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State v Hayala [2009] PGNC 139; N3774 (28 August 2009)

N3774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 250 OF 2009

THE STATE

V

KUKU HAYALA

Tari: Makail J,
2009: 13th, 14th, 17th, 18th, 21st & 28th August

CRIMINAL LAW - Verdict - Armed robbery of motor vehicles - Identification - Whether accused was properly identified or recognized as the perpetrator - Principal offender - Whether accused aided and abetted accomplices - Onus of proof on prosecution - Breach of rule in Browne -v- Dunn (1893) 6 R 67 HL - Onus not discharged - Accused entitled to acquittal - Criminal Code - Sections 7(1)(a)&(b)&(2)(a)&(b) & 386(1)&(2)(a)&(b).

Cases cited:
Papua New Guinea cases cited:

John Beng -v- The State [1977] PNGLR 115; (1977) SC112
The State -v- Lasi Mauwe & Maki Onopika (1999) N1885
Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC927
The State -v- Michael Wapidik & Wesley Michael (No1): CR No 489 of 2007 (Unnumbered & Unreported Judgment of 15th July 2009)
Regina -v- Opu Anuma (1974) N801
Agiru Aieni -v- Paul Tahian [1978] PNGLR 37
Regina -v- William Taupa & Ors [1973] PNGLR 140

Overseas cases cited:

Browne -v- Dunn (1893) 6 R 67 HL

Text:

Judges Bench Book (1st ed 2008)

Counsel:

Mr J Waine, for the State
Mr M Mumure, for the Accused

VERDICT

28th August, 2009

1. MAKAIL J: The accused stands charged that on 14th May 2008, at Wabia in Tari, he and his accomplices committed armed robbery by holding up two motor vehicles belonging to Oil Search Limited and Gigira Development Corporation Limited respectively with bush knives and axes contrary to section 386(1)&(2)(a)&(b) of the Criminal Code. The State alleges that the accused and his accomplices gathered at Wabia and discussed a problem that had occurred earlier in Nipa involving an armed robbery and rape of the accused’s village women. The situation got tense when the accused incited and encouraged the people through his words and actions to hold up motor vehicles that were traveling past his village.

2. His men armed themselves with bush knives and axes and went to Tari town at about 12.30 pm. They sighted an Oil Search Limited’s motor vehicle, a Toyota land-cruiser utility and held up the driver and forcefully removed the key from him. They got into the motor vehicle and it drove off. They also detained it. At about the same time, another motor vehicle belonging to Gigira Development Corporation Limited was driving passed Wabia. It was a Toyota 10 Seater, white in colour. His men also held it up and forcefully removed the key from the driver. They drove it off and also detained it.

3. Sometimes later, through negotiations, the two motor vehicles were returned to their respective owners. The State alleges that the accused is the perpetrator of the armed robberies under section 386(1)&(2)(a)&(b) of the Criminal Code or is a principal offender by virtue of section 7(1)(a)&(b) & 2(a)&(b) of the Criminal Code. 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 person,

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

4. The first State witness is Mr Poge Gewane. He is an employee of Oil Search Limited and based at Hides Gas at Nogoli. On 14th May 2008, he drove an Oil Search Limited motor vehicle, a Toyota land-cruiser utility bearing registration no: CAO-640 and marked V29 to Tari. It was white in colour and had a coffee tray. In Tari, he went to MAF office to check for mails. Whilst there, he saw an ambulance pass him and travelling towards Menduli. It was white in colour and had tinted glass with an ambulance sign on it. He then proceeded to the main shopping centre of Tari town. He was stopped by an elderly man on the way who enquired about a letter he had written to Oil Search Limited. As he was talking to this elderly man, he saw the ambulance that he had seen earlier at the MAF office, drive pass.

5. It then made a "u" turn and came back to where he had parked. He was still talking to the elderly man when the ambulance stopped about 3 meters in front of his motor vehicle. Since he thought that the occupants were out going about doing their business, he did not pay close attention at what was going on. All of a sudden, he saw the doors of the ambulance flung opened and men came rushing out but the driver remained in it. He could not recognize the driver. In sensing the danger, he looked at the rear vision mirror of his motor vehicle to figure a way to reverse it but could not because there were people at the rear. He was helpless because the men completely surrounded him in the motor vehicle.

6. The men moved in and demanded him to hand over the key of the motor vehicle to them. He asked them why they wanted the key and they told him that their cargoes and women were held up at Nipa after Oil Search Limited’s police shot one Nipa man. They told him to ask Oil Search Limited to give them money before they would release the motor vehicle to Oil Search Limited. He also asked them if they had reported the incident to the police and they told him that they did and that is the reason for them asking him to hand over the key of the motor vehicle to them. He told them that he would only release the motor vehicle to them at the police station and asked them to get on, but they refused. They opened the door and tried to pull him out.

7. Sensing that he was in great danger, he got out of the motor vehicle and gave the key to one of them. He does not know the name of this person but he is medium in height, dark skin and about 20 to 30 years old. Another person got his hand-held radio and three others got into the motor vehicle and drove off. The ambulance also followed his motor vehicle. As the ambulance drove off, he saw the driver. The driver was short, with beard and light skin.

8. He went to the police station and reported the armed robbery incident. He also asked the policemen if the men who had attacked him had reported the incident at Nipa to them but as the policemen were auxiliary policemen, they told him that, they would check with the regular policemen to confirm if a complaint has been lodged in relation to the incident at Nipa. He rang Oil Search Limited’s Security Supervisor and reported the armed robbery incident to him and told him that he was safe at Tari police station.

9. He has not seen the driver of the ambulance before but saw him again after the armed robbery incident at Anopi police barracks where policemen, Oil Search Security Supervisor and people from Wabia had gathered to resolve the problem. This was on 15th May 2008. He was standing about 10 to 15 meters away from this person. He pointed to the accused in the dock as the person whom he saw on those two occasions.

10. The second witness is Mr Paul Kemga. He is from Western Highlands Province and an accountant by profession. He is employed by Gigira Development Corporation Limited, a company contracted to Oil Search Limited and based at Hides Gas field at Nogoli.

11. On 14th May 2008, at around 12.40 pm, he left Nogoli for Tigibi with a colleague to inspect the company’s sawmill in a company vehicle, a Toyota 10 seater white in colour and bearing registration no: CAO-631. At about 2:00 pm, they arrived at Tari town. He saw a few people on both sides of the road and also a few policemen out and about. They headed straight for Tigibi. On the way towards Tigibi, he received a radio call from his site coordinator informing him that an Oil Search Limited’s vehicle was held up. The site coordinator also asked him if he had seen the hold up but he told the site coordinator that he had not seen any hold up.

12. But when they arrived at Wabia, he saw a road block. He saw men, women and children standing beside the road. They waved him to stop but he did not realize that it was a road block until he saw an old part of a motor vehicle called a "deep" laid across the road. He stopped and a group of men asked him where they had come and were heading. He told them that they had come from Nogoli. The men were armed with bush knives and axes and fierce looking. They demanded him and his colleague to get out of the motor vehicle. He asked them why they wanted to do such a thing and they told him that it was in relation to an incident at Nipa where one of their businessmen was held up and women were raped. That was the reason for them staging a road block.

13. He explained to them that they worked for a contractor company and they should release them, and that he would relay their message about the incident at Nipa to Oil Search Limited. They refused and demanded him to give the motor vehicle to them. He then saw an albino, who was sitting on the off side seat of an ambulance come out and walked across to him. He was short, light skinned and had a beard. He also wore a cowboy hat. This person stood beside the motor vehicle and talked to him. The conversation took about 2 to 3 minutes. He told him to release the motor vehicle to them for his safety’s sake. He took the key from him and told him that he would keep the motor vehicle as this was what he was looking for until he is compensated and will return it. He then drove the motor vehicle away. He did not know where this person drove it to.

14. The two of them were assisted by an old man and some young boys to the old man’s house where they stayed for about 30 minutes when Mobile Squad 9 from Tari arrived and gave them a lift to Tari police station. When they arrived at the police station at about 3:10 pm, he reported the armed robbery incident to the police and remained there until one of their company vehicles arrived, picked them up and took them to Nogoli. They arrived at Nogoli at about 6:00 pm.

15. The last witness for the State is Mr Pato Baundo. He is the Security Supervisor of Oil Search Limited and based at Hides Gas field at Nogoli. He is also a reserve policeman.

16. On 14th May 2008, he was attending a Court case before the District Court in Tari. The case was adjourned to 1:30 pm and at about 1:10 pm, he accompanied a group of mobile squad policemen from Mt Hagen in an Oil Search Limited motor vehicle to buy lunch. There were about 6 to 7 policemen in the motor vehicle. Since they wanted to eat pork for lunch and as there was no pork to buy in town, they drove to Tigibi to look for pork to buy. On the way, at Wabia market, there was a group of people standing on the road so they slowed down. When they slowed down, an ambulance came up behind them and made a sudden stop. It then sped past them. He did not see the driver of the ambulance.

17. They drove past the market for about 200 to 300 meters and then saw a woman with a dish of pork and stopped. They bought the pork and as they were cutting the pork, he saw a motor vehicle approaching them at high speed and then stopped behind them. Soon after that, the same ambulance they had seen earlier at Wabia market approached them and parked some 200 to 300 meters in front of them. Both motor vehicles were overloaded with men. From both sides, the men converged upon them with bush knives, sticks and stones. They demanded them to give the motor vehicle’s key to them.

18. During that time, he was sitting on the off sider’s seat. There was one man in the crowd who told them that they wanted the key because it was Oil Search Limited’s fault that they had lost all their goods at Nipa. Another man insisted that he should talk to their spokesman and pointed to the ambulance. He then walked over to the ambulance. There, he saw a man sitting in the driver’s side. He was short, stocky built and had albino type skin. He could tell that this person was a leader because his meeting with this person drew a big crowd. The people gathered around them as he spoke to this person. This person told him that he was going to hold onto the motor vehicle because Oil Search Limited based at Moro carried out an eviction exercise on all Tari people living around Moro area and trucks were hired by it to transport them to Tari.

19. On the way, the Nipa people blocked the road and kidnapped the rear police escort vehicle. After two days, police went to Nipa and rescued the policemen concerned. In the process, police shot one Nipa man. As a result, all motor vehicles travelling along the road at Nipa were victimized by the Nipa people. The Nipa people held up their motor vehicle and stole store goods, personal items including the motor vehicle. For this reason, he would hold onto the motor vehicle until Oil Search Limited and appropriate government authorities address the problem. This person also told him that he would list all the stolen goods and personal items at Nipa for Oil Search Limited to compensate.

20. After sometimes of exchanging strong and harsh words, they were allowed to go free but on condition that he would convey this person’s demand to the government authorities and Oil Search Limited. On the way, he heard on his two way radio that two other company’s motor vehicles were stolen at Tari. At the police station in Tari, he learnt that one of the stolen motor vehicles belonged to Oil Search Limited and the other belonged to a landowner company.

21. He gathered more police manpower and proceeded to Wabia that same afternoon to negotiate the release of the two motor vehicles. The negotiation failed because the same person whom he had spoken to earlier that day was also there and very vocal. This person told the police that he would not release the motor vehicles. As a result of the break down in the negotiation, they organized another meeting to be held at the police station a few days later and returned to the police station. At the police station, he lodged a formal complaint for the police to arrest the ring leaders of the armed robbery and police went to look for them.

22. He went for a break (holiday) in Port Moresby about 3-4 weeks after the armed robbery incidents and whilst in Port Moresby, he saw this same person at down town Port Moresby. He reported him to the police at Port Moresby Police Station and they assisted him by apprehending this person. For purposes of reporting this person’s apprehension to his superiors, a formal information was laid upon this person by the police CID at Boroko police station. After two days, this person was conveyed to Mt Hagen for committal proceedings to take place.

23. He was able to identify the accused in the dock as the person when he saw in the ambulance at Wabia on 14th May 2008 because first, he remembered clearly seeing the accused at Wabia. He was standing about 1 meter away from the accused as the accused was in the ambulance and they talked for about 10-20 minutes. Secondly, he had seen him around Tari town before the armed robbery incidents since Tari town is a small place.

24. The accused’s record of interview in the Pidgin and English versions were tendered by consent and marked as Exhibit "P1".

25. The accused is the first witness for the defence case. He is from Kikita village which is located near Tari township. It is located at the end of the Tari airport runway. He is married with five wives and twelve children. Two of his wives come from Wabia. He is a businessman and owns a club in Kikita village. He does not know the reason for being arrested and charged for armed robbery or even for being in Court. He did not take part in the armed robberies. On the morning of that day, 14th May 2008, he was in his house after he opened up his club house. About 12:00 noon, he was at the bus stop trying to catch a bus to Wabia to see two of his wives who are living there when two people came and hijacked a motor vehicle right in front of his eyes. He saw a short light skinned person driving the motor vehicle. His name is Talu Yukai. He was standing about 6-7 meters when he saw the armed robbery.

26. After seeing the armed hold up, he got on a PMV and went to Wabia. When he arrived at Wabia, people told him that two men, by the names of Talu and Bera hijacked a motor vehicle owned by Oil Search Limited. These two men got the key and took off with the motor vehicle. When they were talking about the armed hold up, a police vehicle arrived. This was around 4:00 pm. The policemen asked for the names of the men involved in the armed robbery and the people gave the names of Talu, Yukai and Bera. They told the policemen that Talu, Yukai and Bera were the ones involved in the armed robbery. But Talu was not around.

27. While he was there, Talu and Bera’s people requested him to go to them so that they could tell him the reason for holding up the motor vehicle. He was then to convey their reason to the police. He went with three other village leaders to talk to Talu and Bera’s people. He and three other village leaders were told by Talu and Bera’s people that Nipa people had stolen their motor vehicle after a Nipa man was killed by police for attacking the police whilst transporting Tari people from Moro following an eviction exercise organized by Oil Search Limited at Moro. That is why they had held up the motor vehicles until the problem is resolved.

28. After investigating the reason behind the armed robbery, he and the other three village leaders went and told the police. They did not add or subtract what they were told to relay to the police. At the same time, while he was there, the policemen told these three men, Yukai, Talu and Bera to return the motor vehicle but Bera told them that they would return the motor vehicle only if their motor vehicle was returned to them. One of the village leaders told Yukai to return the motor vehicle to the police station or some where else. Since no agreement was reached, it was agreed that a meeting would be held at Anopi police barracks the next day to try and resolve the dispute. After that, everyone dispersed.

29. The next day, 15th May 2008, he and the leaders gathered at Anopi police barracks. Some representatives from Oil Search Limited and policemen also attended. The policemen told the people to return the motor vehicles. But the people still refused. They told the police that 6 of their village women were raped and store goods were stolen and unless they are compensated, they would not return the motor vehicles. The Oil Search Limited representatives asked for a list of all the stolen store goods to be provided to them and then went away.

30. At another meeting at the police station, policemen attended and representatives from Oil Search Limited also attended. The people from Wabia also attended. He also attended and Mathew Yukai brought a paper and asked him to sign it and he did. He signed it as a clan or village leader. The Oil Search Limited representatives took the paper and he and the other village leaders told the people to return the motor vehicles. After that, they all dispersed.

31. After the meeting at the police station, he went to Port Moresby on a business trip. He was in Port Moresby for two weeks when he was arrested by police. When he asked the police for the reason for his arrest, they told him that it was in relation to the armed robbery of the motor vehicle at Wabia. He told the police that he did not hold up the motor vehicle. It was Talu and Bera. He also told the police that as a village leader, he and other village leaders negotiated for the release of the motor vehicle. When he told the police this, they told him that it was a matter for the Court to decide. But the accused maintained his innocence.

32. The second witness for the defence is Mr Hama Panguma. He is the Chairman of Law and Order Committee in Komo-Magarima Electorate. He is responsible for negotiating peace in the community and lives in his village.

33. On 14th May 2008, he was at Wabia. Around 12:00 noon, he saw Talu, Bera and Berari hold up a motor vehicle. It was in retaliation to a hijacking of their motor vehicle, rape of women and stealing of store goods at Nipa by Nipa people. He tried to stop them but they went ahead and hijacked it. He told them that it was a public road and that they have no right to hold up the motor vehicle but they insisted and also threatened him. Also, since they were young men, they overpowered him and drove off. It was Talu who drove it away because he saw Talu driving, whilst Bera and Berali sat beside him. These three men were not in Court but may still be walking around freely in the village.

34. He knew these three men because they came from the same area as him. The area is called Wabia but they lived in different houses at different locations in Wabia. They use the same market at Wabia and meet each other from time to time. Talu is an albino and sometimes grew his beard. After the armed robbery, he did not know what became of the motor vehicle.

35. The last witness for the defence is Mr Mokola Hombano. He is from Piaganda village in Wabia and is a Village Court Magistrate. On 14th May 2008, at about 12:00 noon, he was at Wabia when he saw Talu Peperaye, Bera Tamure and Bereli Yukai brought an ambulance and parked it on the road to block the road. It was near Wabia market. They then held up an Oil Search Limited’s motor vehicle. It was a Toyota 10 seater, white in colour.

36. They said they held up the motor vehicle because Nipa people had called them and told them that police had killed a Nipa man and in retaliation, they robbed their motor vehicle at Nipa. For this reason, these three men held up Oil Search Limited’s motor vehicle. He told them to wait until they sort the problem out but they overpowered him and drove off. He went home but in the afternoon around 4 o’clock, the accused came to confer and bring a report to Anopi police barracks. Four village leaders were hand picked to relay the message to the police. The accused was one of them and he was the other. The other was Howard Horope. They were to relay the message that Yukai’s people would release the motor vehicle later. They went to Anopi police barracks and relayed the message to the police and returned to the village at dusk.

37. He did not participate in any other meetings held between the police and the villagers. He knew these three men because they came from a small village called Uruli and Uruli is in Kera No 2 near Alua river in Wabia area. Wabia has a community school and a market where people gather. His village is also closed to the three men’s village but they have resettled near the main road because they are running a business there. As a result, he knew them very well.

38. From the evidence of the State witnesses and the defence witnesses, it is neither disputed nor denied that first, there were two armed robberies on 14th May 2008. The first one occurred in town and the second one at Wabia, near a market. Secondly, an Oil Search Limited motor vehicle driven by Mr Gewane was held up and taken away. It was a Toyota land-cruiser utility, white in colour and borne registration no CAO-640. In the second armed robbery, it was a motor vehicle owned by Gigira Development Corporation Limited and driven by Mr Kemga. It was a Toyota 10 seater, white in colour and borne registration no CAO-631. The last matter is that the two motor vehicles were returned to their respective owners sometimes later.

39. The disputed facts are first, whether the accused was the person who was with the group of men who held up Oil Search Limited’s motor vehicle in town and secondly, whether he was the person who was with the group of men who held up Gigira Development Corporation Limited’s motor vehicle at Wabia. In both cases, it was said that the accused was the driver of the ambulance. If he is not the person, did he aid or abet the commission of the two armed robberies.

40. The first issue is one of identification. Was the person seen in the ambulance first, at Tari town and secondly, at Wabia, the accused? There are two versions presented before the Court. According to the State witnesses, the accused was the person who led the group of men around Tari town and Wabia in an ambulance to carry out the armed robberies. First, was at Tari town where he and his men held up Mr Gewane and took the Toyota land-cruiser utility from him and detained it. Second was at Wabia, where he and his men held up Mr Kemga and removed the Toyota 10 seater from him.

41. The reasons the State says that it was the accused is because the State witnesses’ description of the person fits the physical appearance of the accused. That is, the State witnesses said that this person they saw was short, stocky, with beard and was light skin or albino.

42. On the other hand, the defence’s version is that, it was not the accused who drove the ambulance, but another person. This other person is called Talu Peperaye. The State witnesses might have mistaken the accused for Talu Peperaye because they share some common physical features like they are light skinned or albino and short.

43. Before I determine the issue of identification of the accused, let me briefly restate the law on identification. In John Beng -v- The State [1977] PNGLR 115; (1977) SC112, the Supreme Court said this in relation to the dangers of identification evidence and quoting from the head notes:

"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."

44. As Kirriwom J, stated in The State -v- Lasi Mauwe & Maki Onopika (1999) N1885 which I respectfully adopt here:

"This is an appropriate case where the warning sounded in John Beng v The State [1977] PNGLR 175 and subsequently discussed in Biwa Geta v The State [1988-89] PNGLR 153 are borne in mind because the witnesses here are identifying two strangers whom they have not seen or spoken to before. It is therefore crucial for the Court to weigh up all the evidence quite critically before relying on this identification evidence."

45. It has been said that trial judges should warn themselves that the reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those may possibly lead to error. For example:

* How long was the period of observation;

* In what light was it made;

* From what distance was it made;

* Was there anything about the person observed which would have impressed itself upon the witness;

* Was there any special reason for remembering the person observed;

* How long afterwards was the witness asked about the person seen;

* How did the description then given compared with the appearance of the accused;

46. Each of these matters must be considered in every identification case. See Judges Bench Book (1st ed 2008) at p 25.

47. I remind myself of the dangers inherent in identification of accused persons and I must weigh up all the evidence quite critically before relying on the identification evidence. I proceed on this basis to determine the issue of whether or not the accused is one of the persons involved in the armed robberies. That is, if he was the driver of the ambulance that day. Thus, the issue is; what evidence is there to prove that the accused is one of the men involved in the armed robberies on 14th May 2008?

48. I consider the evidence of the first State witness, Mr Gewane. Does he positively identify the accused? Generally, Mr Gewane was an impressive witness. He spoke confidently and was thorough in his evidence as to how the armed robbery took place. The first matter which I find in favour of this witness is that, the armed robbery took place in broad day light. That is, the first armed robbery took place at about 12:00 noon and there is no evidence nor is it suggested that it was a dull or gloomy day on that day. The same can be said of the second armed robbery which was said to have taken place around 2:00 pm. Therefore, lighting is not a problem on that day so as visibility. It could mean that Mr Gewane could have seen the accused in the ambulance.

49. The second matter which I find favours this witness is that, the ambulance which the accused was said to be driving parked about 3 meters from him. The third matter which I find in favour of this witness is that, after the armed robbery, he saw the accused the next day at Anopi police barracks. He was standing about 10-15 meters away from the accused. Therefore, the distance is close and it could mean visibility is also good. Further, since it was only a day after he saw the accused, his memory is still fresh about the identity of the accused.

50. Against those considerations, the first difficulty I have with this witness is that, he has never seen the accused before the armed robbery that day. Secondly, he did not see the accused in the ambulance even though the ambulance was parked 3 meters away from him. Thirdly, there were many men who converged upon him while he was in the motor vehicle. Fourthly, it was when the driver of the ambulance drove off that he said he saw him. He said he saw a person like the accused because this person was short and light skin or albino. The fifth difficulty I find with this witness is that, when he saw the accused the next day, he did not tell the police that it was the accused who was with the group of men who held him up the previous day.

51. When I consider all these matters in relation to the first State witness, the first matter that does not persuade me that he positively identified the accused is that, the observation or encounter with the accused was very brief. He said in cross examination, 5-10 minutes but I am not persuaded that it was that long because that was the time it took for him to converse with the group of men that converged upon him and demanded the key. Thus, in my view the encounter or observation of the accused was less than 5-10 minutes.

52. I say it was less than 5-10 minutes because, he did not see the driver of the ambulance until the driver drove off. Thus, in my view, this supports my view that he did not have enough time to see the accused. It was a fleeting moment given that the person in the ambulance was driving off and it would have been quite difficult for him to see properly the driver of the ambulance. This view is further strengthened by the fact that, this witness has never seen the accused before and has admitted in cross examination that he has never seen the accused prior to the armed robbery. Thus, when the encounter or observation of the driver is very brief, it would have been quite difficult for this witness to positively say that the accused is the person who drove the ambulance.

53. The second matter is that, he has admitted that he was apprehensive when the group of men converged upon him as he sat in the motor vehicle. In such a situation, common sense and logic would dictate that his concentration would have been on the men who have converged upon him and not anywhere else. When he got out and the men got into his motor vehicle and drove off, he would not have been wary of others around him but his motor vehicle. That is where I do not believe him when he said that he saw the accused in the ambulance as it sped off.

54. The third matter is that, if his memory is that fresh since he said he saw the accused the next day at Anopi police barracks, how comes he did not tell the police or the Oil Search Limited Security Supervisor that the accused was the person who was with the group of men that held him up the day before? It is to be noted in this regard that, he admitted in cross examination that he did not tell the police at that time at Anopi police barracks that the accused was the person who drove the ambulance. He also admitted in cross examination that, even after the meeting at Anopi police barracks, he did not report the accused to the police until two months later when he was told that it was the accused who drove the ambulance after the police had arrested the accused.

55. But why did he not tell the police that the accused was the perpetrator or driver of the ambulance there and then? Why did he leave it until the accused was arrested and charged two months after the armed robbery incidents? These are questions that the State has either left unanswered or unsatisfactorily answered.

56. The final matter is that, if the accused was the driver of the ambulance and was involved in the armed robberies, why would he turn up at the meeting at Anopi police barracks to resolve the dispute with the police and Oil Search Limited’s representatives? Commonsense and logic would dictate that if he was involved in the armed robberies, he would have stayed clear of that meeting so as to escape being identified and apprehended by the police. Yet he did turn up at the meeting. To my mind, this shows that his mere presence was something more than just a coincidence, a matter which I will discuss in more detail later, when I consider the evidence of the accused.

57. In pointing these aspects of this witness’s evidence out, it is to be noted also that this witness has not seen or met the accused prior to the armed robbery on 14th May 2008. Thus, it would be correct to say that the meeting of 14th May 2008 was the first. This means that, as noted above, the issue is one of identification rather than recognition. Weighing out all these aspects of the evidence of this witness, I am not satisfied that he has positively identified the accused as the driver of the ambulance that was involved in the armed robbery of his motor vehicle. For these reasons, I find Mr Gewane’s evidence unreliable in so far as identification of the accused is concern.

58. I turn to the second State witness, Mr Paul Kemga. Again, I ask the same question, does he positively identify the accused? This witness is also generally good. He spoke confidently and was calm. He also gave a detail story as to how the armed robbery took place at Wabia. Again, the first matter which I find in favour of this witness is that, the armed robbery took place in broad day light. That is, it took place at about 2:00 pm and there is neither evidence nor a suggestion that it was a dull or gloomy day on that day. Therefore, lighting is not a problem that day. It could mean that Mr Kemga could have seen the accused. The second matter that favours this witness is that, he said that the accused was standing near him as he sat in the motor vehicle when they talked. Therefore, distance is not a problem so as visibility.

59. But against these two matters, the conversation between him and the accused took about 2-3 minutes. Therefore, it would be fair to say that the conversation was very brief, hence the chances of correctly identifying the accused would have been slim. Secondly, this witness was surrounded by a group of men. He did not say how many but surely, there would have been more than one at that time given his own evidence that he observed many people standing beside the road at that time. Therefore, the situation must have been tense and this witness must have also been apprehensive.

60. In this regard, it is interesting to note that this witness did not say in his evidence what his immediate reaction was when he encountered the road block. Yet, he said that the people were armed with axes and bush knives and were fierce looking when he approached them. I find it hard to believe that upon encountering a hostile and tense area or environment as described by him in this case, he was cool and relaxed as he spoke to the people who demanded the motor vehicle from him. I say this because in a tense and hostile environment like this, it is only natural that one would have been apprehensive and frighten and would not have been thinking rationally. In other words, he would have been in a state of panic and helplessness.

61. It would also follow that one’s observation would have been distorted or distracted when faced with such a situation. As a result, it would have been difficult to make a sound judgment of things at the given time. That is why I find it quite difficult to accept that all was well for Mr Kemga when he found himself in the middle of a road block surrounded by fierce men, armed with axes and bush knives.

62. The next matter I find against this witness is that, it took about two months before the accused was arrested and charged by the police. Yet this witness was able to say that the person he saw at the road block at Wabia was the accused. The question that immediately comes to one’s mind is, why didn’t he tell the police about the accused immediately after the armed robbery so that the police could have arrested him there and then? This question, to my mind has not been satisfactory answered by the State.

63. The final matter is that, there appears to be some inconsistencies in the evidence of this witness and also his evidence seems to contradict the evidence of Mr Gewane. In relation to inconsistencies, it is his evidence in chief, that while he was talking to the group of men at the road block, he saw an albino who drove an ambulance come up to him and told him to release the motor vehicle to them for his safety’s sake. This person took the key from him and drove the motor vehicle away. Later, in his evidence in chief that, he could not see the driver of the ambulance but was able to see the off sider. The off sider was the albino. This person came out of the ambulance and walked across to him. He demanded the key and took it from him. He does not recall who drove his motor vehicle and also the ambulance away.

64. In relation to the contradictory evidence of witnesses, as noted in Mr Gewane’s evidence, he said the person he saw driving the ambulance as it sped off was like the accused. On the other hand, Mr Kemga said that the person he saw like the accused at the road block at Wabia was seating on the off sider’s seat of the ambulance. This person came and took the key from him but he does not recall who drove his motor vehicle away.

65. To my mind, these discrepancies in the evidence of these two State witnesses, more so Mr Kemga undermines their ability to properly identify the accused. In the end, I conclude that whilst Mr Kemga may be confident in identifying the accused as the driver of the ambulance that was involved in the armed robbery at Wabia, I am not too certain that he positively identified the accused in light of the observations I have posed above, which have not been satisfactorily explained by the State.

66. This leaves the last State witness, Mr Baundo. Does his evidence clarify the doubts in my mind and establish that the accused is the one involved in the armed robberies? That is, the driver of the ambulance. Mr Baundo is also an impressive witness who gave a detailed and neatly set out story in relation to his encounter with the accused at Wabia after the armed robberies.

67. The first matter which I find in his favour is that, his encounter with the accused was in broad daylight. In other words, there is no suggestion or evidence to say that the encounter with the accused was on a dull or gloomy day where visibility might be poor. The second matter is that, the encounter with the accused took a few minutes. He said about 10 minutes. Thus, the encounter with the accused would have been long enough for him to see the accused properly. The third matter is that, he was standing near the accused whilst the accused was sitting in the driver’s seat of the ambulance. He said, he was standing next to the door of the ambulance. Thus, the distance was very close to the accused, meaning visibility is perfect.

68. Against these matters is first, the tense atmosphere at that time. It is interesting to note that despite the tense situation, he did not say in his evidence that he was frighten or apprehensive. Yet, he said that the men who converged upon him and other policemen were armed with axes, bush knives, sticks, stones etc... He said in cross examination, 40-50 armed men. I find it hard to believe that upon encountering a hostile and tense area or environment as described by him in this case, he was cool and relaxed as he spoke to the people who demanded the motor vehicle from him. I say this because in a tense and hostile environment like this, it is only natural that one would have been apprehensive and frighten and would not have been thinking rationally.

69. It would also follow that one’s observation would have been distorted or distracted when faced with such a situation. As a result, it would have been difficult to make a sound judgment of things at the given time. That is why I find it quite difficult to accept that all was well for Mr Baundo when he and his colleagues found themselves surrounded by 40-50 armed men.

70. The second matter I find against this witness is that, if he said that he saw the accused at that time, why did it take more than two months for him to eventually have the accused arrested and more so in Port Moresby? After all, the accused lives at Kikita village and travels to and from Wabia to visit his two wives from time to time, as he says, and not to mention the close proximity to Tari town and the police station. Why did it take that long as I find it hard to accept that it had taken the police and this witness so long to apprehend the accused? It took them more than two months to locate and apprehend him and of all places, in Port Moresby. Surely, there must have been a reason for the delay as given the close proximity of the accused, it would not have been difficult to locate and apprehend him soon after the armed robberies.

71. On that note, perhaps it should be emphasized here too that, there is no evidence from the State witnesses including this witness that police were looking or made attempts to look for the accused but have been unsuccessful. There is also no evidence from the State witnesses that the accused avoided the police. Thus, in the absence of any evidence to the contrary, it could only mean that the accused could have been easily located and apprehended in Tari immediately after the armed robberies. What this means is that, it creates doubt in my mind whether police including this witness had the correct identity of the accused as the perpetrator. I think they were not too sure. That is why it took them a long time to eventually make up their minds that it may have been the accused and proceeded to apprehend him.

72. Thirdly, I find his evidence contradictory and confusing in respect of the location of the ambulance and the other motor vehicle which he described as a Toyota land-cruiser, white in colour. First, he said as they approached Wabia market, they slowed down and an ambulance over took them and went on. After they left Wabia market and had travelled for about 200-300 meters, they stopped when they saw a woman with a dish of pork on the road side. The ambulance approached them and parked some 200-300 meters in front of them. This was the second time he said he saw the ambulance. I do not know whether the ambulance had turned around and returned to where they had parked or that the ambulance came from behind them with the Toyota land-cruiser and stopped in front of them while the Toyota land-cruiser parked behind them.

73. Further, I do not know if the Toyota land-cruiser was tailing them at the rear whilst the ambulance was monitoring them in front until they stopped to buy pork and the Toyota land-cruiser and ambulance also stopped. I raise all these matters because Mr Baundo does not say so in his evidence or has clarified where and how the ambulance approached them at that moment after leaving Wabia market. It is also to point out the discrepancies in his evidence. The significance of identifying these discrepancies is that, they create doubts in my mind as to whether Mr Baundo definitely saw the accused in the ambulance during that encounter.

74. I say this because, I do not think the encounter proceeded immediately after the armed robbery at Wabia. I think the encounter with the accused took place sometimes after the armed robbery. That is why Mr Baundo does not say in his evidence that he saw the armed robbery of the motor vehicle belonging to Gigira Development Corporation Limited at Wabia that day. In fact, it is his evidence that he met the accused after the armed robbery when the accused and his men drove up in two motor vehicles, one an ambulance and the other a Toyota land-cruiser, white in colour. Thus, he did not see the actual armed robbery at Wabia. He only witnessed the events that took place after the armed robbery. So what does this mean?

75. In my view, it means that there is a possibility that the accused was at Wabia after the armed robbery of Gigira Development Corporation Limited’s motor vehicle when Mr Baundo saw him. This is where I consider the evidence of the accused where he said he went to Wabia after the armed robbery had taken place relevant and sensible. It is also chronological and logical when one considers the timing of the two separate armed robberies. In this regard, it is interesting to note that the first armed robbery took place in Tari town at about 12:00 noon and the second one took place at Wabia, near the market at after 2:00 pm.

76. The accused said in his evidence that he arrived at Wabia around 3:00 pm. Upon his arrival at the bus stop, he learnt immediately through people there that there was an armed robbery of a motor vehicle belonging to Gigira Development Limited earlier that afternoon and Talu Pepereya, Bera Tamure and Berali Yukai were the persons who were involved in the armed robbery. He also learnt that the armed robbery of the motor vehicle had something to do with the Nipa’s armed robbery incident.

77. When he arrived at the market, police also arrived. He does not name or identify the policemen who had arrived but said that he was one of the four village leaders hand picked to talk to the police that afternoon. Based on this mandate, he took it upon himself with the assistance of other three village leaders to negotiate an amicable solution to the dispute with Talu’s people and Oil Search Limited.

78. I think it was around that time that Mr Baundo might have seen him. That is, during the negotiations that afternoon. The accused’s evidence would be consistent with first, Mr Baundo’s own evidence where he said that he had returned to Wabia around 4:00 pm to negotiate the release of the motor vehicles after he had beefed up police manpower. This confirms my initial view that the accused may have been seen at Wabia by Mr Baundo after the armed robbery had taken place.

79. Also, it is not only consistent with the version of events given by the accused in the Record of Interview (Exhibit "P1"), but also reaffirms it. For example he gave the following answers to Questions 13-18:

"Q13: Where were you when this trouble happened on Wednesday 14th of May 2008?

Ans: I was at Kikita and I went down to Wabia in the afternoon. I will tell you who got the vehicle.

Q14: Gigira Development Corporation’s vehicle is a white 10 Seater Toyota landcruiser with registration CAO-631. Who actually got that vehicle from the driver?

Ans: Bera Yukai. He is Mathew’s brother.

Q15: Who actually drove Gigira Development Corporation’s vehicle away when Bera got it from the driver?

Ans: Bera himself drove the vehicle.

Q16: How many were with Bera at that time?

Ans: I went down to Wabia and heard about it. I don’t know how many of them.

Q17: Oil Search vehicle is a white Toyota land cruiser open back (utility) with registration number CAO-640. Who actually drove that vehicle?

Ans: That was Talu Yukai, He is Mathew Yukai’s son.

Q18: How many men were with Talu Yukai at that time?

Ans: The got the vehicle when I arrive (sic) there. There were 50-60 people there. I am from Tari-Pori. We have 3 electorates, Tari-Pori, Komo-Magarima and Koroba-Kopiago."

80. Fourthly, looking closely at the Record of Interview (Exhibit "P1"), there is neither a mention of an ambulance nor a suggestion that the accused was seen driving an ambulance that day. For these reasons, I am not certain if Mr Baundo had seen the accused in the ambulance at Wabia earlier that day. If he had, as I said, I think it was much, much later, say, between 3:00 pm and 4:00 pm.

81. This is where I think the evidence of the accused and his two witnesses become handy. In respect of the two witnesses, Messrs Panguma and Hombano, whilst I was and am not particularly impressed with their demeanour during evidence as they were evasive and the Court had to intervene at some stage to direct them to answer questions asked by the State prosecutor during cross examination, I must say that their evidence generally corroborates the evidence of the accused.

82. For example, Mr Panguma said that first, he saw Talu Peperaye, Bera Tamure and Berali Yukai hold up a motor vehicle. Secondly, it was in retaliation to a hijacking of their motor vehicle, rape of women and stealing of store goods at Nipa by Nipa people. Thirdly, Talu is a light skin and short person. Mr Hombano also gave the same kind of evidence as Mr Panguma.

83. But I do not believe them when they said in cross examination by the State prosecutor that they did not see the accused at Wabia on the afternoon of that day. I know they had seen him because the accused said he was present but only after the armed robbery of the motor vehicle belonging to Gigira Development Corporation Limited. But I know the reason for them to deny seeing the accused there and that is, they did not want to give him away that easily.

84. If they admitted seeing him, it would expose the accused. It would show that he was present at the scene of the armed robbery and connect him to the offence earlier in the afternoon. Also, it would show that the accused was the person behind the armed robberies or adopting the phrase used by the State, "ring leader". But in my view, their denial of the presence of the accused does not greatly discredit or diminish their credibility and evidence generally to the extent that the Court should reject them.

85. On the other hand, as I said above, their evidence corroborates the evidence of the accused that there was an armed robbery at Wabia on the afternoon of that day and that Talu Peperaye, Bera Tamure and Berali Yukai were involved; not the accused. And the reason for the accused’s presence is as he had said; to negotiate an amicable solution to the dispute. That is why Mr Baundo said that the accused was very vocal when he saw him. But I accept the evidence of the accused that he was merely conveying the demands of Talu Peperaye and his line to the police. As there was no agreement reached between the parties, they rescheduled the meeting to the next day.

86. In respect of the evidence of the accused, first, he maintained that he was not involved in any way whatsoever in the actual hold up of the motor vehicles. In relation to the first armed robbery at Tari town, he was a spectator and in relation to the second one at Wabia, he was not there. Secondly, it is relevant to note that much of the questions directed by the State prosecutor to the accused in cross examination centred around the accused’s knowledge of and association with one Mathew Yukai, whom the State claims is a co accused of the accused. The reasons for the State approaching the accused in this manner is two fold.

87. First, the State claims that the accused and Mathew Yukai were business partners or associates. Questions in cross examination by the State prosecutor attempted to elicit more information and admissions of the accused’s knowledge of Mathew Yukai and his business partnership or association with this person so as to connect him to the armed robberies. That is, he was involved in driving the ambulance to hold up the two motor vehicles on 14th May 2008 in retaliation to his loss of goods along with Mathew Yukai’s goods at Nipa.

88. Secondly, the questions were aimed at discrediting the accused, so that the Court should not accept his evidence as the truth of the events that had unfolded that day and the subsequent days, more so about his presence after the second armed robbery at Wabia and the reason for his presence.

89. The first problem with the State’s approach to this case is that, no evidence had been led by the State to show that the accused knew Mathew Yukai and that they were business partners or associates which would in turn give the State a basis to ask questions in relation to these aspects to the accused in cross examination. I say this because the only evidence before the Court is that, there was an armed robbery at Nipa where property and a motor vehicle were stolen including rape of 6 women from Wabia. None of the State witnesses said that the property and motor vehicle belonged to Mathew Yukai or the accused for that matter although the defence witnesses mentioned that Talu, Bera and Berali are related to Mathew Yukai.

90. Be that as it may, it is one thing to say that the property and motor vehicle belonged to Mathew Yukai and it is another thing to say that Talu, Bera and Berali are related to Mathew Yukai that is why they had an interest in the property and motor vehicle. The State bears the onus of proof and must bring evidence to establish the nexus between Mathew Yukai or the accused for that matter and Talu, Bera and Berali.

91. In my view, what the State had done is in breach of the fundamental rule in Browne -v- Dunn (1893) 6 R 67 HL which I am sure both counsel are fully aware of. It is a rule of fairness. See Cosmos Kutau Kitawal & Christopher Kutau -v- The State (2007) SC 927 and my recent judgment of The State -v- Michael Wapidik & Wesley Michael (No1): CR No 489 of 2007 (Unnumbered & Unreported Judgment of 15th July 2009).

92. In Michael Wapidik’s case (supra), a case of armed robbery where an objection was raised by the State in relation to evidence being led by the defence witnesses in respect of alibi as no questions had been asked by defence counsel to State witnesses in relation to alibi during cross examination, I ruled in favour of the objection and directed that no evidence be led in respect of alibi. There, I observed at pp 18-19 of the judgment:

"It is my respectful opinion also that there is a stark difference between an objection raised during the trial where a party is in breach of the rule in Browne -v- Dunn (supra) as opposed to submissions made on verdict after close of all evidence from the parties on the reliability of the evidence of a party’s witnesses in breach of the rule in Browne -v- Dunn (supra) because the resultant effect are different.

The former has the effect of precluding the party in breach of the rule in Browne -v- Dunn (supra) from calling evidence on the matter. This means that the Court will not have the benefit of knowing the evidence of the party in breach of the rule on the matter. In the latter’s case, it has the effect of not completely precluding the evidence but allowing evidence to be called and the Court will decide at the end of the day whether or not to accept the evidence and rely on it. It is a question of weight to be given to the evidence that is in breach of the rule in Browne -v- Dunn (supra).

Since the State has made the call in the present case, I consider that it permissible to raise the object now and let the Court rule on the objection rather than later notwithstanding that the defence has served on the State, notices of alibi. Therefore, I will take the third option suggested by the Supreme Court in Cosmos Kutau Kitawal & Anor’s case (supra) and that is, the defence is precluded from calling evidence of alibi. It follows that, I am satisfied that the State has made out its objection. I uphold it."

93. In the present case, I am surprised that no submissions have been made by defence counsel in relation to this aspect and I am left to do the write up of this judgment without counsel’s input. Nevertheless, in the present case, it is also worth noting that the defence counsel did not raise any objection to questions being asked by the State prosecutor in cross examination of the accused in relation to those matters I have alluded to above. But that does not mean that the evidence is uncontested and must be accepted by the Court to support the State’s case.

94. On the other hand, it shall remain at the discretion of the Court. Since no evidence has been led by the State in relation to the accused’s knowledge of Mathew Yukai and his business partnership or association with Mathew Yukai, the defence counsel has not been given the opportunity to ask questions in cross examination to the State witnesses in relation to those matters. For this reason, I am of the opinion that it is unfair for the State prosecutor to ask questions in cross examination in relation to those matters. It is also unfair for the State to make a case based on evidence that is in breach of the rule in Browne -v- Dunn’s case (supra).

95. In the circumstances, I place no weight on the answers that the accused gave to questions asked by the State prosecutor in respect of his knowledge of Mathew Yukai and his business partnership or association with Mathew Yukai so as to draw a nexus between the accused and Mathew Yukai, which would in turn connect the accused to the armed robberies. It follows too that I give no consideration to the submission of the State prosecutor that because the accused knew Mathew Yukai and was his business partner or associate, he led the group of men to hold up the motor vehicles by driving the ambulance on 14th May 2008.

96. The second problem with the State’s approach is that, what the State prosecutor attempted to do is to elicit more information and admissions from the accused in relation to his knowledge of Mathew Yukai and his business partnership or association with Mathew Yukai so as to connect him to the armed robberies. This cannot be allowed because it is trite law that, in a criminal trial, the burden of proof is always on the prosecution, namely the State.

97. The State bears the onus of calling witnesses to give evidence of the accused’s prior knowledge of Mathew Yukai and his business partnership or association with Mathew Yukai. Not the other way around. In my view, what the State prosecutor has done is an attempt, if not, a ploy to reverse the burden of proof from the State to the defence. For this reason too, I place no reliance on the answers of the accused. It follows, there is no evidence before the Court to connect the accused to Mathew Yukai, hence the armed robberies.

98. It follows that, there is no reason for me to doubt the evidence of the accused or to reject them simply because he told lies in his answers to the questions of the State prosecutor in relation to his knowledge of Mathew Yukai and his business partnership or association with Mathew Yukai. On the other hand, I accept his evidence that he went to Wabia after the second armed robbery and also after seeing the first one at Tari town. In other words, he was not the driver of the ambulance that went around with the group of men and held up the two motor vehicles. It was someone else.

99. I also accept the defence submission that the State witnesses could have mistaken the accused for someone else because there is evidence from the defence witnesses (Accused and Messrs Panguma and Hombano) suggesting that the State witnesses could have mistaken the accused for Talu Peperaye since Talu is also a short and light skinned person as the accused. It is also worth noting that all three State witnesses have admitted in cross examination by defence counsel that there are other light skinned people or albinos in Tari.

100. Thus, given that Talu Peperaye is light skinned and that it is accepted that there are other light skinned persons or albinos in Tari, I cannot rule out the possibility of the State witnesses mistakenly identifying the accused as the driver of the ambulance. Only an identification parade conducted by the police of possible suspects could have settled this issue prior to the trial but it had not been done.
When I look at the entire circumstances of the case, I must say that I am not entirely satisfied that the State witnesses have positively identified the accused as the driver of the ambulance, hence involved in the armed robberies on 14th May 2008. On the other hand, I find that the accused was present at Wabia well after the second armed robbery.

101. This leads me to the next issue, and that is; is there sufficient evidence to show that the accused aided and abetted the commission of the armed robberies? The State submits that the accused is a principal offender and should be held responsible for the armed robberies by virtue of section 7(1)(a)&(b)&2(a)&(b) of the Criminal Code. It submits that, this is because he actively participated in the "talks" or negotiations between Talu Peperaye and his line and the police on the afternoon of that day at Wabia.

102. Section 7, which the State relies upon states:

"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;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(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) counselling or procuring its commission."

103. As I have found above, the accused was present at Wabia when police arrived to negotiate the release of the two motor vehicles. It has been held that mere presence at the commission of the crime does not in itself constitute a person an aider and abettor. See Regina -v- Opu Anuma (1974) N801. It has also been held that it is not enough that the presence of the accused has, in fact, given encouragement for it must be proven that the accused intended to give encouragement and that the accused wilfully encouraged. In other words, there must be an intention to encourage and encouragement in fact. See Agiru Aieni -v- Paul Tahian [1978] PNGLR 37.

104. In the pre independence case of Regina -v- William Taupa & Ors [1973] PNGLR 140, Minogue CJ, sitting at Rabaul National Court and presiding over a trial of 14 men jointly indicted for wilful murder of a man at Kabaira plantation on Gazelle Peninsula on 19th August 1971 said this in the head notes of the judgment in respect of the application of section 7 of the Criminal Code:

"Although the terminology differs, s. 7 of The Criminal Code substantially reproduces the common law on principals in the first and second degree. A principal in the second degree is one who intentionally encourages the commission of a crime by word, action or by his mere presence. If presence at the commission of the crime is relied on, as distinct from any act or words of assistance, the presence must be willed not accidental and with the intention of encouraging or assisting the commission of the crime charged.

In some circumstances the fact that a person was voluntarily and purposely present at the commission of a crime and offered no opposition to it, although he might reasonably be expected to do so or at least to express his dissent, might afford cogent evidence that he wilfully encouraged the commission of the crime."

105. It is clear from these above cases that there must be "mens rea" apart from the "actus reus". Did the accused intend to commit the offence? The accused said in his evidence that he tried to solve the problem between the villagers, Oil Search Limited and the police by bringing them to reach an understanding in relation to the recovery of the two motor vehicles. He did that because he is a village leader and people in the village regarded him as a leader. He was hand picked along with Mokola Hombano, Howard Harope and Aluza Kondo. On the other hand, it is the evidence of Mr Baundo that the accused was "very vocal" at the time he and the other policemen returned to Wabia to negotiate the release of the motor vehicles.

106. But first, there is no evidence of what was said by the accused at that time to show that he encouraged or had encouraged his men to commit the offence. In other words, is there evidence to show that he either told his men to go and hold up the motor vehicles or that he was angry that the police did not play their part in recovering the property and motor vehicle that were stolen at Nipa? In my view, there is none at all. Thus, how would the Court know the nature of the conversation to determine whether the words uttered by the accused amounted to an encouragement of his accomplices to commit the offence?

107. Secondly, the evidence of Mr Baundo is vague in respect of the actions of the accused at that time. What did the accused do? Did he thump his fist on a table, whirled his bush knife in the air, or accused the police of not performing their duty in recovering the stolen property and motor vehicle from Nipa by pointing his fingers sternly at them? In my view, again, there is absolutely no evidence to establish these matters.

108. In respect of the undated letter signed by the accused and Mathew Yukai which was admitted into evidence and marked Exhibit "D1", I place no weight on it because whilst the accused has admitted signing it, he has also unequivocally denied writing it. He said it was given to him by Mathew Yukai to sign and he did so in the capacity of a villager leader. Further, he did so because the representatives of Oil Search Limited had requested for a list of the stolen property from them to consider making compensation. He also said that he does not read or write. In my view, the letter does not improve the State’s case that he encouraged or had encouraged his accomplices to commit the offence. It is irrelevant as far as the charge of armed robbery is concern.

109. In any case, the letter was given to the police and representatives of Oil Search Limited after the commission of the armed robberies. Thus, in my view, it cannot be held against him in respect of the charge of armed robbery.

110. In returning to the point I made earlier in relation to the accused’s presence at Anopi police barracks on 15th May 2008, it is his evidence that he was present at the meeting at Anopi police barracks to negotiate an amicable solution to the dispute and the release of the motor vehicles. Again, there is no evidence before the Court as to the kind of words uttered by the accused and the kind of actions made by the accused to enable the Court to determine whether the words and actions of the accused amounted to an encouragement to procure the commission of the offence.

111. The only evidence before the Court is that, the accused was present and played the role of a negotiator or facilitator in the negotiation. So where does this leave the Court? It leaves the Court with nothing to pin down the accused with as an aider and abettor to the commission of these armed robberies. For it is the law that mere presence at the commission of the offence does not in itself constitute a person as an aider and abettor. See Opu Anuma’s case (supra). There must be a criminal intention and in this case, I am unable to find any.

112. For these reasons, I am not satisfied either that the State has made out a case against the accused as a principal offender under section 7(1)(a)&(b)&2(a)&(b) of the Criminal Code. It has failed to discharge the onus of proof bestowed upon it and the accused is entitled to an acquittal.

113. All in all, I am not satisfied beyond reasonable doubt that the accused was the driver of the ambulance that went around with his accomplices and held up the motor vehicles on 14th May 2008 or aided and abetted his accomplices to commit armed robberies under sections 386(1)&(2)(a)&(b) and 7(1)(a)&(b)&(2)(a)&(b) of the Criminal Code respectively. I find him not guilty of the charge and acquit him forthwith.

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Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused