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State v Erick [2006] PGNC 41; N3023 (22 February 2006)

N3023

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS. 515 & 516 OF 2004

THE STATE

-V-

ROBIN ERICK & EMIL BASILIO

KOKOPO: LENALIA, J.
2006: 14th 22nd February

CRIMINAL LAW – Armed robbery – Not Guilty Pleas - Criminal Code, s.386 (2) (a) (b) (c) Ch. No. 262.

CRIMINAL LAW – Trial – Practice and Procedure – Evidence by witnesses depositions – Undesirability of – Plea of involuntariness in record of interview – No Notice of voir dire – Unsigned records of interview tendered and rejected.

CRIMINAL LAW – Trial – Evidence – Rights of an accused person – Constitutional right to a fair trial – Constitution s.37 (1) (e) (f) (6) – Defence of accused and his/her right to call evidence – Criminal Code s.570 (1).

CRIMINAL LAW – Evidence – Where State choose to tender documentary evidence only – Admissions by accused in record of interview – Failure by prosecution to prove essential elements of charge cannot be cured by admissions.

PNG Cases cited:
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Delga Puri & Tapri Maip [1982] PNGLR 398
The State v Tom Morris [1982] PNGLR 493
The State v Jenny Kebana Peter (2005) N2813
The State v Roka Pep (No.2) [1983] PNGLR 19
State v Aige Kola [1979] PNGLR 620
State v Lasibose Kuriday (1981) N300
State v Wally Kason (1996) CR.No. 1481 of 1995
Fred Eiserman v Nanatsi [1978] PNGLR 457
State v Eddie Sam (2004) N0. 2521
John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1888-89] PNGLR 263
State v Yakoto Imbuni & 4 Ors. [1997] PNGLR 426
State v Anis Noki [1993] PNGLR 426

Other cases cited:
Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 W.L.R. 965
Surujpaul v R [1958] 1 W.L.R. 1050

Counsel:
Mr. L. Rangan, for State
Mr. P.Kaluwin, for Accused

22nd February 2006.

LENALIA, J: The two accused pleaded not guilty to one count of aggravated armed robbery contrary to s.386 (2) (a) (b) and (c) of the Criminal Code, Ch.262. The trial of this case was set to Monday 13th to Wednesday 15th last week. After the charge was read and put to the two accused when they were asked to plea, the two accused entered not guilty pleas. Before the trial was commenced, Mr. Rangan of counsel for the prosecution indicated that, no witnesses would be required by the defence to be cross-examined and therefore, the defence did not want to challenge the documents which the prosecution wanted to tender.

Mr. Kaluwin of counsel for the two accused indicated that though there was no Notice of an expected voir dire trial, the money the subject of the robbery was never stolen and the least the prosecution could have done was to indict the two accused for attempted armed robbery.

The following documents were tendered by consent:

- Statement by witness Elias Makap "A’
- Statement . .. Salomi Makap "B"
- Statement . .. Joe Kinuli "C"
- Statement . .. Martin Pukauliu "D"
- Statement . .. Harry Dale
- Record of interview with Robin Erick "F1 & F2" for Pidgin Original and English version.
- Record of interview with Emil Basilio "G1 & G2" of Pidgin and English translation.

Evidence by the State in this case is this. On 22nd day of December 2003 between 10 and 10.30 am at the Garamut Buying Point situated on the junction to Malakuna No.4 and Warongoi, the victim in this case Peter Embia had just been dropped off by a company vehicle at the buying point to set up in preparation for that day.

He organized the table and set up a few other things. As he was doing this, one of the three men slapped his shoulders. As he looked over his shoulders, he saw three men with one of them pointing the bush knife at him and got Peter’s radio and asked, "Where is the money".

Some seconds later, two other men came also demanded for money. The two men who came later wore wool hats. Being very frightened for his life, Peter took the bag of money containing K800.00 and gave it to the three armed men. The victim himself did not identify any of those three men. Peter gave a shout but, after the three men had taken the money, they fled into the cocoa and coconut plantation.

The next two witnesses statements that of Elias Makap and his wife Salome Makap is almost similar. The couple was in their residence in the morning on the date of this robbery. Their residence is situated at the back of the buying point where the robbery took place. After Elias heard Peter calling out for help, he ran to where the buying point is but the robbers already fled. He did not see nor identify anyone of them.

Like Peter, Elias Makap tried to chase the three men but he got frightened because he saw one of the three men threw one hand-grenade to the other and Elias gave up the chase. In fact as soon as they gave up the chase, they all heard a big explosion. The hand-grenade exploded and there is some evidence that, blood stained soil and leaves were seen soon after the explosion.

Salome Makap is married to Elias Makap said just a little time before the robbery took place, she saw three man wearing wool caps carrying ‘pukpuk’ bush knives walking past toward the Garamut buying point. She said, she observed one of them to be Emil. Unfortunately, she does not give the other name of Emil. As well as that, her statement does not reveal the distance from which she stood and identified Emil. I shall return to her evidence.

Joe Kinuli was employed by Bailu Plantation at the time of the robbery. Joe says in his statement that between 6am and 7am he was conducting a normal routine security check when he met three young men standing on the side of the main road. He did not say anything to them but he identified one of them whom he referred to as Emil Basilio. Joe went to his house, had his breakfast and when he returned taking the same route, he saw the same three men again still standing on the same location where he had seen them one or two hours before.

Joe said, he spoke to the three youths and asked them why they were hanging around like that. Joe said, Emil answered him by saying that; they were waiting for some boys to go and prepare local jungle juice. Joe left the three men there and continued to conduct routine patrol around the plantation perimeters. Joe was not at the scene of the robbery. Sometime latter, he heard an explosion. He ran up to the main road then to the buying point where he found Elias Makap and others talking about the robbery.

Marita Pukauliu is a villager from Malakuna No.4 village in Kokopo/Vunamami Local Level Government area. His house is opposite the buying point where the robbery took place. He only heard people shouting that there was an armed robbery and not long after that, he heard a loud bang. When he ran into the cocoa and coconut plantation, he saw a pool of blood on the ground and he ran back as he too was afraid. Obviously, Marita did not identify anyone of the three men who conducted the robbery that morning.

The statement of Orim Konge was objected to by the defence counsel. Orim Konge was the policeman who conducted the record of interview with the two accused. He is the policeman whom the defence wanted to cross-examine in relation to the reason why the two accused declined to sign their records of interviews. Orim Konge was not called by the State.

Only the statement of Harry Dale, the corroborator in this case was tendered. He says he was present throughout the time the record of interview was conducted. He further said, before the record of interview commenced the two accused were each and severally at the time and various dates they were interviewed were given their constitutional rights. He said the two accused were co-operative and they each admitted to what part they played in the armed robbery. Harry also said after the record of interview was completed, the two accused at whatever dates they were interviewed refused to sign their individual records of interviews.

After tendering all the records of interviews and the statements I have discussed above, the State Prosecutor closed the prosecution’s case. Immediately after closure of the State’s case, Mr. Kaluwin of counsel for the two accused submitted that, instead of the two accused giving their evidence and call their witnesses, he wanted to make a submission of no case to answer. In his submission, Mr. Kaluwin said his clients have no case to answer as there is no evidence to establish some essential elements of the charge and to show if the two accused were responsible for committing the crime they are charged with.

The Law.

There are two tests which the court will consider at this stage of this trials as established by the case of The State v Paul Kundi Rape [1976] PNGLR 96. The first of those two tests is, is there some evidence of the essential elements of the charge before the court now which would either prove the elements directly or to enable the court to infer its existence.

As the case law authorities say, this question can only be decided at the end of a trial both for the prosecution and the defence. In other words, it would be wrong for this court to decide now after the prosecution case has been closed if I am satisfied beyond reasonable doubt of the guilt of the two accused: The State v Delga Puri and Tapri Maip [1982] PNGLR 395, see also The State v Tom Morris [1981] PNGLR 493.

The second question I will ask myself is, although there is a case to answer, is there sufficient evidence on which this court could lawfully convict the two accused? As Justice Cannings said in The State v Jenny Kebana Peter (2005) N2813 at 4 "If the answer to question 2 is no, i.e. there is insufficient evidence, the trial judge has a discretion to either not call upon the accused (i.e. enter an acquittal) or order the trial to proceed. If the answer to question 2 is yes: the trial must proceed". (See also The State v Roka Pep [1983] PNGLR 19, The State v Aige Kola [1979] PNGLR 620, The State v Lasebose Kuriday (1981) N300.

Bearing in mind the principles stated in the above cases, where does the State’s case stand in so far as the admissions by the two accused are concerned in their records of interview. First the two accused chose not to plea guilty to being principals in the whole enterprise. I distinguish the evidence of this case from that of The State v Wally Kason (1996) CR No.1481 of 1996 where the accused was convicted upon evidence being tendered by the prosecution including the record of interview. Later the issue of unfairness was raised. There was no evidence to support the accused’s suggestion of unfairness. I note the only issue there was one of unfairness in how the record of interview was conducted.

In Eiserman v Nanatsi [1978] PNGLR 457 a case of knowingly harbouring prohibited immigrants Wilson, J said that, absence of proof of essential elements of an offence cannot be cured by admissions made by an accused. In the case before me, there are two issues involved. The first one involves the issue of unfairness during the record of interview. I followed Los,J in Wally Kason’s case in The State v Eddie Sam (2004) N2521 where the accused raised the issue of unfairness in the record of interview saying he never said what was recorded in the record of interview. I found him guilty on nine alternative charges of incest. He was originally charged for charges of raping his daughter.

As noted, the only issue in Wally Kason’s case (supra) was one of unfairness as to how the record of interview was obtained. That was the same issue I was faced with in the case of The State v Eddie Sam (supra). But in the case before me, it is not only the issue of some alleged breaches pursuant to s.42 of the Constitution, the second issue relates to the question of identification.

It was submitted on behalf of the two accused that, the two accused had not been properly identified. For this reason, I must remind myself that there are dangers inherent in eyewitnesses’ identification evidence. I apply the principles stated by the Supreme Court in John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1988-89] PNGLR 253 which say that recognition of someone is more reliable than identifying a stranger. Even where a witness says that he or she knows the accused well or even a member of his or her own family he may make a mistake in trying to recognize a person. When the quality of identification is good, the court can safely assess the value of such identification evidence even where there may be no other supporting evidence: see John Beng v The State (supra), see also The State v Yakoto Imbuni & 4 Ors. [1997] PNGLR 400, The State v Anis Noki [1993] PNGLR 426.

According to the evidence so far tendered, the victim himself Peter Embia never identified the two accused. The only reference to identification evidence is made by the witness Salome Makap. She said she identified one of the three persons as "Emil". Salome does not give the other name nor did she give any indications as to how far away she stood when she saw the man whom she referred to as Emil. As well as that, she does not give any indications as to how she came to know the accused Emil or if she ever knew him before she saw him on the date of this offence.

I find that, on the part of the prosecution, such piece of evidence was so crucial to the State’s case. However in order for such piece of evidence to be credible, it ought to be qualified under the principles relative to identification evidence which I will discuss a little later.

The second person who mentioned the first accused is Joe Kinuli. He said he saw "Emil Basilio" standing on the road side. Joe does not however give the distance at which Emil Basilio and his two friends were seen standing on the road side from the Garamut buying point.

As already noted, I distinguish the evidence in the instant trial from the case of The State v Eddie Sam (supra) and the earlier case of The State v Wally Kason (supra) since the only issue in those two cases was one involving the impropriety of acquiring the defendants’ admissions in the record of interview.

In the circumstances of the instant trial, although the statements of the witnesses have been tendered, I do remind myself of an essential rule of evidence which states that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that such statement was made: Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 W.L.R. 965.

Though the evidence of the present trial is not exactly the same as in the above case, I am of the view that such rule as stated by the Privy Council in the case cited above should apply to cases where the prosecution has not call the required witnesses and where the State has tendered statements seeking to prove essential elements of an offence charged. I am more inclined to follow what the court decided in Fred Eiserman v The State (supra) which court said that absence of proof of essential elements of an offence cannot be cured by admissions made by an accused person. Wilson, J in that case followed the common law case of Surujpaul v R [1958] 3 All E.R. 300 for the same reasons.

The principle stated in the Subramaniam case should be adopted in such cases as the instant trial where pluralities of legal issues are raised. In the trial before me, the issue of identification has been appropriately raised in the no case submission. The second issue is the one questioning whether, the records of interviews could be accepted and relied on the admissions made by the two accused when they were interviewed by the Police Investigating team.

I note here also that the two accused have not filed notices of either alibis or voir dire and as the rule of law stands, any belated alibis or voir dire or lack of it would be taken to mean, an accused defence of alibi or voir dire cannot be accepted. It is rather suspicious why the two accused did not sign the records of interview. To the court that may suggest impropriety on the part of the investigating team. The investigating officer was not called nor were any of the corroborators. The question in relation to how the records of interviews were conducted remains unresolved at this stage.

It is my view that, the decisions in the case of Eiserman v Nanatsi (supra) and that English common law case of Surujpaul v R (supra) do uphold the Constitutional provision for the protection of law as required by s.37 (4) (a) (e) and (f) of that document which requires that a person charged with an offence must be presumed to be innocent until proven guilty according to law. Subsection (4) (a) (e) & (f) are in the following terms:

"(4) A person charged with an offence –

(a) shall be presumed innocent until proved guilty according

to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

......

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution".

Further to the above, s.570 (1) (2) of the Criminal Code complements the above Constitutional provision by saying:

"(1) A person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his lawyer.

(2) A person charged with an offence may, by leave of the court, have his defence conducted by another person who is not a lawyer."

As it is, had it been for the defence of impropriety per se of how the records of interviews were conducted, the court would not accept the two accused allegations for reasons that they had failed to file appropriate notices. However, the prosecution has to overcome the issue of identification. The State has the burden of proving their case to the required standard at this stage and that is to establish to the court that there is a prima facie case against the two accused.

One of the fundamental rights so guaranteed by the Constitution is the right of every person to the full protection of law (s.37). Under s.37 (4) (a) to (f) any person whether a national or non-national is charged with an offence "shall be presumed innocence until proved guilty according to law". To this court this is the very foundation of our legal system.

Should the court infer that there is a case against the two accused? The principles governing reception of circumstantial evidence have been stated in many leading authorities in this jurisdiction.

The principles stated in The State v Tom Morris [1980] PNGLR 493 are that where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party they should favour at the end of the prosecution case and where there are inferences inconsistent with the accused guilt there is discretion to acquit. These principles were applied by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498. I am therefore reminded that, I am only required at this stage to decide if there is a case for the two accused to answer and I am not at all required to determine the two accused’s guilt.

The tests which I am legally required to apply are well settled in The State v Paul Kundi Rape (supra) and The State v Roka Pep (No.2) [1983] PNGLR 287; see also Allan Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131.

Applying the tests laid down in Paul Kundi Rape’s and those in Roka Pep’s case, can it be said in the instant case that, there is evidence supporting essential elements of the offence of armed robbery. I am afraid I must answer in the negative as the technical issue of identification remains unresolved and therefore I must uphold the submission on "no case to answer". The two accused are acquitted. Their bail monies shall be refunded to them.
___________________
Lawyer for State: The Public Prosecutor
Lawyer for Accused: The Public Solicitor