Ofice here in Kokopo and filed in the National Court Regisry Office on the 15 June 2005. When the trial commenced on the 26 August, this year, the prosecution called four witnesses.

The first two witnesses' evidence, Police Constables Nicolas Taolo and Bernard Tutmulai, are much similar since they were the arresting officers in this case. On receipt of a complaint from the victims, the two policemen together with another of their colleagues went up to Ramale village to investigate an armed robbery. It is the State's evidence that when they got to the scene they were further referred to where the accused was sleeping in his brother in-law's house.

At the accused's brother in-law's house, they found the accused sleeping and woke him up. They then apprehended him and took him to the police station here at Kokopo. At the police station, a confessional statement was obtained after which the record of interview was conducted on that same date. Witnesses Kolish Moab and Hillary Sirinui were the interviewing officers and the corroborator in the case of the accused. A detailed discussion on voir dire trial can be read in that judgment.

The defence evidence came from the accused alone. In his evidence the accused said that when he was woken up from his bed, a policeman by the name of Toungan assaulted him. In chief and cross-edxamination, the accused was asked if Constable Bernard Tutmulai was the same person whom he named as Toungan. The accused answered that it was the same policeman only that he does not know him by the names Bernard Tutmulai.

It is the accused's evidence that outside the house, he was also assaulted. That once more at Takubar near Papindo store, he was beaten up. Then at the police station, before the record of interview was conducted, he was further assaulted and because of such behaviour, when he was asked to make a confessional statement he made admissions well knowing that if he did not answer or even if he denied the allegations leveled at him, police would beat him.

The second allegation put up by the accused is that after he had been cautioned and told of his rights, he was asked if he wanted to see and speak to a member of his family, personal friend or a lawyer of his choice, he told the police woman who conducted the record of interview (Policewoman Constable Kolish Moab) that he wanted to see Mr. Kaumi from the Public Solicitor's Office. He said in evidence that the record of interview was not suspended to allow him to talk to his lawyer as envisaged by s42(2) of the Constitution.

I gave a detailed ruling on the voir dire trial on the 6th of this month on which I rejected both the confessional staement and the record of interview into the State's evidence noting that those two documents were obtained contrary to s28 of the Evidence Act and the Constitution s42(2) and on the basis of case law authorities such as in the Constitutional Reference No. 1 of 1977 [1977] PNGLR 362, The State v Allan Woila [1978] PNGLR 99, The Stae v Kusap Kei Kuya [1983] PNGLR 263; and that following the common law case of Mc Dermott v The King (1948) 76 C.L.R. 501, I refused to accept the two document into the prosecution's evidence.

After the court handed down its ruling on the voir dire trial, the prosecution tendered with consent three more statements from the two victims and the police photographer. Dominic Pukai and his wife's, Elizabeth Pukai, statements are very much similar. They say that on 1 April 2003, they left their house at Ramale village and went to Vunamami village to peform customary practice requirements moaning the death of Elizabeth's uncle. When they returned by 7pm to Sir Henry To Robert's premises, they stopped at the gate. His wife walked out from the vehicle wanting to open the gate but, to their surprise, two men came to both of them and pointed guns at them. Soon another three or four more men appeared from behind them and the Pukais knew that they were in trouble.

The gang ordered the victims and their child to lie down on the ground. They demanded Mr. Pukai to give them the ignition keys and one of them drove out from the gate to the outer yard where there is a store. They broke into the store and loaded whatever goods their hands could find and drove off towards Tobera Plantation.

The last prosecution evidence was from Willie Mahaut who was the photographer who took photographs of the stolen vehicle and the stolen goods from Dominic Pukai's store. The vehicle concerned was dark blue in colour, a Toyota Hilux Reg. No RAD 179. I have noted from the evidence and the file that the photograph were not tendered into evidence and therefore, the court cannot further comment on such items.

After the prosecution closed their case, I heard closing submissions from the lawyers on the verdict. For the accused, Mr. Potoura submitted that the prosecution has not proven their case to satisfy the criminal standard, namely, "proof beyond reasonable doubt," as none of the two victim witnesses identified the accused on the night of the offence.

For the State, Mr. Rangan submitted that if the posecution's case has not measured up to the criminal standard of proof beyond reasonable doubt, the accused can be found guilty of a lesser charge pursuant to sections 545 and 547 of the Criminal Code. I shall refer to those sections later on in the course of discussing the law.

Law

There are a number of legal issues involved. First on the circumstantial nature of the State's evidence. The prosecution's evidence alleges that the accused was one of those men who raided and robbed Mr. and Mr. Pukai of their vehicle and trade store goods. There is however no direct evidence to show that the accused was a member of the gang that conducted the robbery on 1 April 2003.

In order for the court to find the accused guilty on the basis of the circumstantial nature of the prosecution evidence, the court must reach a rational inference and it must be "the only rational inference that the circumstances would enable" this court to draw: Plomp v The Queen (1963) 110 C.L.R. 234, see also Thomas v The Queen (1960) 102 C.L.R. 584, The State v Tom Morris [1981] PNGLR 493, Allan Oa Koroka v The State and Mariano Wani Simon v The State (1988-89) PNGLR 131 and The State v John Wanjil & 3 Ors. [1997] PNGLR 64.

Most of the evidence by the State is entirely circumstantial in nature. The two policemen who gave evidence of the accused's involvement said in evidence that due to them finding three packets of rice and some bathing soap in the house where they found the accused sleeping, they asked the accused and his sister about where they had got those properties from, the accused answered by saying that a Sepik man by the name of John gave him the rice, the batteries and the bathing soap. That was all the evidence pointing to the accused of the serious charge of armed robbery. In case of his sister, she answered the police by saying that her husband and herself had bought the property from the store.

I am reminded at this stage of the trial that the evidence against the accused must not just be a speculative one and where there are inferences inconsistent with the guilt of the accused, there is discretion to acquit the accused: Barca v The Queen (1975) 133 C.L.R. 50 A.L.J.R. 180 at 117, see also Paulus Pawa v The State [1981] PNGLR 498. The following was what the High Court of Australia said in Barca v The Queen (supra):

"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 hypthesis othe r than the guilt of the accused'. Peacock v The King (1911), 13 C.L.R. 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the acussed 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), 110 C.L.R. 234, at p.252; see also Thomas v The Queen (1960), 102 C.L.R. 584, at pp. 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 Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions [1973] 1 W.L.R. 276, that there is no duty of a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense'."

What appears from the above statement is the law in relation to circumstantial evidence. The principles stated in the above cases have been adopted in many leading cases in this jurisdiction including The State v Tom Morris, Allan Oa Koroka v The State and Mariano Wani Simon, Paulus Pawa v The State (supra), see also The State v Lamge Waea N915, The State v Tupui Kapera N567 (both unreported) and many more recent cases.

The second issue is one of identification. The two eye witnesses who were held up that night did not identify the accused nor any of those who robbed them. The law on identification is clear and has been stated in a number of leading cases such as in John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153. The Supreme Court Bench consisting of three judges in the latter case cited a passage in an English case, that of R v Rurnbull and Others [1976] 3 A11 E.R. 549, which can also be found in (1976) 63 Cr. App. R. 132, where a 5 bench of the Court of Appeal correctly stated the law on identification and the warnings involved, which warnings were adopted in those Papua New Guinea cases.

The warning on identification evidence is this. Where the prosecution case relies on the correctness of identification evidence which the defence alleges to be mistaken, the court must warn itself of the need to be cautious in treating evidence of identification.

Sometimes a witness may see a suspect in a fleeting glance only or it may be that the witness' observation is impeded by certain objects or his memory of that particular occasion. Does, the witness know the accused well or do they know each other and if so how long have they known each other. Recognizing someone is more reliable than identifying a stranger.

A witness may testify that he or she knows the accused well or even a member of his or her own family; he may make a mistake in relation to identifying him. Recognition, however, enhances the quality of identification evidence. When the quality of identification evidence is good, the court can safely assess the value of such identification evidence even where there is no other supporting evidence: John Beng v The State [1977] PNGLR 115.

There is no evidence by either Dominic Pukai or Elizabeth Pukai in relation to conditions of lighting that night. Whether they were at all able to see the accused or not. All the evidence by the two eye witnesses say is that there were about eight or nine men who immediately surrounded them and ordered them to lie down on the ground. Those two witnesses do not say in their statements if they saw the accused on the scene.

The three police officers who apprehended the accused from his brother in-law's place did not identify the accused. All the evidence on which the prosecution relied on, that is, the confessional statement and the record of interview, were already rejected by this court on the 6th of this month. Where does the State's case now stand?

Mr. Rangan in his submission directed the court's attention to s.547 of the Code submitting that if the court cannot find the accused guilty on the indictment, the accused could be found guilty on an alternative lesser charge of receiving pursuant to s.410 of the Code. The argument by Mr. Rangan on alternative finding is based on 

s.547 of the Criminal Code which says:

"(1)	If on the trial of a person charged with an indictable offence the evidence establishes that he is guilty of another indictable offence of such a nature on an indictment charging him with it he might been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.

(2)	In a case to which Subsection (1) applies, the person is not liable to be afterwards prosecuted for the offence established by the evidence, unless the court before which the trial is had directs the accused person to be indicted for that offence, in which case he may be dealt with in all aspects as if he had not been put upon his trial for the offence with which he is actually charged."

Obvious as at is, there is evidence by Constables Nicholas Taolo and Bernard Tutmulai that when they searched the accused's brother in-law's house, they found packets of rice and some bathing soap. When they asked the accused and his sister and may be his brother in-law, though the accused said he told the police that a man from Sepik gave him the rice, his sister either said, they bought it from the store or did not say anything.

But I noted the two policemen's evidence emphasis is that because of the manner under which the goods were placed under the bed on the gound, they then got suspicious about that and thought such property was taken on the scene of the robbery by the accused leading them to arrest and charge him for the offence of armed robbery.

Just like any branch of criminal law, the law of receiving stolen property has it own parameters. In order for the prosecution to sustain a charge of receiving, it must prove that the property in question was stolen. They must also prove that the accused then received it, and the accused must have known that such property was the proceeds of a theft. It was said in Zimbi David v Yapu David [1988] PNGLR 178 that, the element of theft may be solely proved from an accused's admissions if the circumstances of receiving the stolen items are such that inferences may be drawn that the property was stolen. A receiver may not be an accessory after the fact, but in Papua New Guinea a receiver is an accomplice and an accused could be charged and put on the same indictment as the principal offender: The State v Amoko-Amoko [1981] PNGLR 373.

There is no evidence to show who was the owner of the goods. There is no evidence either to show if the accused at that time knew that the goods were stolen. The fact that he said a man had given him some rice, does that fact qualify the element of knowledge or could it be inferred from that fact that the accused must have known where the goods were taken from, whether from a simple theft or an armed robbery or why was it that the accused was given this rice.

There is no mention on the evidence why the accused was given the three packets of rice. It could be because the person by the name of John was his friend or it could be for some other reasons. Or did the giver tell the accused that the goods he was giving to the accused were stolen from the armed robbery. It was also said in R v Angie Ogun [1969-1970] PNGLR 36 that, the guilty knowledge must be had at the time of receiving the goods and as was stated in that case, innocent receipt followed by fraudulent appropriation does not amount to receiving.

As I said earlier, in order for the court to draw an inference about the accused's guilt on an alternative charge, the evidence must clearly establish the elements of receiving. There is evidence by the State that John the man from Sepik gave him those packets of rice but would that be sufficient to form an inference of guilt always bare in mind that such inference ought to be reasonable and must rest upon something "more than mere conjecture".

In conclusion, I ask the following questions. Can the accused be found guilty on the charge of armed robbery on the basis of the State's circumstantial and identification evidence? I answer that question in the negative. Then of a possible alternative charge of receiving stolen property, can the accussed be found guilty? I must answer the question in the negative as well as I find that the elememts of receiving have not been made out and therefore the accused must not be found guilty. I find the accused not guilty and I must acquit him accordingly. He can now be released from custody forthwith if he has no further charges against him.

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