Unreported National Court Decisions
N1624
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 1501 OF 1997
THE STATE
v
JOHN KORE SIRO
Waigani
Batari AJ
9-11 September 1997
15 September 1997
CRIMINAL LAW - Evidence - Robbery - Circumstantial evidence - Proof of.
CRIMINAL LAW - Evidence - Failure of accused to give evidence - Test applied.
Cases Cited:
Paulus Pawa v The State [1981] PNGLR 498
Counsel:
Pambel for the State
P Tusais for the Accused
Trial
The following judgment was delivered on the trial of the accused following his plea of not guilty to the charge of armed robbery.
15 September 1997
BATARI AJ:  The accused has been indicted on one count of robbery pursuant to s. 386 (1) & (2) (a) (b) of the Criminal Code.  It was alleged that on 26 July, 1996 he entered Taurama Pharmacy in the National Capital District, and stole from the shop with actual violence, a Cash Register valued at Five Hundred Kina (K500.00) and Four Hundred Kina (K400.00) in cash, the property of Taurama Pharmacy Pty Ltd.  It was alleged he was armed with a pistol and in accompany of others.
The fact of the robbery was uncontested.  About five (5) persons entered Taurama Pharmacy on the day in question and threatened the shop assistants with a pistol.  When the alarm was raised, they grabbed the Cash Register which held Four Hundred Kina (K400.00) in cash and escaped in a white Toyota Corona vehicle.  The vehicle was later abandoned at Korobosea Village.  Police tracked the occupants down to Kaugere Settlement.  Gun-shots were heard and the accused was seen running across a playing field with a policeman in pursuit.  He was followed to a house where he was apprehended.
The accused has denied his guilt upon arraignment.  At the end of State’s case he elected to maintain silence as he did during the conduct of record of interview.  Mr Pambel has articulated that the failure of the accused to take the witness box should strengthen State’s case.  I have considered this and concluded that the question of what may the tribunal of fact make out of the accused’s failure to testify is sufficiently covered in the case of Paulus Pawa v The State [1981] PNGLR 498 in the judgment of Andrew, J at p. 504:
“I agree with the conclusions of Professor O’Regan in his article, Adverse Inferences from Failure of an Accused Person to Testify 1965 Crim. LR 711, that:
(1)      The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify;
(2)      Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;
(3)      Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case;
(4)      The weight to be attached to failure to testify depends on the circumstances of the case.  Significant circumstances include:
(a)      whether the truth is not easily ascertainable by the Crown but probably well known to the accused;
(b)      whether the evidence implicating the accused is direct or circumstantial;
(c)      whether the accused is legally represented;
(d)      whether the accused has before trial given an explanation which the Crown has adduced in evidence.”
For convenience, I also refer to the principles on circumstantial evidence stated in Paulus Pawa’s case as the evidence against the accused is substantially circumstantial.
State’s crucial evidence against the accused is the pair of keys found on him which it said fitted and opened the Cash Register that was stolen from the Pharmacy.
The evidence of Paul Komboi and Brian Kombe were that they followed the accused to a house where he surrendered.  This was after he was chased across the playing field.  There was however no evidence from the pursuing policeman on the field.  There was also no evidence as to where he originally fled from.  They searched him and found a pair of keys which they took possession of.  The keys fitted and opened the Cash Register which was also recovered and brought to the Police Station, the same day.
During submssions, I raised the propriety of the accused being searched without being told the reason for his detention and or without cautioned.  Because Defence Counsel had not disputed this aspect, it may be assumed that the accused’s detention and subsequent search of his body was in order.  The pair of keys is now in evidence.  I must consider whether or not the evidence sufficiently connects the keys to the Cash Register.
State witnesses say both the Cash Register and the key were recovered on the same day after the robbery.  While the keys were said to have been found on the accused, the Cash Register was said to have been found in a rubbish pit where the vehicle was abandoned.  There is no direct evidence that the Cash Register belonged to Taurama Pharmacy Pty Ltd.  There was however, hearsay evidence, admitted without objection that it was the property of the Pharmacy.  I accept the inference that the Cash Register was the one taken from the Pharmacy in the robbery.
When the Register was brought to the Police Station at Boroko, Constable Kombe said he tried the keys and it worked.  However, he could not recall its condition.  I think he lied on this aspect as other State witnesses say the Register was retrieved in a damaged condition.  I infer from his evidence that the Cash Register had been opened before he inserted the key.  He said he closed the Register, put the key in, turned it and it opened.  He did not say he locked it with the key and again opened it with the key.  Nor, did he say anything about using both keys.  Senior Constable Lawrence Torres said he also tried the keys and they worked.  Initially he stated there were only one lock but later he said there were two locks.  It was obvious that he shifted his evidence after realising that the two keys were different from the other and would unlikely fit the same lock.
The Cash Register, as I have stated was with the police.  For some unexplained reason, it was subsequently returned to the Pharmacy and had since been discarded by the owners.  A crucial evidence was destroyed with the assistant of the police!  This clearly epitomises gross police investigatory blunder.  Police may have deliberately perverted the course of justice in their investigations.  Their action also give rise to suspicions that the evidence which link the accused to the Register keys might have been fabricated.  The keys are in evidence.  What use are they without the Register to support the evidence that the keys were from that Register?  The evidence is now such that I am unable to the hold beyond reasonable doubt that the Keys and the Register were connected.
There were other relevant factors:
(i)       The Register was brought in a damaged state.  There was strong suggestion it was smashed open.  Sergeant Alphonse Arisa described its condition as: “it was all smashed, it was not in normal condition”.  Senior Constable Torres said both sides were dented inward.  The inference is open that the robbers did not have the keys to open the Register and further that even if the key in Exhibit “C” was for the Register, it would most unlikely operate the Register as the locking mechanism would have been damaged or altered when it was forcibly opened.
(ii)      There was no direct evidence that the accused escaped from the abandoned vehicle or was fleeing from it.  The evidence suggested the accused was running towards the general direction of the abandoned vehicle.  I find this strange.  Why would he be running towards the settlement from the opposite direction to hide, when he could have easily done that earlier while fleeing directly towards the settlement?
(iii)     There was no evidence which confirm the accused was the same man that was seen running across the field.  The policeman who chased him has not been called.  There was also no evidence Constables Kamboi and Kombe kept their eyes on him until he entered a house.  Nor was there evidence suggesting he was out of breath or he was sweating from the pursuit when they detained him.
(iv)     There was no evidence on the value of the Register or the amount of money allegedly stolen.  Even if I find a Register was taken as a result of the robbery, its  value and contents would remain matters for speculations only.
It is apparent from these observations that I do not have to draw any adverse inference from the accused’s failure to testify.  The State’s case at the end of all the evidence has been so insufficient in vital matters that I am not convinced beyond reasonable doubt that the accused committed the offence charged.  I find him not guilty and acquit him.  He is discharged forthwith.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: A/Public Solicitor