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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 151 & 1439 OF 2009
THE STATE
V
ALPHONSE ASAROMBO & TIMOTHY LOKORA
Madang: Cannings J
2010: 15, 19, 20, 22 April,
26 May
VERDICT
CRIMINAL LAW – trial – armed robbery – circumstantial evidence – no identification of accused – Criminal Code, Section 386.
The two accused were charged with armed robbery. The State’s case was based entirely on circumstantial evidence: that there had been an armed robbery, that arrangements were made to hire a dinghy, that the accused were running from the direction of the scene of the robbery, chased by security guards, that they were in a group who boarded the dinghy and instructed the captain to drive at full throttle, that they were apprehended by police while in the dinghy, that in the dinghy was a cash bag stolen in the robbery and weapons and other items resembling those used by those who committed the robbery. One accused gave sworn evidence that he had been taken hostage and forced on to the dinghy against his will. The other accused remained silent. The defence case also focused on defects in the police investigation, particularly on the failure to present any witness identifying either accused as being involved in the robbery.
Held:
(1) The principles to apply when a case is dependent on circumstantial evidence are:
- the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;
- to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;
- the question to ask is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).
(2) The first accused’s evidence that he had been taken hostage was not credible. Other parts of the defence case regarding lack of identification and other direct evidence and defects in the police investigation and allegations of police brutality did not defeat the natural inference arising from the proven facts that the accused were involved in the robbery.
(3) It was not necessary for the State to prove what acts each of the accused actually committed. It was only necessary that the State prove that each accused participated in the robbery in some way.
(4) The only reasonable inference that could be drawn from the proven facts is that each participated in the robbery. Accordingly each accused was found guilty.
Cases cited
The following cases are cited in the judgment:
Devlyn David v The State (2006) SC881
Paulus Pawa v The State [1981] PNGLR 498
The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012
TRIAL
This was the trial of two accused charged with armed robbery.
Counsel
N Goodenough, for the State
J Kolkia, for the accused
26th May, 2010
1. CANNINGS J: On the morning of Monday 8 September 2008 an armed robbery took place at the front of the BNBM Hardware store in Madang town. Two of the store’s employees were held up at gunpoint when they were in a vehicle preparing to go to the bank. A money bag containing K43,491.74 (K17,280.60 cash + K26,211.14 cheques) was stolen. The employees were not physically wounded. The members of the gang left the scene on foot, heading in the direction of the harbour. A short time later the police apprehended the two accused, Alphonse Asarombo and Timothy Lokora, and a few others, in a dinghy on the harbour. Inside the dinghy were the money bag stolen in the robbery and weapons and other items that resembled those used by those who committed the robbery.
2. The two accused are each charged with one count of armed robbery. They pleaded not guilty so a trial has been held. The two employees gave evidence for the State, as did the dinghy operator and the police officer involved in apprehension of the accused and seizure of the items from the dinghy. The employees were unable to identify the accused as being involved in the robbery. The police officer, however, identified them as being in the group apprehended in the dinghy. The first accused gave sworn evidence that he had been taken hostage and forced on to the dinghy against his will. The other accused remained silent.
ISSUES
3. The State presented no direct evidence and rested the case entirely on circumstantial evidence. This means according to the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 that:
4. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:
5. The issues therefore are:
WHAT ARE THE PROVEN FACTS?
6. Mr Goodenough submitted that the following were proven facts:
7. Each of those propositions of fact will now be tested.
8. The fact that the robbery took place and the details of how it was committed, which emerged from the evidence of the two BNBM employees, were not disputed by the defence.
9. At about 10.00 am the two employees, "S", a female accountant, and "M", a male driver, were setting out on a bank run. They both got in the vehicle, S in the front passenger seat and M in the driver’s seat. S was holding the money bag. One member of the gang held a flare gun against M’s neck and grabbed the money bag. At the same time another member of the gang threatened M with a home made gun, pressing the barrel against the back of his right ear. S screamed "Hold up! Hold up" and the gang members fled through the front gate. There was a crowd of people in the car park at the front of the store. S did not get a good look at the face of the person who grabbed the bag. She cannot remember how he looked. M saw the face of the man who held the gun against his head but cannot remember what he looked like. There were about four or five men in the gang. S and M saw them run off in the direction of the PNG Power slipway. They followed them in the vehicle and from a distance saw them get into a dinghy.
2 Arrangements made to hire dinghy
10. This evidence, which came from the dinghy operator, "J", was not contested. J operates a ferry service with his 19-foot Yamaha, 40-hp dinghy between Kranket Island and town. On the morning of 8 September, after he had brought some passengers to town, a man with whom he was not familiar asked if he could hire the dinghy to go to Pig Island for a picnic. J agreed. With J was his crew, a nine-year-old boy. The man gave J K70.00 and asked him to drive the dinghy to the slipway between Lutheran Shipping and PNG Power where they would meet his family who the man said had gone to the supermarket. J steered the dinghy in that direction. On the way they stopped at Rookes Marine to refuel and the man made a call on his mobile phone.
3 The accused chased towards the dinghy and climbed aboard
11. This evidence, which also came from J, was also not contested. They got to the slipway and waited for about three minutes and then a group of four or five young men came running towards the dinghy as they were being chased by some security guards. The group of young men boarded the dinghy and told J to head off quickly, which he did.
4 The accused were in the dinghy when apprehended
12. The evidence about what happened in the dinghy came from both J and one of the officers, First Constable Mathew Giaut, who apprehended them.
13. The police were alerted to the robbery soon after it happened and gave chase in their own boat, powered by a 60-hp motor. The men told J to speed but he was already on full throttle. There was an exchange of gunfire between the dinghy and the police boat. One of the men who had boarded the dinghy at the slipway fired a shot and the police returned fire. Several shots were fired into the water close to the dinghy. The passengers were lying down on the floor of the dinghy to avoid being shot. J was very scared, as was the small boy, who was crying and grabbing J. Neither J nor the small boy were involved in any way with the robbery and did not know the man who hired the dinghy or the men who got on board at the slipway. J was in shock and the boy was traumatised. They had never been involved in an incident such as this before. J cannot remember the faces of any of the men, including the man who hired the dinghy.
14. When the police boat caught up to the dinghy J stopped the dinghy. The police stopped shooting. The dinghy occupants surrendered to the police.
15. All of the occupants of the dinghy (J and the small boy and the man who hired the dinghy and the men – about four or five of them – who boarded the dinghy at the slipway) were ordered into the police boat and taken to the town police station. Amongst the occupants were the two accused.
5 Items seized in the dinghy
16. This evidence came from both J and First Const Giaut. The police boarded the dinghy and seized the following items: two home made pistols, two 20-cm blade knives, two wool caps, a light green money bag (the one stolen in the robbery) containing about K11,000.00 cash, a baseball cap, 2 bullets, a 12-gauge cartridge and a flare gun cartridge. All of these items were admitted into evidence at the trial.
Proven facts
17. I find that all of the above facts relied on by the prosecution have been proven.
DO THE PROVEN FACTS LEAD ONLY TO THE CONCLUSION THAT EACH ACCUSED WAS INVOLVED IN THE ROBBERY?
17. The defence counsel, Mr Kolkia, submits that the answer to this question is no, for the following reasons:
18. I will test each of those submissions and then finally determine the question posed.
19. It is correct that neither S nor M could identify either of the accused. They also said in their evidence that although they were asked to go to Yomba police station later in the day of the robbery, they were not at any stage asked to identify any of the suspects. There was no identification parade. They just saw the suspects from a distance. They were lying face-down on the ground at the back of the police station. It looked as if they had been assaulted or shot.
20. I regard the inability of two of the key State witnesses to identify the accused as inconsequential. This is a case built on circumstantial evidence, not identification evidence.
21. This proposition of fact, if accepted, would make it very difficult for the case against the first accused to succeed. The evidence in support of it came from the sworn testimony of the first accused. He said that he was on his way into town, walking on the side of the road opposite to BNBM Hardware. He was with two of his friends, John and Tom. All of a sudden a group of young men came running up behind them. One of them put a gun at his head, another threatened him with a knife. He was shocked. He had no idea why these men were doing that to him. John and Tom ran to the other side of the road. The men who held him up forced him to the slipway and pushed him into the dinghy. J was the skipper and he saw that there was a small boy on board too. The dinghy was driven into the harbour and then he saw that they were being chased by the police. The fellow who pushed him on to the dinghy fired an open shot. Then the police caught up with the dinghy and he was taken into custody.
22. No other evidence was introduced to corroborate the first accused’s evidence. He said that John and Tom would give evidence but that did not happen. The evidence was left to be assessed on its own merits and in my assessment it is a fanciful story devoid of credibility. Those who committed the robbery left the scene on foot in a hurry. They would have neither the time nor the inclination to take a hostage on their way to the slipway. It just makes no sense. There is no evidence that the group that climbed aboard the dinghy attempted to use any of the occupants of the dinghy as a human shield or dealt with any of the occupants as a hostage. This version of events was not given to the police at any stage (the first accused admitted that in cross-examination). It was not mentioned as a defence until the first accused gave his evidence. It must be dismissed as a recent invention.
3 The dinghy operator was a poor witness
23. Mr Kolkia suggested that J was an unreliable witness as he could not remember the face of the man who hired the dinghy or the faces of any of the other passengers. He could not even identify the accused.
24. My assessment of this submission is the same as for the submission concerning the inability of the two BNBM employees to identify the accused. It does not matter that J cannot identify anyone. There is no doubt that both accused were on the dinghy. First Const Giaut identified them. That is sufficient. J was not a poor witness. He gave clear evidence of the sequence of events. The man who hired the dinghy was obviously working with those who actually committed the robbery. The dinghy was the getaway vehicle.
4 The accused were the victims of police brutality
25. The first accused gave evidence that a number of other suspects were shot by the police and assaulted and several of them had to be taken to the hospital for treatment.
26. This is probably correct but it does not defeat the State’s case that the two accused were involved in the robbery. Allegations of police brutality are matters that may be relevant to the question of the sentence to be imposed on an accused but they are not relevant to the question of whether the accused is guilty of an offence.
5 Some of the money went missing
27. Mr Kolkia highlighted that it emerged from First Const Giaut’s evidence that only about K11,000.00 cash was recovered. What happened to the rest of the cash – about K6,000.00 – and all the cheques? Did the police get this? Mr Kolkia submitted that these unanswered questions showed how poor the police investigation was and added to the doubt as to who was actually involved in the robbery.
28. I do not accept this submission. If some of the money did in fact go missing this is something that can be addressed by the owner of the money. It is not relevant to the question of who stole the money and whether the accused were involved in the robbery.
6 The police investigation was defective
29. Mr Kolkia criticised the police investigation, especially the failure to conduct an identification parade or to get S, M or J to identify the suspects at the police station.
30. I agree that it does seem unusual for there to be no formal process of identification of suspects. It would seem reasonable to expect that this would have been done soon after their apprehension. However, this does not prevent the court forming the conclusion that the accused were involved in the robbery.
7 None of the elements of the offence of armed robbery have been proven beyond reasonable doubt
31. Mr Kolkia pointed out that the offence of robbery is created by Section 386(1) of the Criminal Code and has four elements:
32. The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:
(a) is armed; or
(b) is in company with at least one other person; or
(c) wounds or uses personal violence.
33. He based this analysis on my decision in a Buka case, The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012. Mr Kolkia submitted that none of these elements had been proven against either of the accused. Furthermore, it had not been proven that either of them aided or assisted the persons who actually committed the robbery in such a way as to make either of them criminally liable under Section 7 of the Criminal Code. The evidence is unclear about what the accused are alleged to have done.
34. These submissions are, with respect, misconceived. It is not necessary in an armed gang robbery case dependent on circumstantial evidence for the prosecution to establish precisely what acts an accused person has done. It is sufficient to establish that each was involved in the robbery in some way.
Final determination
35. I do not consider that any of the defence counsel’s submissions defeat the natural inference arising from the proven facts that the accused were involved in the robbery. My final determination is as follows:
VERDICT
36. Alphonse Asarombo and Timothy Lokora are each found guilty of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a) and (b), namely that each was armed and in company with other persons.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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