N4762

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1086 OF 2011
CR. NO. 1087 OF 2011
CR. NO. 1089 OF 2011
CR. NO. 1090 OF 2011

STATE

V

BERNARD HEZAKIE, BECKS HEZAKIE, FELIX SENGI & OFI BEN (NO.2)
Accused

Kainantu: Ipang AJ
2012: 10, 13, 16, 17, 18, 20, 25 & 26 July

CRIMINAL LAW–Attempted highway armed robbery – group or gang robbery – Accused alleged to have armed with Factory made Pump Action Shotgun - bush knives, stones and beer bottles –s. 387 (1) (a) (2) (a) & (b) Criminal Code Act, Chapter 262– accused alleged to have thrown beer bottle smashing Coaster Bus glass and hit a passenger causing injury to his head - s. 319 Grevious Bodily Harm –Criminal Code Act – Accused alleged to have used bush knives to cut the side of the bus causing substantial damage – s. 444 (1) (2) Criminal Code Act.

CRIMINAL LAW–Evidence – Inconsistent statements – raise issue of credibility – Defense witnesses unreliable – not worthy to be trusted – lack credibility.

CRIMINAL LAW– Evidence- Identification of Accused – more towards recognition then identification of strangers – Accused persons familiar faces – John Beng v State [1977] PNGLR 115

Cases Cited

State –v- Atau Gore (No. 2) [2004] PGNC 124; N2644 (23 August, 2004)
State –v- Thomas Gitau Bawai [2001] N2074 
John Beng –v- State [1977] PNGLR 115

Counsel

Mr. A. Bray, for the State
Mr. M. Mumure, for the Accused Persons

DECISION ON VERDICT

26 July, 2012

1. IPANG, AJ: On the 10th July, the four (4) accused persons pleaded not guilty to one (1) count of Attempted Armed Robbery pursuant to section 387 (1) (a) (b) 2 (a) (b) of the Criminal Code Act, one (1) court of causing Grevious Bodily Harm pursuant to section 319 of the Criminal Code Act and for causing unlawful damage pursuant to section 444 of the Criminal Code Act. A trial was conducted on the even date and was concluded on the 20th July. Final submissions were made on the 25th July and today 26th July is the decision on their verdict.

Brief Facts

2. 	The brief facts of this case are as follows: On the 16th July, 2011 the four accused were alleged to be together with other persons near the Kainantu Mobil Service Station at around 10.30pm. State alleged they were consuming alcohol when a 25 Seater Coaster Bus bearing Registration No. PO 377H driven by one Christopher Wakati from Lae on the way to Mt. Hagen pulled up.

3. Just before approaching Kainantu Town, at a bridge the driver suspected a flat tyre. He was about to stop at the bridge when policemen who were there directed him to drive straight through Kainantu Mobil Service Station and fix his tyre there. So the driver drove to Mobil Service Station and stopped there. The driver sent the crew out to check and change the flat tyre. The crew went out of the bus. The State alleged that the four accused persons and others approached the bus. They were all armed. State alleged that the accused Becks Hezakie had a firearm and Bernard Hezakie had a bush knife. Accused persons Ofi Ben and Felix Sengi were armed with stones and bottles of beer.

4.	As the accused persons approached the bus, they separated and surrounded the bus. State alleged Becks Hezakie and Bernard Hezakie approached the driver. Becks aimed the firearm at the driver. Driver called on the crew to get inside the bus and then he drove straight at Becks who was armed with a firearm. Other accused persons Bernard Hezakie, Felix Sengi, Ofi Ben and others then threw stones, bottles, and bush knife at the bus and also cut the side of the bus with bush knives.

5.	A passenger Philemon Tony was hit by a bottle of beer thrown at the bus. He received cut to his head. The driver drove out of the scene all the way to Raipinga and changed the flat tyre. He later drove back to Kainantu Police Station and reported the matter. As the bus took off at the scene of alleged Attempted Arm Robbery, the police fired warning shots. Accused persons and others ran away. Police chased them and apprehended Bernard Hezakie in the early hours of 17th July, 2011. Later the other accused persons were apprehended. The owner of the Coaster Bus obtained a quote of damage caused to be around K9, 335. 05.

State's Case

6.	At the beginning of its case, State through Counsel Mr. A. Bray tendered the following documentary evidence with consent from Defence Counsel. The following were the documents tendered:

(a)	Becks Hezakie's Record of Interview dated 26th July, 2011. Pidgin original version as Exhibit 'A1' and the English translated version as Exhibit 'A2'.

(b)	Bernard Hezakie's Record of Interview dated 26th July, 2011. Pidgin original version as Exhibit 'B1' and the English translated version as Exhibit 'B2'.

(c)	Felix Sengi's Record of Interview dated 28th July, 2011. Pidgin original version as Exhibit 'C1' and the English translated version as Exhibit 'C2'.

(d)	Ofi Ben's Record of Interview dated 28th July, 2011. Pidgin original version as Exhibit 'D1' and the English translated version as Exhibit 'D2'.

(e)	Statement of David Tasman in English dated 21st July, 2011 as Exhibit 'E1'. 

(f)	Quote of damage done to the vehicle valued at K9, 335. 05 as Exhibit 'E2'.

(g)	Four photographs taken on damage caused to the bus;

(1)	 Photo P1 Exhibit 'F'

(2)	Photo P2 Exhibit 'G'

(3)	Photo P3 Exhibit 'H'

(4)	Photo P4 Exhibit 'I'

7.	State called six (6) witnesses. They are Jennifer Peter, Maria Sambu, Daniel Numdi, Christopher Wakati, John Joseph and Japhet Rupia. Jenifer Peter and Maria Sambu were the passengers on the Coaster Bus, Christopher Wakati is the driver of the Coaster Bus. Daniel Numdi, John Joseph and Japhet Rupia are the Police Officers based at Kainantu Police Station.

8.	In summary, Jennifer Peter and Maria gave their accounts of how they were travelling from Lae on their way to Mt. Hagen after the AOG Women's Fellowship held in Lae. These two (2) witnesses travelled on that Coaster Bus Registration No. PO377H on the 16th of July, 2011 from Lae on their way to Mt. Hagen. They told the Court of the bus experiencing a flat tyre and the driver driving to Kainantu Mobil Service Station. At the Mobil Service Station, the crew went out to check the flat tyre when armed group of men approached the bus. These two (2) witnesses said two (2) tall men approached the driver side. One had a gun and the other had a bush knife. That was the descriptions they (witnesses) gave but weren't able to tell or identify whether these two (2) tall men were two (2) of the accused before this court.

9.	They also told the court of four (4) other men who went towards the crew side. Driver then called on the crew and the crew got into the bus, Jennifer Peter shouted "take off" so the driver took off. They said the other men who were armed with stones, bottles of beer and bush knives started throwing stones, beer bottles, and a bush knife on to the bus, breaking the window and also they cut the side of the bus with bush knife. A bush knife broke the glass and landed inside the bus. A full bottle of beer broke the glass and hit a passenger Philemon Tony on his head causing him injury and bleeding. At the Kainantu Police Station, these two (2) wit nesses Jennifer Peter and Maria Sambu were able to see blood coming from Philemon Tony's head. A bush knife which was discovered inside the bus was tendered to court and marked as Exhibit 'J'.

10.	 At the Kainantu Mobil Service Station, these two (2) witnesses said there were lights at the Service Station and bus lights were on and they were able to see the armed men approaching them. Witness Maria Sambu was taken to task over her statement given to the Investigator in which she did not mention gun and bush knife by the Defence Counsel. Defence Counsel submitted that her evidence regarding gun and the bush knife is therefore a new invention or recent creation.

11. Coaster Bus Driver Christopher Wakati also gave similar accounts of experiencing a flat tyre and was trying to change the flat tyre. He stopped the bus at Mobil Service Station and sent his crew to check the punctured tyre. When the crew was outside the bus, a group of men approached the bus. Two (2) tall men approached him. One had a gun and the other had a bush knife. He said the one with the gun, pointed the gun at him and told him not to move the bus. However, fearing for the lives and properties of his passengers and his daily takings, the driver drove straight to the gunman. At the same time, stones, beer bottles and a bush knife were thrown on the bus breaking the glasses. One full bottle of beer hit a passenger Philemon Tony on his head causing bleeding. A bush knife broke through the glass and landed inside the bus. Bush knives were also used to cut the side of the bus. The driver could not identify if accused persons were the ones he saw except to say there were two tall men and two short men.

12. 	Daniel Numdi gave evidence of the call the police received when they were at Yonki informing them of armed criminals in Kainantu. So they travelled up to Kainantu. The four (4) of them were dropped off at Mixed Compound. They were S/C Ben Babat, F/C Simon, Auxiliary Policeman Kenneth Kau and himself. At the Mixed Compound they all walked towards Tilagu Kona. At Tilagu Kona they stood there and watched convoy of buses passing through. They also saw some young men causing damage to the buses.

13.	 Numdi said they divided themselves into two groups. Senior Constable Ben Babat and himself went to the Lae Bus stop whilst F/C Simon Boi and Auxiliary Policeman Kenneth Kau went towards K'Mart. At the Lae Bus Stop, Numdi said S/C Babat and himself saw a 25 Seater Coaster Bus drive slowly up and wanted to park under the street lights of the Mobil Service Station. He said young men went and wanted to hold up the bus.

14.	 They were 5 to 6 meters away from the Mobil Service Station and he said they recognized who wanted to hold up the bus. Numdi said two tall persons approached the driver side. He said he can tell that they were Becks Hezakie and Bernard Hezakie. He said both Becks and Bernard were not masked or did not cover their faces and they were under street lights. Becks held a shot gun, a pump action and went straight to the driver and pointed the gun at the driver. The driver put the vehicle in to motion.

15.	 Numdi said S/C Babat and him fired warning shots. Becks and his group ran towards the Tiofi Gate and opened fire back to S/C Babat and him. But they (S/C Babat and him) followed them. He said Bernard was trying to jump over the gate when he was caught while Becks and others escaped. Bernard was then searched and a Tramontina knife was found on him. The bush knife has a long blade and a black handle. The bush knife was tendered to Court with consent and was marked as Exhibit 'L'. Numdi said he was the one who searched Bernard and confisticated the bush knife from him. He said Bernard was drunk and resisted getting on to the Police vehicle.

16.	 John Joseph is the Investigating Officer. He gave evidence of how he travelled up to Mendi and Mt. Hagen and interviewed witnesses Jennifer Peter, Maria Sambu and Philemon Tony in Mendi. In Mt. Hagen he interviewed Bus Driver Christopher Wakati, Crew Barnabas Wyn and the bus owner David Tassman. In Kainantu he interviewed Daniel Numdi, S/C Ben Babat, Simon Igaso, Auxiliary Constable Kenneth Kau and Constable David Wate. After considering and convinced himself that there are sufficient and credible evidence, he went on and arrested the accused persons. He said there were seven of them. Three escaped and four are now before the Court.

17.	 The witness John Joseph said he was not actually involved in the apprehension of the accused persons but arrived on the scene after they were apprehended. He strongly denied his involvement in the actual apprehension of the accused persons when pressed by the Defence Counsel Mr. Mumure.

18.	 The final State witness is Constable Japhet Rupia. He was the driver of the Police vehicle who drove policemen from Kainantu to Yonki and Yonki to Kainantu and dropped four policemen at Mixed Compound. He then drove up to the main Police Barracks when he heard gun shots. At the Police Barracks he picked up F/C Freddy Kondoa and he drove back. In front of Bingtangor Supermarket, police got Bernard Hezakie and were there when he arrived. Rupia said police tried putting Bernard on the Police vehicle but he was drunk and resisted. He smelt beer. Police then man handled him and put him on the vehicle and took him to Kainantu Police Station and he was locked up.

19. 	Police then re-grouped and mounted a search for Becks Hezakie and others. Rupia said they combed Kainantu Town searching for Becks and his group. At the Tiofi Gate, Rupia said a Security Guard told them that Becks and 4 to 5 others escorted him (Becks) to his house. So Rupia said they went straight to Becks' house and apprehended him and the five (5) boys.

20. 	Becks was asleep in the house. One of the accused Felix Sengi came out of the house when he was apprehended and four others were inside the house when they were apprehended. Rupia said after apprehending the accused persons, police told them to get on the vehicle but they were drunk and resisted. Police then man handled them and got them on the vehicle. Police got them to Kainantu Police Station and later brought them to Yonki Police Station and locked them up.

Defence Case 

21. The first Defense witness is Becks Hazakie. He is married with 2 wives and has 3 children. He operates a private security firm in Kainantu. He also manages a store RK Trading which is owned by him and an Asian.

22. On the 16th of July at 8.00pm, he drove down from Goroka and arrived in Kainantu. He left his vehicle at Tiofi Yard and went into RK Trading. Inside RK Trading he cooked and ate. He said he was still inside RK Trading when he heard a gunshot. He came outside. This evidence is inconsistent with the answers he gave during the Record of interview. Refer to Exhibit 'A' and 'A2'. In Question 6 he was asked; Can you tell me in your own words what you did on Saturday night on the 16th July, 2011 at about 10.30pm? Answer: "I came from Goroka and the bus left me at Blue Corner. I walked and stood at the gate, front of Bingtangor Supermarket. When looking down, middle of Farmset and Mobil Service Station, there was a bus parked at the side. Not long I heard a big noise. I went into the Bingtangor Supermarket yard. I left the gate and walked further into the yard. Not long I heard gunshot."

23. While inside RK Trading he said he heard gunshot so he came outside. He said he did not see anything except a group of people at the gate. He heard Bernard Hezakie was taken to the Police Station. In the Record of Interview (ROI) still on Answer to Q. 6 he said, "I open the gate and walked out. When I came out, I met Bernard. While we were there Police arrived. All the people standing from the bus stop were running from all direction while two of us were standing. Policemen began to assault us and both of us went back in the yard. Both of us still in the yard, I asked Bernard to go and check the Securities and I went to the RK store. While I was still there, the boys came and told me that Police assaulted Bernard."

24. Becks said he heard Bernard was taken to the Police Station so he went to the store got his wife and went home. He said he arrived at his house at around 10.00pm. He went straight to bed and slept. At 2.00am policemen went to his house, assaulted him, and told him to wear his clothes on. He said policemen told him to go outside the house and told him to lie down on the grass. He said they chopped him with bush knife and beat him with butt of the gun. He said policemen chopped him on his left ankle with the bush knife.

25. There are lots of significant inconsistencies on the version of evidence given by Becks Hezakie during the Record of Interview on the 26th July, 2011 marked as Exhibit 'A1 & A2' respectfully. There is also uncertainty with Becks movement. At 10.30pm on the 16th July, warning gunshots were fired at the Mobil Service Station. Becks heard the gunshots. Then, he said he went to his house it was 10.00pm. If that is true, then he should have heard the gunshots at his house and not when he was at Tiofi Gate.

26. Becks evidence given at the Witness Box, his timings and movements around Tiofi Gate, on the time of 16th July, 2011, he would have coincidently meet Bernard but he denied meeting up with Bernard at the gate. He said he only heard Bernard was taken up to the Police Station. Yet Bernard said he was at Tiofi Gate at 10.00pm and Becks said at 10.00pm he was at his house. If at 10.00pm Becks was at his house, how could he heard of Bernard been taken to the Police Station.

27. Bernard Hezakie is the Manager of Hauslain Mama Security Services (HMSS) and also a Supervisor at Bingtangor Wholesale. He said on the 16th July, 2011 at around 10.00pm he was at Tiofi Yard at the back behind Bingtangor. He said he was with Felix Sengi waiting for others to come. He said he did not hear anything. People ran towards the gate so he went to the gate. He said John Joseph and Daniel Numdi who were at the gate assaulted him. Daniel Numdi punched him on his face and John Joseph assaulted him with a gun. He told the court on how he was further assaulted with a bush knife. He was later put into the police vehicle and taken to Police Station.

28. Bernard was taken to task over his statement or answers given in the Record of Interview Exhibit B1 and B2 dated 26th July, 2011. State counsel referred to Question 23: You said you came out of Shell Service Station and you saw 3 guys at Farmset? Answer: Yes. In court you today when giving evidence, you told the court you did not see anything. Accused answered: "Yes:"

29. State counsel referred to Question 24 in Record of Interview (ROI), you walked to the Mobile Service Station and you said you saw the broken glass? You answered: "Yes". Now in court you said you did not say that. In Question 27: You heard police warning gunshots? You answered: "Yes". Now in court, you said you were at Tiofi Gate, the noise of the Freezer made it impossible for you to hear the gunshots. In court today you said you were not drunk. However, in Becks Record of Interview (supra) answer to Question 6, he (Becks) said, "when he came out Security Guards told him that, they (police) took Bernard to the Police Station, 'He (Bernard) was drunk so he was thinking of getting some money purposely to bail him out'. 

30. Felix Sengi told the court he was with Bernard at Tiofi Gate. He said while at Tiofi Gate, Becks drove in from Goroka left the vehicle and went into RK Trading. He came out and saw Becks there with Security Guards. Becks' wife came out of RK Trading and you escorted Becks and his wife to Becks' house. At Becks' house you left them and came back and at K'Mart, police met you and assaulted you. You then took off to Becks' house and stayed there till police went and apprehended all of you including Becks.

31. Felix had his share of giving inconsistent statement during the Record of Interview Exhibit C1 & C2 just like Becks and Bernard. In the Record of Interview (ROI) you said you were at Becks' house cooking when the incident happened at Mobil Service Station. Now you denied this. He said he was forced to say. What were you forced to say? I can't say. 

32. Felix said standing at Lae Bus Stop and looking through Mobil Service Station which is 5 – 6 metres apart and which is like a distance from inside court room to the court house fence, you can see well. This aspect of evidence confirms the evidence of Constable Daniel Numdi. Numdi said there were lights at the Mobil Service Station and standing from Lae Bus Stop he could see Becks Hezakie holding a Pump Action shotgun and Bernard Hezakie holding a bush knife. This is not a case of identifying a stranger. In John Beng v State [1977] PNGLR 115 at p. 127 the court said, "Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made." On page 123, the court said, "All these matters go to the quality of identification evidence. When the quality is good, the jury can safely be left to assess the value of the evidence even though there is no other evidence to support."

33. Numdi said there were street lights and lights at the Mobil Service Station, Becks and Bernard were not masked or did not cover their faces and that he could recognize them very well as he was in Kainantu for long time. He said Becks and Bernard are popular faces in Kainantu Town so as Felix Sengi and Ofi Ben. Ofi and Felix travel around with Becks in his vehicle and he recognized their faces. Felix confirmed that he travels in Becks' vehicle.

34. I am satisfied Numdi's identification of the accused was of quality and was not one of a fleeting glance. His evidence of identification stood out, not been contested or taken issue with by the Defense. Credibility of Defense witnesses are questionable. Ofi Ben elected to remain silent and not to give evidence. Ofi Ben's alibi witness Sandra Hezakie is not a good alibi witness as at the material time 10.30pm on the 16 July, 2011 she was fast asleep and could not tell whether Ofi Ben was still at Becks' house or not. Secondly, Sandra is related to Becks and Bernard and her credibility as a reliable witness is tainted and not reliable.

The Applicable Law

35. The s. 387 of the Criminal Code Act is worded in the following terms and I quote:

"387. Attempted robbery accompanied by wounding, or in company.

(1)	A person who assaults a person with intent to steal anything, and, at, immediately before or immediately after, the time of assault, uses or threatens to use actual violence to any person or property in order

(a)	To obtain the thing intended to be stolen; or

(b)	To prevent or overcome resistance to its being stolen,

Is guilty of crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2)	If the offender –

(a)	Is armed with a dangerous or offensive weapon or instrument; or

(b)	Is in company with one or more other persons,

He is liable to imprisonment for a term not exceeding 14 years"

36. I draw the attention of both counsel to s. 4 of the Criminal Code Act, the section 4 states:

"4. Attempts to commit offences

(1)	When a person, intending to commit an offence –

(a)	begins to put his intention into execution by means adapted to its fulfillment; and

(b)	manifests his intention by some overt act, but does not fulfils his intention to such an extent as to commit the offence, 

he is said to attempt to commit the offence."

37. The notation under s. 387 on page 138 of the Criminal Law and Practice of Papua New Guinea by Don Chalmers, David Weisbrot, Salamo Injia and Warwick Andrew, Lawbook Co. 2009 stated that, 'This section does not merely require that the intention be manifest by some overt act; it requires the commencement of the execution of the intention itself.' The notation further expounded that the code does not require that the prosecution go further and show that the acts relied upon should be referable, independently of any intention confessed or inferred, unequivocally to an intention to commit the particular crime. The pre-independence case of R v Joseph Kure [1955-1966] PNGLR 161 was referred to.

38. From reading of sections 387 (1) and 4 of the Criminal Code Act, and the notations on page 138 of Criminal Law and Practice of Papua New Guinea (supra) and the evidence given so far of young men whose identities have been revealed, and armed with gun, bush knives, beer bottles confronting the bus, threatening the driver, stone the bus, cut the side of the bus and smash the glass of the bus are in my view sufficient evidence.

39. With respect to the submission by the learned Defence Counsel that the State has not adduced evidence to prove what was intended to be stolen is of course not a requirement for the State to do so. Defence Counsel's submission on this aspect is misleading. It is a clear position of the law that property identification is not required in an attempted robberies charge. If what Mr. Mumure is submitting is the correct requirement of law, then it will have serious ramifications on offences of attempted robberies where no actual attempts were made on getting specific properties like the present case.

40. In State v Atau Gore (No. 2) [2004] PGNC 124; N2644 (23 August, 2004) Manuhu AJ (as he then was) re-enforced the correct requirement of the offence of Attempted Robbery under s. 387 of the Criminal Code Act where His Honour stated that, "The minimum requirement under s. 387 is the intent "to steal anything" as opposed to intent to steal a thing." This position was previously expressed in 2000 in the case of State v Thomas Gitai Bawai (2000) N2074 that it is not necessary to specify any property, especially if the act of stealing is absent or had not materialized.

41. For these reasons, I am satisfied beyond reasonable doubt and I find the accused persons guilty on first count of attempted armed robbery pursuant to s. 387 (1) (a) of the Criminal Code Act.

42. In regards to the second count of causing Grevious Bodily Harm pursuant to s. 319 of the Criminal Code Act. Mr. Mumure submitted for the accused persons that there is no evidence of grevious bodily harm, no medical evidence and no victim in this case. He said the words of the witnesses alone on injury sustained by the passenger Philemon Tony are insufficient. Jennifer Peter said at Kainantu Police Station, Philemon Tony showed them blood on his head. She said a full bottle of beer broke the glass and landed on his head. Maria Sambu said Philemon Tony had injury to the left side of his head. Driver said he had a big cut on the left side of his head. A full bottle of beer with its' lid on was smashed on his head. The evidence by the three (3) State witnesses demonstrated sufficient evidence on injury sustained by the passenger Philemon Tony, but in my view is not sufficient to find conclusive evidence of grevious bodily harm under s. 319 of the Criminal Code Act. I find them guilty on a lesser count of unlawfully wounding.

43. Regarding the third count on unlawfully damage under s. 444 (1) & (2) of the Criminal Code Act, I find all the accused persons guilty as charged as they were correctly identified and recognized to be involved in the commission of this offence at the Mobil Service Station.

_______________________________________________

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