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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 956 OF 2004
THE STATE
V
YARRAS NAVUS
Kimbe: Cannings J
2007: 21, 22, 23 November
CRIMINAL LAW – trial – armed robbery – attempted armed robbery – accused shot and apprehended by police in vicinity of crime scene – denial of involvement – circumstantial evidence.
The accused pleaded not guilty to two charges: armed robbery of a store and attempted armed robbery, allegedly committed in the same series of incidents. The police shot and apprehended the accused in the vicinity of the crime scene. The State brought evidence that he was armed but otherwise there was no evidence directly linking him to the offences. The State's case relied on circumstantial evidence. The accused gave sworn evidence denying involvement.
Held:
(1) The accused was a member of the group that was chased by the police and was armed immediately before he was shot. However, there was insufficient evidence that any armed robbery was committed so he was found not guilty of count 1.
(2) There was insufficient evidence that any attempt was made to rob the store so the accused was found not guilty of count 2.
Cases cited
No cases are cited in the judgment.
TRIAL
This was the trial of an accused charged with armed robbery and attempted armed robbery.
Counsel
F Popeu, for the State
R Beli, for the accused
23 November, 2007
1. CANNINGS J: A young man from Kumbun village in the Kandrian area of West New Britain, Yarras Navus, is before the court on two charges: armed robbery and attempted armed robbery. He has pleaded not guilty. The armed robbery charge (count 1 on the indictment) alleges that he joined with others in robbing a security guard, Tony Arigam, of K220.00 cash. The attempted armed robbery charge (count 2) alleges that the accused joined with others in assaulting and using physical violence against another security guard, Steven Bill, to overcome resistance to another robbery, which was an intended, not an actual robbery. It is the State's case that the accused committed the offences when he was part of a group that converged on the central business district of Kimbe around midnight on 23 December 2003 with the aim of robbing the Megamart supermarket. The group robbed the first security guard at gunpoint of K220.00, then proceeded to try to rob Megamart and assaulted the second security guard in order to overcome resistance to the planned robbery. Their plan was interrupted by the police chasing the group and in the process the accused was shot.
2. It is agreed that some incidents happened in Kimbe at the date, time and place alleged by the State. A group of people was chased by the police. The accused was shot and apprehended by the police in the vicinity of the scene of those incidents, shortly after they happened.
THE ISSUES
3. What is not agreed are:
OVERVIEW OF EVIDENCE
4. I will address those issues one by one but before doing so I will summarise the evidence presented by the State and the defence. The State relied on:
5. For the defence:
THE STATE'S FOUR EXHIBITS
Exhibits A, B and C are witness statements.
A: Michael Kore is a security guard with KDC Property Security. He says that on Tuesday 23 December 2003 he and Tony Arigam were sitting at the Town Authority office underneath the mango tree. At 11.00 pm a group of about 10 women and 40 to 50 men came towards them. Five men held him up and five grabbed Tony and those men carried him and Tony to the river. The men who held him up had five home-made guns and two iron bars. It was dark and he could not see their faces. He and Tony were punched. His (Michael's) teeth were broken and they took his helmet, torch, bush knife and matches.
B: Steven Bill is a security supervisor with Kabiu Security. He says that on the night in question he and four other security guards were sitting under the tree at the side of the Education Office. Three men came with their faces covered with wool hats and held them up with home-made guns. One of them grabbed another security guard's bush knife and hit them with it. They heard a gun fire and the people who held them up took off. He noticed soon afterwards that a "culprit" was lying down badly injured.
C: Konny Godfrey is a security guard with Kabiu Security. At 11.00 pm on the night in question he was beneath a tree in front of the Education Office with three other security guards including Steven Bill and Michael Kore. Michael and another guard went away to investigate someone who was behaving suspiciously and they were both held up. Konny says that at about 1.00 am he and another security guard were held up by a "boy" who pointed a gun at them, while another "boy" stood at the Education Office, also armed with a gun. He then heard the police open fire. A police vehicle came and about 30 to 40 men and women ran away. He, Konny, picked up a home-made gun used by the raskols and gave it to the police.
Exhibit D is a sketch map prepared by the then investigating officer, Jerry Darius.
STATE WITNESSES
6. They were:
STATE WITNESS NO 1: SNR CONST ALEX TOKOVAI
7. He was part of a pre-Christmas police operation on foot patrol around Kimbe on the night of 23 December 2003. He was the senior officer within his group. Between 1.00 and 2.00 am his group had a brief break, resting at the eastern end of the Education building. Just as they were about to resume operations, one guy came rushing to them identifying himself as a security guard and reporting that there was a big group in front of Megamart. He was about to alert the members of his group who were armed but one member, Const Steven Inne, must have already seen the group as he started to run towards them and fired a shot. He ran after Const Inne, as he was worried that Const Inne might run into an ambush. He saw that there was a group of 30 or 40 people all running from the front of Megamart to the opening between the kai bar and the town authority building. There were a number of children in the group, as young as 10 or 12 years old. The crowd was running towards the opening between the two buildings, trying to escape from the police. Const Inne fired a second shot. Constable Inne was already running when he fired the shot. When he fired the second shot he was near the crowd. He was using a pump action shot gun, a Mossberg. As the last of the crowd was disappearing into the darkness between the two buildings, he saw a figure fall. When he fired the second shot he was near the crowd. He immediately searched the area and found a home-made shotgun only a few feet from where Yarras Navus had fallen, just to the right of the town authority office and the kai bar. Having heard the gunfire, two other officers, Sergeant Suitawa and Const Rangit, arrived in a police vehicle. They picked up the person who had been wounded and took him to Kimbe General Hospital. The wounded person was identified by some of the police officers as Yarras Navus who was wanted in connection with a number of crimes around Kimbe. Snr Const handed the home-made gun to Const Francis Dalman, a forensic officer and crime scene specialist at Kimbe Police Station. On their return from the hospital to the police station, the security guards from Megamart and the Education Office handed in another home-made gun and two iron bars. They were also handed to Constable Dalman. The case was handed to Constable Jerry Darius. Constable Darius is now deceased having been shot dead by criminals in Kimbe two years ago. He remembers the person that was taken to the hospital and identified him as the accused.
8. In cross-examination Senior Constable ToKovai said that he did not see Tony Arigam being robbed. He did not see the accused holding a gun. He did not see the accused holding up anybody. He did not see the accused assault Steven Bill.
STATE WITNESS NO 2: CONST FRANCIS DALMAN
9. He has been a crime scene officer for ten years. He was also on foot patrol on the night of 23 December 2003. The patrol had a rest stop at the Education office and a security officer came running, telling them that youths were attempting to rob Megamart. The patrol ran towards the Trukai Rice terminal and saw youths running towards the Town Authority. The police fired warning shots and the youths kept running. He saw that someone was falling and upon getting closer realised that it was Yarrus Navus who was wanted for various crimes. The police recovered home-made guns and buckshots and these were given to the arresting officer. Two police officers fired shots, Constable Steven Inne and one other. Constable Inne fired two shots. He (Constable Dalman) was running about ten metres behind Constable Inne. Constable ToKovai gave the gun to him and he gave it to the arresting officer. Yarrus Navus, who he knew previously, was shot in the stomach.
10. In cross-examination Constable Dalman said that he did not himself see the accused holding up or assaulting any person.
11. In re-examination he confirmed that there were buckshots taken from the scene.
STATE WITNESS NO 3: CONST STEVEN INNE
12. He has been in the Police Force for 8 years and a member of the Criminal Investigation Division for 7 years. He was also on foot-beat patrolling Kimbe on the night of 23 December 2003. An armed robbery occurred. The patrol was sitting at the end of the Education office. When he walked out he saw about 20 to 30 metres away the shadow of a person who had a gun. He thought to himself that it was other the person holding the gun or himself so he fired the first shot at that person. It was not a warning shot. He ran after the person and fired another shot and he fell. He ran towards where he had fallen and saw a home-made gun close to the person. Constable ToKavai picked up the gun and they took the person to the hospital. The person he saw was behind the Education office and they came face to face. When he fired the shot the crowd started running. They ran towards the back road leading to Section 15, at the back of the Council office. They were running from the front of Megamart. The person he shot fell between the entrance to the Council area and the kai bar. He identified the person he shot as the accused, Yarrus Navus who he knew to be an escapee. The time of the shooting was between 2.00 and 3.00 am.
13. In cross-examination Constable Inne said that he did not see the accused assaulting anyone. He did not see anything being stolen. He fired the second shot as a warning shot as by that stage the accused was running away and it was not fair to shoot him in the back. He must have fallen down due to the pain. There was no buckshot found near the accused. They were many youths present in the area. The State's case was then closed.
EVIDENCE FOR THE DEFENCE
14. For the defence:
DEFENCE WITNESS NO 1: THE ACCUSED
15. He is 26 years old, from Kumbun. On the night in question he walked up from Ela Motors towards the PNGBC (now BSP). He came across a group of people which was running. At the same time there was a gunshot and he, being an escapee at the time, wanted to exclude himself from that group. So he ran after the group. When wounded he fell down between the rice terminal and the kai bar. There was no gun, money, helmet or bullets found near him. He was thinking properly at the time. He remembers what happened. Then the police took him to the hospital. The time was between 11 and 12 pm. He knows Richard Jacob. He believes that there were about twelve people in the group. He did not see the security guards he is alleged to have robbed and assaulted, Tony Arigam and Steven Bill. The police shot him in the back. The pellets are still in his body. As soon as he was shot he lay down on the ground face down. He was the last person running behind the group. He was running across the rice terminal and was about to turn and that's when he was shot. Two shots were fired and the second shot got him. He fell between the rice terminal and the kai bar close to a palm tree. He had no mask.
16. In cross-examination he was asked questions about the person, Richard Jacob, he mentioned. The accused said that he knew that person organised the arm robbery, because when he (the accused) was arrested the police also arrested Richard Jacob and Peddy Bigo. He saw Richard Jacob near Megamart. When the police came to the scene he was near Ela Motors. He was already at Nur Haus, close to Megamart and by that stage the group had already started running. The group started running and he also started running. He wanted to detach himself from the group. It was put to him that he had no business in the middle of town in the middle of the night near Megamart, so he must have been part of the group that was planning to rob Megamart. The accused replied that he was an escapee and the police were always checking at his house near Bay Side. In those days he would usually sleep at Section 21. So he just happened to be on his way to Section 21 on the night in question when he ran into this trouble. It was put him that if he were really on his own and not part of the group it would have been more logical for him to run towards Ela Motors. His reply was if he ran in that direction he would have been assaulted. He was the last person trying to make the turn when he was shot.
17. In re-examination he said that he only met Richard Jacob near Ela Motors. Richard went ahead and then there was gun fire. The defence case was then closed.
THE KEY ISSUES
18. Recall that there were seven key issues identified.
ISSUE 1: WAS THE ACCUSED A MEMBER OF THE GROUP CHASED BY THE POLICE?
19. Mr Beli, the defence counsel, argued that there was insufficient evidence to prove that the accused was a member of the group of people that allegedly converged on town with the intention of robbing Megamart. The accused gave sworn evidence that he was walking alone from Bay Side to Section 21 late at night in order to avoid the police as he was on his admission an escapee at that time. This was credible evidence, Mr Beli submitted. The fact that he was in vicinity of an alleged attempted robbery was pure coincidence. Mr Beli also pointed to inconsistencies in the police evidence as to the place at which the accused was shot and whether there was a gun or buckshot found near the accused where he fell. No explanation has been given as to what happened to these vital pieces of evidence. Mr Beli was quite justified in highlighting those deficiencies in the State's evidence. This was the case that was always going to depend on circumstantial evidence. So the safe and secure custody of vital pieces of evidence was essential.
20. Despite those deficiencies, however, there is sufficient evidence to conclude that the accused was indeed a member of the group that was chased by the police. The evidence of Constable Inne is clear. He saw a man with a gun and shot at that man and the man he shot was the accused. Constable Inne's evidence was not undermined by cross-examination. It is credible evidence that the accused was armed and in the vicinity of the group. The accused's evidence about running after the group in order to exclude himself from the group is not credible or believable. If he genuinely wanted to exclude himself from the group, due to not being part of the group, the logical thing would have been to run in the opposite direction towards Ela Motors. He did not do that and the explanation he gave for not doing that – he would be assaulted – did not make sense. The accused seemed to change his evidence about his movements under cross-examination. Furthermore, the reason he gave for being in the middle of the town late at night, was unconvincing. It sounded like a tall story, not believable by any reasonable person. Therefore the first issue is answered yes, he was a member of the group chased by the police.
ISSUE 2: WAS THE ACCUSED ARMED IMMEDIATELY BEFORE HE WAS SHOT?
21. Yes. Constable Inne's evidence on this point was convincing.
ISSUE 3: WAS ANY ARMED ROBBERY COMMITTED AGAINST THE FIRST SECURITY GUARD?
22. No. There is insufficient evidence that Tony Arigam was robbed of anything, let alone K220.00 in cash which is the thrust of Count 1 on the indictment. Tony Arigam gave no evidence and there is no witness statement by him before the court. The only evidence that comes close to suggesting that Tony Arigam was robbed is Exhibit A, Michael Kori's statement that he was held up and Tony was grabbed and carried down to the river. That is not good enough.
ISSUE 4: IS THE ACCUSED GUILTY OF COUNT 1?
23. No. He cannot be guilty of Count 1 as there is insufficient evidence that anyone committed armed robbery against the complainant, Tony Arigam, let alone any evidence that Yarrus Navus was involved.
ISSUE 5: WHAT OFFENCE IS BEING ALLEGED IN COUNT 2?
24. Mr Beli submitted that the wording of Count 2 is such that the attempted robbery is not of Megamart but of the security guard Steven Bill. Read literally, that is what the charge seems directed to.
25. However having checked the Criminal Practice Rules, the Second Schedule, Sections 257 and 258, I am satisfied that by naming the person assaulted (Steven Bill) and not the person from whom it was intended to steal (Steven Bill or Megamart as the case may be) the State has complied with the rules for drafting this sort of indictment. The allegations put to the accused in arraignment made it clear that it was alleged that he had assaulted Steven Bill with the intention of stealing from Megamart. So he knew from the beginning what the allegation was and there is no unfairness in its wording. Nor is there any unfairness in him being tried for the offence of attempted robbery of Megamart.
ISSUE 6: WAS AN ATTEMPT MADE BY ANY PERSON TO ROB MEGAMART?
26. This is a critical issue because without proof of this no offence under Section 387 of the Criminal Code would have been committed, even if Steven Bill was assaulted and the people who assaulted him were armed. I consider that there is insufficient evidence to conclude that the group of which the accused was a member or any person in that group was intending to steal from Megamart. The evidence is vague. The evidence of the three security guards does not say that the group had targeted Megamart. It might have been the Trukai Rice terminal that was the target of the planned robbery. It might have been some other business house in the vicinity. The group might have been on their way to somewhere else in town. There is little doubt that the group had a criminal motive. Likewise there is little doubt that the accused had a criminal motive. They were up to no good. However, the State has to exercise finesse in mounting trials like this. The police and the prosecution must have a clear view of the elements of the offence that is being tried and adduce evidence in support of each of the elements. The answer to this issue is No. No attempt was being made by any person to rob Megamart.
ISSUE 7: IS THE ACCUSED GUILTY OF COUNT 2?
27. It has not been proven that the accused or the group of which he was a member had the intention of robbing Megamart. He therefore cannot be guilty of Count 2. Furthermore it has not been proven that the accused or the group of which he was a member assaulted Steven Bill with the intention of stealing from Megamart. The accused is therefore not guilty of Count 2.
VERDICT
28. The accused is found not guilty and is acquitted of both counts on the indictment.
Verdict accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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