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State v Dimasi [2008] PGNC 192; N3550 (5 September 2008)

N3550

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 491 OF 2006
(NO. 1)

THE STATE

V

TOIPO DIMASI
Of
AHIOMA, ALOTAU, MILNE BAY PROVINCE
Accused

Alotau: Davani .J
2008: 3rd, 4th, 5th September

CRIMINAL LAW – Armed robbery - theft of outboard motor and accessories - hold up on beach and at sea – involvement of co-accused - s.386(1)(2) of Criminal Code Act

CRIMINAL LAW – circumstantial evidence - Doctrine of Recent possession - trail of evidence

CRIMINAL LAW – trial - guilt, the only rational inference

Facts

The accused pleaded not guilty to having allegedly held-up a dinghy operator, then whilst at sea, forced him and one other to jump overboard, at the risk of downing or being attacked by predators of the sea. The accused is alleged to have stolen a dinghy, an outboard motor and fuel drums, all to the value of K8,144.00.

Issue

Whether the circumstantial evidence before the Court is sufficient on which to convict the accused?

Held

The evidence before the Court demonstrated that;

1. After the robbery, the accused knew where to locate the stolen outboard motor.
   
2. A convicted co-accused informed the police about the accused’s involvement in the robbery.
   
3. The accused never told the police about what he alleges occurred that day, only telling the Court his version of the story, at the trial.
   
4. The accused contradicted himself in evidence, in several instances.
   
5. Therefore, the only rational inference is the accused’s guilt.
   

Cases cited:

Papua New Guinea cases

R v Iona Griffin [1974] PNGLR 72
The State v Tom Morris [1981] PNGLR 493
State v Simon Ganga [1994] PNGLR 323
State v Ben Gregory (2007) Cr 170 of 2003

Overseas Cases

Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation [1983] 1 NSWLR
Barca v R [1975] HCA 42; (1975) 133 C.L.R. 82
Browne v Dunn (1893) 6 R 67 (HL)

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

VERDICT

5 September, 2008

1. DAVANI .J: This matter proceeded to trial after Mr Toipo Dimasi (the ‘accused’) pleaded not guilty to one count of armed robbery, charge laid under s. 386(1) (2) of the Criminal Code Act (‘CCA’). This section reads;
   

"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;
  
• (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 person,
  

he is liable subject to section 19, to imprisonment for life."

State’s allegations

2. The State alleges that the accused was in the company of several others when they accosted a dinghy crew, then made off with their dinghy including goods to the value of K8, 144.00. This incident occurred on 18th December, 2003, at East Cape. The State alleges that the accused, whilst in the company of 2 others, armed with shot guns, forced the dinghy operator at gun point, one Lance Thomas, to travel to Normanby. Some kilometres away, the accused forced Lance Thomas and his crew member to jump overboard. They had to swim for about 3 to 4 hours through rough seas before finally reaching land.
   
3. The dinghy, outboard motor and shot guns were later recovered through investigative police work.
   

State’s evidence

4. The State called the victim and dinghy operator, Lance Thomas; Beniam Eli, the Police Investigator Officer and Rex Reuben, a reserve policeman and dentist.
   

Defence’s evidence

5. The accused elected to give sworn evidence. His Defence was basically that at the time of the robbery, he was in the village with his family and that he did not know anything about the robbery until much later. Although, I raised the possible statutory Defence of Alibi with Defence Counsel, she informed the Court that her client wished to proceed to trial and would not pursue that.
   

Analysis of evidence and the law

6. The State’s evidence is essentially circumstantial relying entirely on the police investigation process.
   
7. Lance Thomas, the victim, a former University student but now a villager, described the dinghy that was stolen as 23 foot in length. The outboard motor attached to the dinghy was a 40 horsepower, mariner, lightning model.
   
8. He said on 18th March, 2003, he was getting ready to travel to Normandy Island. However, because it was late and the weather was rough, they decided to spend the night at East Cape. Whilst they were lying on the beach, Lance Thomas saw somebody approach with a torch, whom he recognized as Ian Taurereku.
   
9. He flashed the torch in Lance’s face, Lance asked him what he wanted which then saw him retreat into the dark, then return with his friends. One of them armed with a shot gun, approached him and pointed the gun at his forehead then ordered that he get up and walk to the dinghy. He did so. Another of the thieves then ordered Lance’s crewman to get out of the dinghy, walk to another dinghy, unhook the outboard motor from the other dinghy then take it to Lance’s dinghy and place it in that dinghy. The crewman, Scott was then ordered to push the dinghy to the deeper part of the water then start the engine.
   
10. The dinghy then headed towards Normanby Island. However, somehow, the dinghy ran aground on a reef. Lance had to push the dinghy out to sea. After a while, their kidnappers then told them to jump into the sea and swim. It was hard to see because the sea was rough and there was no light. However, somehow, after 4 and 5 hours of swimming, they reached dry land.
    
11. Benian Eli is a Policeman with the rank of Sergeant and is attached to the National Crimes Intelligence Unit which is part of the Criminal Investigations Division here in Alotau. He is the Investigator.
    
12. He told the Court that he learnt about the involvement of the accused from one Tarcissius Tokula who is presently serving at Giligili for this offence. Tarcissius also gave him the names of Ian Nicholas Taurereko, Vele Gele and one other. Benian Eli then headed a search party to locate and arrest all those armed. The accused on learning of this was always on the run despite the many raids by the Police to capture him. It was not until 2004, that the accused was finally captured.
    
13. Benian Eli said that upon him questioning the accused, he admitted to having been involved in this robbery. However, this is not before the Court as a confessional statement.
    
14. Then began a series of events that eventually led to the seizure of the weapons used in the robbery and also the recovery of the dinghy and the outboard motor that were stolen and finally, the prosecution of this matter.
    
15. Mr Kaluwin for the State submits that the circumstances are such that there is no other reasonable hypothesis but the accused’s guilt.
    
16. I will now review all state witnesses’ evidence together with the accused’s evidence.
    
17. First, the accused’s evidence to the Court is a story that he, for the first time, has told either the police or the Court.
    
18. He said that he was never involved in the robbery because on 18th and 19th December, 2003, he was at home with his family.
    
19. He said he first learnt of the outboard motor when, on 19th January, 2004, he was approached by two friends on Garubo Street, to help him fix an outboard motor. He then asked a Ray Rex to fix the outboard motor. On 19th January, 2004, Ray Rex then asked his father, Rex Reuben, to help him fix the engine. He said that day, 6 people including the accused’s cousin, went with Rex Reuben in his truck to Magisubu, located in the foothills.
    
20. At Magisubu, they loaded the outboard motor onto Rex Reuben’s truck, then went to Iona Mission Station, where he left to attend church service. He said he never saw the motor again.
    
21. As for the guns that were tendered through Sergeant Eli, the accused said in July 2004, A David from Fergusson, went to his house and asked him to keep the firearms in his house. He refused to accept them and referred David to Eric Gele of Wotonou Village.
    
22. The evidence is that in August 2004, Arresting Officer, Jeffrey Warufa, arrested both Eric Gele and him. They both pleaded guilty to being in possession of firearms and on 12th August, 2004, were sentenced by the Alotau District Court to a term of 1 year and 6 months.
    
23. Sergeant Benian Eli’s evidence in relation to the guns is that when he questioned the accused at the police station, the accused said he had passed the guns to one Eric Gele of Wotonou Village. Sergeant Eli said they went with the accused and eventually arrested Eric Gele at Ahioma Kouna. They questioned him about the firearms that were used in the robbery and he told them the guns were at Wotonou. Together with Eric Gele and the accused, the party proceeded to Wotonou Village where Eric then retrieved them from his house. Two factory made guns, a home made gun and 7 x 12 gauge cartridges, 6 red and 1 black in colour were in a fertilizer bag that were given by Eric Gele to Sergeant Eli. That was when Eric Gele and the accused were charged with being unlawfully in possession of firearms and later convicted by the District Court. This same bag and its contents were handed up to this Court and marked as exhibits for the State, as the weapons that were used in the robbery at East Cape.
    
24. The evidence is also that the accused was with Sergeant Eli when they went to Wotonou Village until the guns were retrieved. Apart from that, the evidence is that it was the accused himself who told Sergeant Eli, prior to the raid on Eric Gele’s house, that the guns used in the robbery were with Eric Gele at Wotonou.
    
25. Rex Reuben, the State’s last witness, said that on 27th December, 2003, the accused asked him if Rex could use his truck to pick up his motor and to deliver it to a mechanic to be repaired. Rex agreed, so they travelled firstly to Charles Taurereka’s place at Gabugabuna as requested by the accused. This village is located on the coast. Because the motor was not there, the accused asked him to drive to Magesubu, which is where he was told the outboard motor could be. Magesubu is an inland village, located at the foot of some mountains. Rex Reuben’s evidence is that it is about 2 ½ kilometers inland from Charles Taurereka’s place. There are no dinghies there.
    
26. He said they then approached the motor to the mechanic’s place at Aioma. The mechanic is his son. He told the Court that his son Ray could not repair the motor as he is a metal fabricator and a welder, not a mechanic.
    
27. Sergeant Eli’s evidence in relation to the outboard motor is that he learnt that Sergeant Rex had transported an outboard motor on his PMV to Aioma. He then questioned Sergeant Rex. Sergeant Rex told Sergeant Eli that it was the accused who had asked him for help to transport the motor from Gabugabuna to Aioma and that the motor was now with his son, Ray. On later questioning of Ray by Sergeant Eli, Ray told them that the motor was sent to a village called Gwabila. They then went to Gwabila Village and found the motor there.
    
28. Later, the owner of the outboard motor identified it as his and signed a Police indemnity receipt prior to its release to him. Lance Thomas was only the operator, when it was stolen from him.
    
29. As for the dinghy, it was recovered 2 weeks after the robbery at Maiwara.
    
30. I should point out that the accused’s version of his story was never put to Rex Reuben by Defence Counsel, in direct contravention of the rule in Browne v Dun (1893) 6 R 67 (HL), a principle that has been applied in many cases in this jurisdiction, one case featuring prominently, that of The State v Simon Ganga [1994] PNGLR 323, a decision by Sevua. J. His Honour explained this rule when he said;
    

"The essence of this rule, if I may be allowed to put it in a more simplified form is that, the accused’s case should be put to the prosecution witnesses in cross-examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain."

31. His Honour referred also to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR where he extricated the speeches of Lords in Browne v Dunn (supra), one of which was Lord Heschell LC, where he said, amongst others that;
    

"...if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that it is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."

32. It is necessary for a witness to be given an opportunity to meet an imputation, if it is being made against him, to either explain or destroy it. This rule does not derogate from the cross-examining counsel’s right to test his case as best as he can with the final analysis being that it is unfair to leave unchallenged part of a witness’ evidence, then, through another witness, called by cross-examining counsel, then suggest something that is contrary to the first mentioned witness’ testimony or which has never been covered by him.
    
33. This is exactly what has occurred here. What is the effect of that?
    
34. Obviously, it is evidence that the State did not have the opportunity to get instructions on and possibly refute it in cross-examination. It means that this affects the weight to be attached to the accused’s evidence because it has not been properly tested. The Court is left with the choice of either rejecting altogether the accused’s evidence or to draw inference by giving his evidence the appropriate weight.
    
35. So the accused’s evidence that he was asked by his cousin to repair the outboard motor and the other events that followed thereafter, is greatly tarnished by the evidence of Sergeant Eli and Rex Reuben.
    
36. Rex Reuben’s evidence that features prominently and that generally agrees with Sergeant Eli’s evidence is that it was the accused who asked Rex Reuben to take him to Charles Taurereko’s house at Gabugabuna to pick up the outboard motor. The accused never told Rex Reuben that he (accused) was asked by a cousin of his who resides on Garebo Street to pick up his (cousin) outboard motor and to repair it. That version is a recent fabrication.
    
37. Another piece of evidence that again features prominently is that Charles Taurereko is Ian Nicholas Taurereko’s relative, a person presently serving time for this offence. The obvious question I ask is, why would the accused go to Charles Taurereko’s house, which according to Rex Reuben’ evidence, is a long way away. The answer to that is that he knew Charles Taurereko had with him the stolen outboard motor obviously because he was a member of the group that held up Lance Thomas.
    
38. In relation to the guns, for whatever reason, the accused again mentions Eric Gele as the man he referred David to. Putting aside the evidence, we now know of Eric Gele’s involvement, the accused said he told David of Fergusson Island to take the guns to Eric Gele of Wotonou Village. This evidence immediately brings to my mind the following questions;
    
    1. Why would David come to the accused with the guns? He has not given us a reason.
       
    2. Why would the accused refer David to Eric Gele? He has not given us a reason.
       
    3. Did the accused name Eric Gele only because Eric Gele and him were convicted of being in possession of weapons, so he was ‘tying up loose ends’ so to speak?
       
39. Additionally, although Sergeant Eli was questioned, the pertinent questions relating to the accused’s own version were not put to Sergeant Eli, again reinforcing the position at law that the accused’s evidence has not been tested, therefore little or no weight at all should be placed on his evidence.
    
40. I can conclude with no hesitation at all, that the accused’ version of what happened does not carry any weight at all, that he obviously fabricated his evidence in a bid to cast doubts on the State’s case, but he has not succeeded.
    
41. Mr Kaluwin also referred the court to the Doctrine of Recent Possession, of how the offence was committed on 19th December, 2003 and on 27th December, 2003, then about 8 days later, the accused was looking for the outboard motor, finally securing it. The principle is that where soon after the commission of the offence, the accused comes into possession of the property, the subject of the crime, usually house breaking or robbery or stealing, that is sufficient evidence on which to infer that he committed the offence. Or if he gives an explanation that is reasonable and raises doubt under the circumstances, he should be acquitted. If the accused gives an explanation of his possession, which is untrue, the presumption of guilt does and will arise. (see R v Iona Griffin [1974] PNGLR 72, the State v Ben Gregory (2007) Cr 170 of 2003 dated 12th March, 2007)
    
42. In this case, although the accused did not eventually get the outboard motor, he knew where it was, having located it with the assistance of others.
    
43. What is the inference that this Court can draw from the evidence?
    
44. Where the case of an accused person rests substantially upon circumstantial evidence, as in this case, the question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw. (Barca v R [1975] HCA 42; (1975) 133 C.L.R 82 at 104 and application in The State v Tom Morris [1981] PNGLR 493).
    
45. The accused’s evidence as I have seen is very contradictory and has not been property tested. His evidence raises a lot of doubts in my mind which I have pointed out and which leaves me with one conclusion and that is that the accused’s guilt is the only rational inference that I can draw.
    

Conclusion

46. Based on the above reasoning, I make the following conclusions;
    
    1. On 19th December, 2003, the accused was with Ian Nicholas Taurereko, Tarcisius Tokula, and possibly two others, when they held up Lance Thomas and Scott at East Cape by pointing a gun at Lance’s forehead;
       
    2. That together, they left for Normanby by dinghy, then made Lance Thomas and Scott jump overboard and swim through rough seas, at the risk of drowning;
       
    3. That the accused and others then made off with the dinghy, outboard motor and other goods which included fuel containers, all worth K8,144.00;
       
    4. Soon after, Ian Nicholas Taurereko and Tarcissius Tokula were arrested, charged, convicted and are now serving time. A search party was launched to look for the accused. On learning that, the accused went into hiding and was on the run until his arrest in August 2004, by chance;
       
    5. The accused was arrested, together with Eric Gele, who then told Sergeant Eli where to find the guns that were used in the East Cape robbery;
       
    6. After locating these guns, both Eric Gele and the accused were charged for being unlawfully in possession of weapons, and were convicted and sentenced by the Alotau District Court, after a guilty plea;
       
    7. That prior to that, on 28th December, 2003, the accused went to the house of his accomplice, to pick up the motor as he obviously knew where it was kept after the robbery;
       
    8. The accused’s evidence or version of events has not been rested and is very contradictory to a large extent;
       
    9. The only reasonable hypothesis I can draw from this is the accused’s guilt.
       
47. I find that the State has proven beyond reasonable doubt the charge of aggravated armed robbery against the accused. I find the accused guilty as charged.
    

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