N3496

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1711 OF 2005

BETWEEN

THE STATE

AND

PAIRI SPAIKEY HUA

Waigani: Yalo, AJ
2008: 27 February, 29 May,
27 June, 3 October

CRIMINAL CODE – Prisoner charged with one count of robbery under Section 386 of the Criminal Code Act Ch 262 – prisoner pleads not guilty. Elements of offence: (a) prisoner is armed with a dangerous or offensive weapon or instrument; or (b) prisoner is in company with one or more other persons; or (c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any persons. State failed to prove elements of offence beyond a reasonable doubt. Verdict, not guilty, Prisoner is acquitted of the charge.

Cases cited
Paulus Pawa v The State [1981] PNGLR 498
State v Julius Ombi (No 1) (2004) N2564

Cases referred to
State v Tom Morris [1981] PNGLR 493
Plomp v R (1964) 110 CLR 234

Counsels
Mrs T. Ganai with Mr M. Giruakonda, for the State 
Mr A. Asan, for the Prisoner

RULING

1	YALO, AJ: 	The Prisoner is charged with one count of robbery under Section 386 of the Criminal Code Ch 262 (Criminal Code). The Prisoner pleaded not guilty to the charge.

2	The State alleges that between 5.45pm and 6.00 pm on 5 November 2004, two cousins namely Mr Oalavai Mika and David Oalori shopped at Andersons Foodland Supermarket at Konedobu, National Capital District (NCD). They bought a 10kg rice bag, two loaves of bread and a packet of chicken pieces and other groceries. They walked to their house located at Sekani Settlement in Konedobu. Sekani Settlement is located at the west side of the foot of Burns Peak and left of the Poreporena Freeway travelling from Jacksons International Airport and Hohola way.

3	The route to their house takes them past the Weigh Inn Hotel, past a shop called Hanua Mart, then across the main road leading to Idubada, Kanudi, Tatana and Baruni. The Prisoner, Messrs Mai Horovo Kahamo alias "Koboni", John Orila Mihire, and twin brothers Steven and Frankie Manus approached Mika and Oalori between the hotel and Hanua Mart. The five gentlemen demanded money and food from the cousins. When they refused to accede to the demand, the five men allegedly assaulted them. Mr Mika fought back. The fight lasted about an hour. Mr Mika was stabbed. He was picked up and rushed to the Hospital in an ambulance but he died at the Hospital. 

Facts in dispute

4	The fact in dispute are the Prosecution’s assertion that the Prisoner was involved in attacking Oalavai Mika and David Oalori, he had a knife and he was in the company of four others who attacked and stole a 10kg bag of rice and other groceries. The Prisoner argues to the contrary. He admits being present in the middle of the attack and the fight that ensued but submits that he only tried to break up the fight and stop it. 

Issue

1	Whether the Prisoner was in the company of others when he attacked Messrs Mika and Oalori.

2	Whether the Prisoner used a knife to attack Messrs Mika and Oalori.

Section 386 of the Criminal Code

5	Section 386 of the Criminal Code provides for the offence of robbery, the elements of the offence and the penalty. Section 386 states:

386 The offence of robbery

(1)	A person who commits robbery is guilty of a crime.
Penalty: subject to subsection (2), imprisonment for a term not exceeding 14 years.

(2)	If a person charged with an offence against subsection (1) –

(a) is armed with a dangerous or offensive weapon or instrument; or 
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any persons,

He is liable subject to Section 19, imprisonment to life.

[My underlining]

6	Section 19 of the Criminal Code provides for penalties alternative to those provided under specific provisions of the Criminal Code.

7	The elements of the offence under Section 386(2) of the Criminal Code are as follows:

(a)	the Prisoner must be clearly identified,
(b)	the Prisoner was armed with a dangerous or offensive weapon or instrument at the time of the alleged robbery,
(c)	the Prisoner is in the company of one or more persons during the alleged robbery,
(d)	the Prisoner at, immediately before or immediately after the time of robbery wounds or uses violence to any persons. 

The State’s evidence

8	The following documentary evidence was tendered into evidence by consent. 

(1) Autopsy report relating to Oalavai Mika dated 18 November 2004.
(2) Prisoner’s record of interview (English version) dated 27 January 2005.
(3) Prisoner’s record of interview (Pidgin version) dated 27 January 2005.
(4) Statement of Constable Joe Mickey dated 7 February 2005.
(5) Statement of Senior Sergeant Ulagis Mantu dated 7 February 2005.
(6) Affidavit of Doctor Phillip Golpak dated 18 March 2005.

9	The Prosecution called one witness, Mr David Oalori, the cousin of the deceased, Mr Oalavai Mika. He gave sworn evidence. Mr Oalori is from Karama Village, Malalaua District, Gulf Province. He was employed at Choulai Trading at Badili, Port Moresby, NCD in 2004. He identified the Prisoner as the fifth person in the company of four others Messrs Maik Kahamu alias Koboni, John Orila Mihere, Steven Manus and Frank Manus who attacked him and his cousin late Oalavai Mika. He easily identified the attackers because they live in the same area where the Ginigini and Sekani settlements are situated. They were attacked at an area between the Weigh Inn Hotel and Hanua Mart. The attackers demanded money and grocery from the cousins. When the cousins refused to give money and the grocery the five men attacked them. Mr Oalori’s evidence is that although the attack happened between 6.00pm and 7.00pm, there was sufficient day light. 

10	When the gang started attacking the two cousins Oalori ran away. He was chased by Koboni with a kitchen knife. He stopped at the market and watched the gang fight Mr Oalavai Mika. He was about 20 meters away from the scene where Mr Mika was attacked. There was nothing obscuring his vision. He saw Mr Mika fall to the ground at the hands of the attackers. The attackers snatched the 10kg rice bag off Mr Mika and ran off. Mr Oalori then went to the house to inform his family and relatives.

11	Mr Giruakonda, Counsel for the State, submits that the State’s evidence is generally consistent all throughout. Counsel referred to the Autopsy report which sets out the stab wounds sustained on the back and left lung which caused Mr Mika’s death. He further referred to David Oalori’s response to a question where he asked in examination in chief: "What did they use"? The witness answered: "They used a small knife". This short exchange begs the question, ‘has the witness specifically identified the Prisoner using the knife’? Counsel submits that if the Court accepts that the Prisoner "did not involve in the fight and did escape with the 10kg bag of rice, then it is open to conclude that he was an active participant". Mr Giruakonda attacks the Prisoner’s evidence. He asks the Court to conclude that the Prisoner did not go to Weigh Inn Hotel to collect his employment reference which he could have done in 2002 or 2003 and not on the date of the alleged crime. This is to say that the Court should draw a conclusion that the Prisoner went to the general vicinity of the alleged crime to execute a prior plan to attack Mr Mika and Mr Oalori. 

12	Mr Giruakonda accepts Mr Puksy Mai Hua’s evidence that he observed the fight from about 10 meters away from the front of Hanua Mart. However, Counsel asks the Court to note Mr Hua conceding that when the fight took to the mini market his view and observation was obscured by a perimeter fence. Mr Giruakonda submits that it follows that this witness cannot corroborate the evidence presented by the Prisoner. He submits that there is circumstantial evidence that proves the elements of the offence. In this regard Counsel refers to the case of Paulus Pawa v The State [1981] PNGLR 498 where the Supreme Court determined an appeal and application for leave to appeal against conviction by the National Court. The appellant was charged for break and enter and stealing a safe containing K4,350.00 cash. The case against the appellant at the National Court was largely circumstantial. He was convicted and sentenced to imprisonment for 2 years and 10 months with hard labour. Andrew J, with whom Kearney DCJ and Kapi J (as he then was) concurring stated that he agrees with what Miles J stated in the case State v Tom Morris [1981] PNGLR 493 at 495: "I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v R (1975) 50 ALJR 108 at 117: ‘when the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the Prisoner". 

The Defence evidence

13	The Defence called two witnesses, the Prisoner, Mr Pairi Spaikey Hua and Mr Uksy Mai Hua. They are brothers.

Evidence from the Prisoner

14	Mr Hua was born at Ginigini Settlement, Konedobu, Port Moresby, NCD. On the afternoon of 5 November 2004, he walked to Weigh Inn Hotel from Ginigini Settlement. The Prisoner had worked at the hotel before but quit in 2002. Since then he had not required a reference from the hotel. He wanted the reference at that relevant time because he intended to seek employment at another hotel. On the way to the hotel, he stopped by at Hanua Mart. His brother, Mr Uksy Mai Hua, the second Defence witness was a guard there. They chatted for a few minutes. Thereafter the Prisoner walked down to Weigh Inn hotel. The afternoon shift Duty Manager of the Hotel was not readily available so he was asked to wait. He waited at the Reception for about 10 – 15 minutes. The receptionist later asked him to step out of the hotel for a while because the Duty Manager was busy. 

15	When the Prisoner stepped out of the hotel he saw a fight. The public gathered around to watch the fight. He came to the fight and attempted to break it up. He saw Mai Kahamu (Koboni) and Oalavai Mika fighting. He estimates the time to be about 6.45pm. The Prisoner did not know the reason for the fight. He tried to stop them but he could not. He managed to push them apart stopping the fight. However they continued fighting. The fight started between Weigh Inn Hotel and Hanua Mart and moved across the main road to the mini market. He said everyone was interested to watch the fight and they did not help him to stop the fight. As an elder and a former Youth Coordinator in the area he was obliged to stop the fight. He knows all those who were involved in the fight. The Prisoner struggled alone to stop the fight which lasted one hour. The Prisoner denies seeing the State’s witness anywhere at the crime scene. 

16	The Prisoner gave the following evidence during cross-examination. He is related to Mr Koboni, the person whom the State’s witness saw with a kitchen knife. Koboni resides in Ranuguri Settlement. He does not normally get along with Koboni, because the latter is a young person. The Prisoner is not aware if the deceased Mr Oalavai Mika had attacked Mr Koboni previously.	Mr Giruakonda asked the Prisoner why Mr Koboni, his nephew, did not obey him and stop fighting the deceased. The Prisoner replied that he did not know.

17	The Prisoner further explained that he was an older person trying to stop young men fighting. They were running around and fighting and he could not stop them. He became exhausted and tired. The Prisoner left for his Ginigini Settlement when he saw the deceased run to the salt factory and to Sekani Settlement. He gave evidence that when the deceased walked to his settlement he carried nothing in his hands. The Prisoner denies that the deceased was injured. When he was asked why he went to his settlement immediately, he replied that he was sweating and dirty and it was already dark so he left.

Evidence from Uksy Mai Hua

18	Usky Mai Hua is was born at Ginigini Settlement and has lived there since. He works at Hanua Mart as a Security Guard. 

19	On 5 November 2004 he was working at Hanua Mart. The Prisoner dropped by at Hanua Mart at about 5.30pm. They chatted for about 2 – 5 minutes. The Prisoner left for Weigh Inn Hotel. 

20	The witness gave evidence that a fight broke out between Hanua Mart and Weigh Inn Hotel. He rushed out to see the fight which was about 10 meters away from the Hanua Mart. He stood at the door of the shop and witnessed the fight. He saw the Prisoner walk from the hotel to the middle of the fight and tried to break it up and stop it. There were a lot of people, but he did not see the State’s witness, Mr David Oalori. He says he saw Mr John Ovi and Mai Kahamu.

21	During cross examination the witness stated that he did not see how the fight started. He was inside Hanua Mart. He said that Mr Mai Kahamo (Koboni) tried to stop the fight. He also saw the Prisoner stopping the fight. He saw the Prisoner follow the fight to the salt factory heading toward the settlement.

Findings

22	With respect, I find that the documentary material tendered into evidence by consent of little value for the purposes of determining the issues before me. 

23	The two cousins Mr Oalavai Mika and David Oalori were attacked between the Weigh Inn Hotel and Hanua Mart. The State’s only witness ran away and distanced himself and for a short while watched the attackers assault the deceased, Mr Mika. There was nothing obscuring his observation of the attack. The fight continued across the road to the mini market. There was sufficient light at that time of the fight. The State’s witness easily identified the attackers because they are from the same area, the Ginigini and Sekani settlements. Mr Oalori is an eye witness and a victim. He is a relative of the deceased whose shopping was allegedly stolen and his cousin died allegedly as a result of the attack. 

24	The Prisoner and Mr Uksy Mai Hua are brothers whilst the State’s witness and the deceased Mr Oalavai Mika are cousins. I am mindful that witnesses for both parties have the potential not to be truthful. Mr Uksy Mai Hua has interest to protect his brother, the Prisoner. As for Mr David Oalori, I repeat that he is a victim and his cousin died from the alleged attack and robbery. However I am not suggesting that both are not truthful. I am merely reminding myself of the probabilities I am faced with. The fact is that there is conflicting evidence about the Prisoner committing the crime. 

25		I must be cautious in considering the evidence given by both parties. Both the Prosecution and the Defence decided not to call any independent witness. There is evidence before the Court that many people witnessed the alleged crime. I believe both parties would not have run out of independent witnesses if they made an effort to seek them. Under the circumstance the Court is left to decide whose evidence to accept.

26	The court visited the site of the alleged crime. The Court notes that the alleged attack started between the Weigh Inn Hotel and Hanua Mart. The fight broke out about 20 meters from the hotel and about 10 meters from Hanua Mart. The fight eventually crossed the main road to the mini market. The distance between the market and the spot where the attack began is about 20 meters. 

27	Nothing obscured the State witness’ view and his observation of the attack on the deceased from the mini market. The Defence witness Mr Uksy Mai Hua watched the fight from about 10 meters and nothing obscured his observation of the fight. 

28	Mr Oalori’s statement dated 7 November 2004 given to police was given two days after the alleged crime. I believe the facts were still fresh in his mind. There is an inconsistency between a fact in his statement to the police and his evidence in Court during trial as regards his witnessing of the attack on his cousin. In his statement he says that when he saw the five men attack his cousin he ran to Sekani Settlement to inform his family and relatives. Whereas in his evidence during trial he stated that after he was chased by Koboni he ran across the road and watched the men fight his cousin from 20 meters away. When he saw his cousin Mr Mika fall to the ground and the attackers take the 10kg rice and other groceries he ran to the Settlement to tell his family and relatives. For the purposes of identifying the person who stole the goods off the deceased there is a clear inconsistency in the State’s evidence. In this particular respect I am inclined to accept Mr Oalori’s statement to the police made 2 days after the event rather than rely on his evidence given in court during trial. That is to say the State’s witness may have run away to his house at Sekani Settlement which was about half a kilometre away from the crime scene. He did not see who in particular steal the groceries.

29	He reported to his family and relatives at the Settlement of the attack on him and his cousin Mr Mika. Thereafter they rushed to the scene but found the deceased lying on the ground bleeding. The 10kg rice bag and other groceries were missing. They rushed Mika to the hospital but he died. I find that the State’s witness did not see who actually stab the deceased with a knife. This is because, as he says in his statement to the police, he ran to the settlement to tell his family and friends when the five men attacked the deceased. 

30	During cross-examination the Defence did ask the State’s witness whether his statement to the Police during the record of interview was a lie. The witness said he did not lie. In his police statement the State’s witness states that the Prisoner was at the scene of the alleged crime after the fight had already started. However his oral evidence in Court was that the Prisoner was together with the other attackers when they first approached the cousins and demanded money and groceries. 

31	The Prisoner did not offer any explanation for the inconsistencies in his evidence. Mr Asan, Counsel for the Prisoner referred to a case namely, State v Julius Ombi (No 1) (2004) N2564 where the victim gave explanation for the inconsistency in her evidence and the Court accepted her explanation and accepted her evidence. In that case the victim of rape gave evidence in court that was inconsistent to the statement she gave to police. When the inconsistency was put to the victim she apologized. She explained to the Court that it was her first time in Court and she forgot some parts of her evidence. The Court took into account her age and apparent lack of sophistication. The Court accepted her evidence since she provided reasonable explanation for the inconsistency in her evidence. 

32	I am in agreement with the approach the Court took in that case and I add one more reason. Without the benefit of being the trial Judge in that case, the person was a victim of rape and I assume it may have been embarrassing situation for her and she could not have been expected to be in a calm and collected state of mind given the usual process of adducing oral evidence from her in an open Court. Even if my assumption is wrong I believe it is natural and commonsense that such would be the experience in any similar circumstance.

33	Mr Giruakonda submitted that I should accept the State witness’ evidence given under oath and ignore the evidence in the record of interview because that is what the witness asked the Court to accept. If the witness did say that then it is a clear contradiction to what he said when Mr Asan put to him the apparent inconsistency in his police statement. The witness stated that his statement to the police is not a lie. Be that as it may the State witness failed to explain to the Court the inconsistencies in his evidence. If he did explain and if such explanation was reasonable this Court would have accepted his explanation as the Court did in State v Julius Ombi (supra).

34	Even if I were to accept his evidence given in Court (i.e. that he did stand at the market and watched the attackers attack his cousin until he fell to the ground) I find that he was unable to identify who specifically stab Mika and who in particular stole the grocery. This is vital to proving the second element of the offence namely the prisoner was armed with a dangerous or offensive weapon or instrument at the relevant time and place. No additional witness, preferably an independent witness was called to corroborate the account offered by Mr Oalori. The Prosecution made that choice. There is no dispute about the attack. There is no dispute that someone took the 10kg rice and other groceries from the deceased, Mr Mika. But who in particular stole these goods? The Prosecution has not specifically identified the Prisoner as the person who stole the goods. In his evidence the State witness continued to use the personal pronoun "they" in his attempt to identify who attacked Mr Mika and who stole the 10kg rice and groceries. 

35	It follows that as to the elements of the offence the State has not proven that the Prisoner was armed with a dangerous or offensive weapon or instrument. In fact the State witness gave evidence that it was Koboni who had a knife and chased him. He gave no evidence that this knife was later in the hands of the Prisoner prior to the stabbing of late Mr Mika. There is no evidence before this Court that at any one time of the attack the Prisoner had in his possession an offensive or dangerous weapon or instrument. 

36	The Prisoner was present at the scene of the alleged offence but he was not "in the company with one or more other persons" within the meaning of Section 386(2)(b) of the Criminal Code. He had come to the scene on his own and tried to break up the fight when he saw the fight. He did not participate in the fight. 

37	The State has failed to provide evidence, direct or otherwise, that the Prisoner wounded the victim and robbed him. With respect I am unable to agree with Mr Giruakonda to conclude that the Prisoner was an active participant. The case of State v Tom Morris (supra) does not apply to the particular circumstances of this case.

38	During submissions Mr Giruakonda asked the Court to invoke Section 7 of the Criminal Code. Section 7 states: 

Division 2.—Parties to Offences.

7.	Principal offenders.

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a)	every person who actually does the act or makes the omission that constitutes the offence; and
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c)	every person who aids another person in committing the offence; and
(d)	any person who counsels or procures any other person to commit the offence.

(2)	In Subsection (1)(d), the person may be charged with—
(a)	committing the offence; or
(b)	counseling or procuring its commission.

(3)	A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—
(a)	guilty of an offence of the same kind; and
(b)	liable to the same punishment,
as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

39	I asked Counsel if the State had invoked Section 7 together with Section 386 of the Criminal Code to charge the Prisoner. And if not I asked whether it was still open for the State to invoke and refer to Section 7 at this stage. I asked Counsel if there were any authority on this issue that might help this Court. Counsel could not assist the Court on these issues. Clearly the Prosecution did not invoke Section 7 and with respect it is not entitled to ask the Court to apply that provision at this stage. The decision to charge and what charge(s) to bring against an accused is made prior to and not during trial. I do not believe that as a matter of procedure the State’s submission is appropriate. To do so would be unfair to the Prisoner. Assuming that the State did include Section 7 to indict the Prisoner or assuming that according to settled authority the State is entitled to rely on Section 7 at this stage of the trial I would not have differed from the conclusion I have reached for the same reasons I have set out. 

Conclusion

40	I have considered the evidence from both parties. I have also considered the written submissions from both Counsels. I do not accept the State’s evidence. The State’s evidence crucial to proving the elements of the offence is inconsistent. The State’s witness did not see the Prisoner as the one who attacked him and late Mr Mika and stole the 10kg rice bag and other groceries. Notwithstanding that the Prisoner did not call an independent witness I am left to accept their evidence considering the observations I have made about the State’s evidence. The Prosecution has failed to prove the offence beyond a reasonable doubt. I, with respect, disagree with the State that there is circumstantial evidence to return a verdict in its favour. The issues raised in these proceedings as regards the Prisoner’s guilt must all be answered in the negative. 

Orders

1	The Prisoner is not guilty.

2	The Prisoner is acquitted and discharged from the charge of one count of robbery brought against him under Section 386 of the Criminal Code.

3	The Prisoner shall be released from custody forthwith. 

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner