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State v Morgan [2007] PGNC 152; N3383 (25 July 2007)

N3383

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 739 & 740 of 2006

THE STATE

-V-

KAIRI MORGAN & GEORGE MIKE

Waigani: Kandakasi, J.
2007: 11th, 13th, 16th, 17th and 25th July

DECISION ON VERDICT

CRIMINAL LAW- Verdict – Armed gang robbery on a street – Accused involvement and commission of the offence only issue for trial – No direct evidence of accused committing the offence – Accused admit to related charge of unlawful use of motor vehicle –No dispute, vehicle used by accused, same vehicle stolen in the armed robbery – No reasonable explanation for accused use of vehicle – Only available and reasonable inference from available evidence point to guilt of accused – Guilty verdict returned.

EVIDENCE – Acceptance or rejection of evidence dependant on credibility of witnesses and their evidence – Logic and commonsense do play major part in acceptance or rejection of evidence – State evidence found credible – State’s evidence accepted - Defence evidence inconsistent with logic and commonsense - Defence evidence rejected.

PRACTICE & PROCEDURE – Accused charged with two counts arising out of the same set of facts – Armed robbery and unlawful use of motor vehicle stolen in the alleged robbery – Guilty plea to one offence – Appropriate cause – Defer acceptance or rejection of guilty plea until after trial and decision on the charge denied – Rationale to avoid trial judge being influenced by what might be in the hand up brief.

Papua New Guinea Cases Cited:
The State v. Cosmos Kutau Kitawal & Anor (No.1) (15/05/02) N2266.
The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528.
Paulus Pawa v. The State [1981] PNGLR 498.
Vaii Rocky Maury v The State (20/07/01) SC668.

Overseas Cases Cited:
R. v. Coney ([1882] UKLawRpKQB 30; 1882) 8 Q.B.D. 534.

Counsel:
S. Luben, for the State.
L. Siminji and R. Aupae. Kapi, for the Prisoner.

25 July, 2007

1. KANDAKASI J: The State charged you with two charges, namely armed gang robbery contrary to s. 386 (1) and (2) (a) and (b) and unlawful use of motor vehicle contrary to s. 383 (1) of the Criminal Code. You pleaded guilty to the latter charge and pleaded not guilty to the former. In relation to the charge, you denied, you claimed that although, you were at the scene of the crime and did use the vehicle that was stolen in the armed hold up, you were not involved in its commission. That required the State and you to go into evidence after which you argued that the State failed to establish against both of you the charge of armed robbery beyond any reasonable doubt. The State argues to the contrary.

Relevant Issues

2. These gave rise to the following issues for this Court to deal with:
   
   • (a) What is the correct procedure to adopt with regard to the further conduct of the proceedings when an accused is charged with two offences out of the same set of facts and he pleads guilty to one of the charges and denies the other?
     
   • (b) Has the State established beyond any reasonable doubt that you were involved and did commit the offence of armed robbery as alleged by the State?
     

Correct Procedure

3. I deal with the first issue first as it is the easiest to deal with. Neither of the counsel was able to assist me with any authority on point as to the correct procedure to follow when an accused pleads guilty to one or more charges arising out of the same set of facts and denies others. I considered it appropriate that I should not proceed to deal with the rest of the process following your guilty pleas to the charge of unlawful use of motor vehicle. The main reason for this was that, I feared that, if I proceeded with the rest of the procedures which include a consideration of the evidence against you in the form of the District Court depositions, I could be influenced in my decision in relation to the charge of armed robbery, which you denied and arise out of the same set of facts. If you did not have the other charge against you or if you also pleaded guilty to that charge or if another judge was to deal with the other charge, I would have proceeded to consider the evidence against you in relation to the unlawful use of motor vehicle charge.
   
4. In the circumstances, I considered it appropriate that, I should defer the rest of the process in relation to your guilty pleas to the charge of unlawful use of motor vehicle until after your trial in relation to the armed robbery charge. I also intimated that it would be appropriate at that stage to decide whether there is enough evidence to support the charge of unlawful use of a motor vehicle and your guilty pleas, before either accepting or rejecting your guilty pleas. That consideration and decision should come only after a determination of your guilt or innocence in relation to the charge you denied, again to avoid any undue influence by what the Court might consider in relation to the admitted charge. With this, I turn to a consideration of the second issue.
   

Were you involved and did commit the offence?

5. As noted earlier, I note that, a number of important facts are not in dispute. First, there is no dispute that an armed hold up and robbery by a gang of 5 men or boys took place between 3 and 4 pm on 3rd February 2006 at Sabama, in the National Capital District. Secondly, there is also no dispute that, you were close to the scene of the armed hold up and robbery. Thirdly, there is no dispute that you got into the vehicle a Mazda Bravo Double Cabin, registration number ZGI 951, a property of the State. Fourthly, there is no dispute that, the armed gang forcefully took the vehicle from a John Sipi who was then in lawful possession and control of the vehicle. Fifthly, there is no dispute that you got on the vehicle at the invitation of the armed gang. Sixthly, there is no dispute that the second State witness and you two have lived in the same area for the whole of yours and her life. Finally, there is no dispute that, the armed gang ran the vehicle off the road, resulting in serious damage to it.
   
6. The State called two witnesses, the lawful driver of the vehicle at the time of the armed gang robbery and a female passenger present with him at the time of the robbery. The first witness was John Sipi. He was the driver of the vehicle. His testimony is that, he drove to Sabama, Horse Camp area to drop off his workmate, the second State witness Kori Lei. He came to a stop not far from the junction where the youths were to drop off Kori Lei. As soon as he did that, suddenly, a youth or boy stopped Kori Lei from opening her door and getting out and asked her for some money to buy beer. The witness then turned his mind to the safety of his two sons who were with him in the vehicle at the time. Not long after, another youth went to the witness’ side and pointed a loaded home made gun at him while the youth who went and asked money from Kori Lei pulled the key of the witness and the witness was pulled out of the vehicle. The youths then robbed him of his wallet which contained K200.00 cash, his bank card and his driver’s license. Before the robbers took the vehicle away from him, he sent his sons out and later joined them as the robbers drove the vehicle away. He managed to get to the Badili Police Station and reported the robbery.
   
7. The second State witness corroborated the first witness and further testified that, she saw both of you at the scene of the robbery with the other offenders and get on the vehicle. She confirmed that she knows you well, having lived in the same area for a long time. She therefore had no difficulty identifying you two. She identified the person that went and asked money from her as Ori Morgan. She also testified to seeing, George Mike, you getting into the crew side in front of the vehicle, while, Kairi Morgan, you got into the backseat with others and you all drove off.
   
8. Your respective records of interview went into evidence for the State with your consent. Importantly, in some of your questions and answers, you restated and confirmed what the State witnesses told the Court. More importantly, you admitted to being with a group of boys drinking home brew. You also confirmed Ori Morgan confronting Kori Lei for money and later taking the vehicle from the driver. In your record of interview, Kairi Morgan, you identified the other youths that were involved by name.
   
9. In your defence, both of you tried to impress the Court with a claim that, you were well away from the scene of the offence and that a corrugated fencing blocked your view and only got into the vehicle because you were called or invited to do so by the gang. The Court party took a visit to the scene and you indicated where you two were. I noticed that, if indeed you stood where you indicated, you could not have seen the robbery but could have heard the commotion because it was happening not far from where you were. It therefore, calls into question, just how did the robbers got to calling for you two to get on if you were not part of them? The untested evidence is that, after the robbery, the robbers drove the vehicle into Horse Camp. It follows therefore that, the gang could not have stopped for you to get on if you were not part of them.
   
10. Further, you claimed that, you did not know the names of the others involved in the robbery. Kairi Morgan, you identified the other offenders in your record of interview with the police. This is not surprising because of the undisputed fact that, you all come from the same area. However, in your testimony before the Court, you tried to demonstrate that your naming of the other youths was based on what you were told. Unfortunately, you did not make that clear in the record of interview. Besides, your record of interview is in evidence for the State with your consent. I find this was a belated attempt by you to avoid the obvious inference that is open to this Court, which is, you were both part of the armed gang that conducted the armed hold up and robbed the driver of the vehicle he was lawfully in control of and of his personal properties namely his wallet containing K200 cash, his bank card and driver’s license.
    
11. I do not find your claims credible. As I said in a number of cases for example as in The State v. Cosmos Kutau Kitawal & Anor (No.1),[1] logic and commonsense do play a very important role in determining the credibility of a witness and his evidence. I proceeded on the authority of cases like that of The State v. Gari Bonu Garitau and Rossana Bonu.[2] In that case, the National Court convicted the defendants of murder applying a logical and commonsense approach, even when there was no evidence directly showing that the defendants had killed the deceased. The Court found that the defendants were in a position to provide a reasonable explanation for the appearance of a badly wounded deceased body in their house, but they did not. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal.[3]
    
12. A case that comes, in my view, a bit closer to your case, is the case of Vaii Rocky Maury v. The State.[4] In that case, the Appellant denied involvement in a double armed robbery, resulting in a shoot out between police and the gang after the second robbery. He claimed that, he was on the side of the road when he just stopped a vehicle that came by, which later turned out was a stolen vehicle. In rejecting his claim, the Supreme Court held:
    

"There is no evidence of what exactly the appellant did apart from his presence in the vehicle. He got into a vehicle that was stolen the previous day by three men one of which was the appellant's co-accused. The appellant claims he did not know about this fact. A person he did not know but stopped for him and drove the vehicle. It was then driven to Jasmire Supermarket and was use to rob and get away from the scene. At no stage, the appellant tried to disassociate himself from the robbers or those who were using the stolen vehicle. There was an exchange of gunfire between the police and those in the vehicle. The appellant gave no evidence of not being aware of the presence of any gun both during the robbery at Jasmire Supermarket and the whole time he was in the vehicle both before the shot out with the police to get away after the robbery and after the robbery.

... The undisputed facts gives us the clear impression that, those who were in the vehicle had come with a plan to carry out a robbery and escape in a stolen vehicle. They were armed with guns and were prepared to use them to get away after the robbery. Given that, it was not possible and indeed common sense dictates that the appellant could not have been picked up in the way he describes.

Robbers in most cases act with people who have set out to commit such an offence together. They do not normally take on other and innocent people unless abducted or otherwise taken against their will. There is no evidence of that being the case for the appellant. Robbers also do not prefer taking potential witnesses along for fear of being caught by police and charged on their evidence. In some cases, potential witnesses get killed or are threatened. Non of these was the case of the appellant. Further, it is hard to imagine how the appellant could sleep without knowing what was happening including, the exchange of gunshot between the police and the gang he was with. If indeed he was an innocent third party, he could have been taken as a human shield in the gunshot exchange with the police or something like that but the evidence does not go that far.

Simply put, the appellant's explanation to police per the record of interview defies any logic or common sense. The only inference open to the trial judge was that, the appellant was a willing participant in the commission of the offences for which he was charged and convicted. Hence, he was correctly found guilty and convicted of the offences he now complains of."

13. As the Supreme Court said in that case, the mere presence of a person at the scene of a crime is not in itself sufficient to infer guilt. Instead, there must be both presence and a wilful or intentional encouragement for the commission of the offence. Further, the law also allows in appropriate cases for convictions to stand, even where, there is no direct evidence connecting an accused person to the commission of an offence, if the circumstances of the case dictate an inference only of the guilt of the accused beyond any reasonable doubt. This is the principle that is usually applied in a case where the State's case is entirely circumstantial.
    
14. Where the State’s case rests mainly on circumstantial evidence, the jury in the case of a jury system or a trial judge as in our case, cannot return a verdict of guilty unless, the circumstances are such as that they support only one rational inference and that is the guilt of an accused person beyond any reasonable doubt and not a mere conjecture.
    
15. In your case, I find that the same things that were said and or observed in the Vaii Rocky Maury case can be said and observed here. There is no rational and reasonable explanation for the robbers calling for you two to get in the stolen vehicle. If indeed you were not part of them pursing a criminal purpose, namely conducting an armed hold up and robbing the vehicle, what was the reason for them calling for you to get on and why did you get into the vehicle which you had reason to know was stolen. You had no gun or any other threats levelled against you if you failed to get into the vehicle. Yet you got into the vehicle. The evidence is that, there were five youths involved. Kairi Morgan identified five persons in the vehicle, including both of you. One of you got into the crew side front seat while one of you got into the back seat inside the cabin of the stolen vehicle. I do not find it convincing that, some other people carried out the robbery and then invited one of you into the front crew side seat and one of you at the back seat in the cabin despite playing no part in the robbery if your claims are true.
    
16. On the whole, I find that the overall weight of the evidence before me, which are essentially uncontested, support only one rational inference and that is that, both of you are guilty on the charge of armed robbery beyond any reasonable doubt and this is not a mere conjecture. Accordingly, I return a verdict of guilty against both of you on both the charge of armed robbery and unlawful use of motor vehicle. I order that you continue to be remanded in custody awaiting your sentence.
    

___________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Accused

^[1] (15/05/02) N2266.
^[2] [1996] PNGLR 48.
^[3] See Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.
^[4] (2001) SC668