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State v Gore (No 2) [2004] PGNC 124; N2644 (23 August 2004)

N2644

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. 394 of 2002

THE STATE

-v-

ATAU GORE (No. 2).

Lae: Manuhu, AJ

2004: August 12, 13, 16, 17 & 23

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Attempted robbery – Identification – Alibi – Credibility of witnesses.

Cases cited:
Browne v. Dunn (1893) 6 ER 67.
The State v. Ogadi Minjipa [1977] PNGLR 293.
State v. Thomas Gitai Bawai (2000) N2074.

Counsel:

Mr. J. Pambel, for the State.
Mr. T. Gene, for the Accused.

23rd August, 2004

MANUHU, AJ: The accused, Atau Gore, stands charged on indictment that he, on 27th October, 2001, at 3 Mile, Lae, stole from Suase Vanbruggen ("Victim") with threat of violence monies in the amount of K150.00 in cash the property of the said Vanbruggen. Following a no case submission, the charge, pursuant to s. 4 of the Criminal Code ("Code") was reduced to the offence of attempted robbery under s. 387.[1]

The prosecution alleged that at or around 9.30am on Saturday 27th October 2001, the victim was driving a "mini Dyna" towards Three Mile when a man, armed with a home made gun, ran onto the road and forced him to stop. The gunman then approached the victim and forcefully took the car keys. He then demanded money but the victim did not have any money to give away. At this time, the accused approached the vehicle and was demanding money from two passengers seated at the back. As this was happening, a Guard Dog Security vehicle pulled up at the back and a security guard came out. When the accused and the gunman saw this they tried to flee from the scene. The accused was chased by the guard and was apprehended and handed to police.

The accused has raised the defence of alibi and identification. Identification and alibi aside for a moment, it must still be proved beyond reasonable doubt that there was indeed an attempt to rob the victim.

In that regard, I accept the victim’s evidence that on the day in question, he was driving a mini Dyna into Lae City with two passengers seated at the back and a child in the cabin with him. As they approached Three Mile, a gunman rushed onto the road and forced the vehicle to suddenly stop. The gunman then approached the victim, grabbed the car key, and demanded money. The victim said he did not have money. At that time, another accomplice approached the two passengers at the back of the vehicle and also demanded money. While that was happening, a Guard Dog Security van pulled up and a security guard came out of it. The two men, upon sighting the security van and guard, decided to flee from the scene of crime.

From this evidence, the crime of attempted robbery had been committed. Under s.387(1) of the Criminal Code, a person who assaults a person with intent to steal anything and immediately before or immediately after the time of the assault uses or threatens to use unlawful violence to any person or property in order to obtain the thing intended to be stolen is guilty of attempted robbery. Under s. 4 of the Criminal Code, "when a person, intending to commit an offence, begin to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the crime."

In the given circumstances, the only logical and practical conclusion a reasonable man can draw is that the gunman and his accomplice intended to steal from the victim and the passengers. This is evident from their demand for money from them. In furtherance of this objective, the gunman and the accomplice employed unlawful means, threats and intimidation upon the victim and the passengers. Nothing was taken only because of the arrival of the Guard Dog Security vehicle and the security guard’s appearance. The intention to steal is thereby established.

Counsel for the accused submitted that it has to be proved that there was intention to steal K150.00 or any other specific property. He cited the case of State v. Thomas Gitai Bawai[2] in support of this argument. In that case, the prisoner tried to steal a money bag but did not succeed. The charge was reduced from arm robbery to attempted robbery. In this case, as I understand it, it is argued that the victim did not have K150.00 or any money on him for the robbers to take. In other words, the robbers were not attempting to steal any specific money. They were only hoping to find money upon the driver and passengers.

With respect, property identification is not required in an attempted robbery charge. The minimum requirement under s.387 is the intent "to steal anything" as opposed to intent to steal a thing. The latter is specific but not the former. Thus, in attempted robbery cases, unless possible, as in State v. Thomas Gitai Bawai[3], it is not necessary to specify any property, especially if the act of stealing is absent or had not materialized.

In this case, therefore, it is sufficient that the victim and the passengers were subjected to threats of violence and intimidation by the gunman who, with the accomplice, demanded money from the victim and the passengers. I am thus satisfied that both men were acting together; and, pursuant to s. 7 of the Code, would be equally guilty of attempted robbery.

This means that, in relation to the accused, the most pertinent question is whether he was involved in the attempted robbery. This question attracts all the evidence on identification and alibi for consideration.

The prosecution has called two witnesses, namely, the victim, and Cletus Katia, the security guard. The record of interview was tendered by consent. The accused gave evidence for himself and was assisted by Cathy Tony, Rose Walkep and Nori Nani. My impression of the witnesses’ demeanour and credibility are as follows.

The Victim

I find this witness to be impressive in his identification of the accused. It was broad day light at that time. He saw the accused through the rear vision mirror and noted the type and colour of the shirt he was wearing. He described the colour as yellow with stripes. When the accused was later apprehended and taken to the scene, the victim confirmed his identity and shirt and handed him to police. I accept all of his evidence.

Cletus Katia

This is the security guard whose reaction, in immediately running after the accused, was spontaneous and natural. He had no personal interest in the accused or the victim. This witness was essentially impressive but not as smart as the first one. For instance, it could not have taken him forty minutes to apprehend the accused. Forty minutes is too long. If you spread out forty minutes of running at a very conservative 200 meters per minute, the security guard would have ran a distance of 8 kilometres, which, in the circumstances, is not possible. This, however, does not discredit his evidence that he apprehended the accused whose identity was confirmed by the victim at the scene.

The Accused

The accused exhibited confidence when he gave evidence but I cannot be sure if he is telling the truth. First, he could have explained himself properly when he was interviewed but he chose not to. His answers in the record of interview were mere denials. Secondly, he contradicted himself on the location of his apprehension. He said in this record of interview that he was apprehended in the Catholic premises. In his evidence, he said he was apprehended at the betel nut mini-market.

Thirdly, I have the impression that the accused capitalized on the death of Cletus Katia’s colleague, Patrick Samba, who would have been a witness in this case. The accused heard of Samba’s death during Katia’s testimony. During cross-examination of Katia, nothing was raised about Samba’s participation in the apprehension of the accused. The accused, on the other hand, said Samba used a gun to hit him on the head. Defence counsel did cross-examine on Katia attempting to hit someone who was protesting about the accused person’s apprehension but did not cross-examine the witness on the accused being hit by Samba with the gun butt.

All lawyers should know the celebrated principle in Browne v. Dunn[4], which was applied in The State v Ogadi Minjipa[5], which is essential to an effective defence of a case. The purpose of cross-examination is, "first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and, secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such a party."[6] In this process, and also by reason of the need to be fair, the version of facts relied upon by the accused should be put to the appropriate prosecution’s witness or witnesses. Failure to proceed in this manner may result in a judge having the impression that the new line of evidence by the accused and his witnesses is a recent invention. That is the impression I had when the accused began describing how he was assaulted by Samba with the butt of a gun which was different to what was raised in cross-examination. Accordingly, I do not believe him.

Nori Nani

This witness appears to me to be under some form of pressure. He took his time when answering questions and seemed confused. I cannot conclude with confidence that he is telling the truth. For instance, according to the accused, he had consumed seven bottles of beer and had the eighth with him when he went out of his house to buy beetle nut. Despite his denial, he must have been drunk by then and his drunken state and the bottle of beer would have been obvious to Nani. It is, therefore, difficult to believe that Nani could still remember the accused buying beetle nut from him with a K50.00 note but he could not remember that the accused had a bottle of beer in his hands. Nani also gave evidence on Patrick Samba’s participation in the apprehension which, as I have found, must have been a recent invention. I do not believe Nani.

Cathy Tony and Rose Walkep

These witnesses gave good evidence but I find that there was a critical moment when the accused was not with them. The attempted robbery took place at the same time when the accused was supposedly away to buy beetle nut. Cathy and Rose did not see where the accused went and what he did when he was sent out. I note also that these two witnesses are related by marriage to the accused. Consequently, where there are inconsistencies, I am inclined to prefer the victim’s version. For instance, the correct colour of the shirt the accused was wearing at that time is as stated by the victim and not the colour mentioned by Cathy and Rose. But what is more important is that the accused was not with them when the attempted robbery took place.

The victim’s evidence remains ultimately uncontradicted. The accused raised the defence of alibi but he was not that far from the scene of crime. The house he was in was about 100 meters to the scene of the crime. The attempt robbery took place when he was supposedly out to buy beetle nut while under the influence of liquor. He had consumed seven bottles of beer and I have no doubt that those seven bottles of beer were enough to generate excitement and courage in him. The accused demonstrated that courage when he took his bottle of beer into public view when he must have known that drinking in public place is an offence.

I find that after he intoxicated himself, the accused proceeded onto the main highway and joined the gunman to stage the failed armed robbery. He was the second person who approached the passengers at the back of the mini Dyna and demanded money from the passengers.

In the circumstances, I am satisfied beyond reasonable doubt that the accused is guilty of attempted robbery.

Verdict : Guilty of attempted robbery
_________________________________________________________
Lawyer for the State : Public Prosecutor.
Lawyer for the Accused : Paraka Lawyers.

^[1] See judgment on no case to answer submission.
^[2] (2000) N2074.
^[3] Supra.
^[4] (1893) 6 ER 67.
^[5] [1977] PNGLR 293.
^[6] Cross on Evidence, 2^nd Australian Edition, JA Gobbo, David Burne & JD Heydon, Butterworths (1984).