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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 697 of 2009
THE STATE
V
PETER DOMINIC, CHRIS BORA, ANDREW JOHN, JOE TEVIRI & PAUL LUKE
(No.1)
Popondetta: Toliken, AJ.
2013: 09th, 10th, 11th, 12th, 17th March
CRIMINAL LAW – Particular offence – Armed robbery – Trial -Victim held up on highway by six armed men – Substantial amount of cash and other properties stolen – Five accused persons - State invokes section 7 of criminal Code Act - Criminal Code Act Ch.262. ss 7, 386.
CRIMINAL LAW – Evidence – Identification – Eyewitness identification – Victim identifies two accused in Court – Had not seen them prior to or after the robbery – First time to see them again in Court after some 4 ½ years – Eye witness identification rejected as unreliable – Money bag stolen in the robbery and in possession of one the accused positively and conclusively identified as belonging to the victim.
CRIMINAL LAW – Evidence – Circumstantial evidence – Two of accused caught while fleeing from the crime scene with four others within the vicinity of the crime – Victim’s money bag and some other items stolen in the robbery found in their possession – Accused observed to be sweating heavily and out of breath – Strangers in the area - Running into the mountains not following any particular well-used track or road to village where they said they had been staying – Admission of participation in the robbery – Offer to share proceeds with captors - All accused persons caught and apprehended while sleeping in a single hut – Substantial amount of money found under mattresses two of accused were sleeping – None claim ownership of money – Accused claim to witnesses they were gold buyers – No gold buying equipment found in their possession – Only one rational and reasonable inference drawn in the circumstances – All accused were involved and participated in the robbery – Guilty verdict returned against each accused.
Cases Cited
The State v John Beng [1976] PNGLR 481
John Beng v. The State [1977] PNGLR 115
Tom Morris –v- The State [1981] PNGLR 493
Paulus Pawa –v- The State [1981] PNGLR 498
Yandasingi v The State [1995] PNGLR 268
Garitau Bonu & Rossana Bonu –v- The State (1997) SC 528
Jimmy Ono v The State (2002) SC698
The State v Marety Ame Gaidi (2002) N2256
Piakali v The State (2004) SC771
Taiya Balua v The State (2006) SC878
Piakali v The State (2004) SC771
Patrick Towingo and two others v The State (2008) SC983
Denden Tom& Ors –v- The State (2008) SC 967
The State v Avana Latuve & 2 Ors CR 626 OF 2009 (unpublished & unreported Judgment dated 15th April 2013)
Counsel:
J.W. Tamate, for the State
L. Mamu, for the prisoner
JUDGMENT ON VERDICT
17th April 2013
“... on the 20th of October 2008, at Hoivi Village, Kokoda, Oro Province they stole from one Michael Zhing with actual violence K35700.00 in cash, twenty (20) CHM cassettes valued K340.00, spanners valued at K250.00, cheques, two (20) Pall Mall cigarette packets, a torch, a windscreen valued at K400.00, and a spare tyre valued K400.00 all properties belonging to Michael Zhing and at that time they were armed with two shotguns, bush knives and iron bar and timber and in company with each other”
Thereby contravening section 386 (1) (2) (a) (b) (c) of the Criminal Code Act Ch. 262 (the Code).
THE ALLEGATIONS
2. The State alleged that on 20th October 2008, one Michael Zhing, the owner of a business in Kokoda, Huaming Investments Ltd was
travelling in his truck down the Kokoda Highway to do his banking in Popondetta.
3. He left Kokoda at 7.00 a.m. After about 30 minutes drive out of kokoda he was held up by six armed men. The suspects were masked and armed with a home-made gun, a factory made gun, an iron pipe, a piece of timber and a bush knife.
4. They broke the left windscreen of the vehicle, opened the driver’s door and started to assault the victim. The victims received wounds to his head and shoulders and was hit all over his body. He was dragged out of the vehicle, assaulted and left lying on a roadside drain.
5. During the holdup the following items were stolen from the victim –
6. These were the properties of the company and the victim.
7. After robbing the victim and injuring him the accused persons escaped on foot into the jungle towards Omsetta Village, Kokoda.
8. Nearby villagers discovered the victim on the road and some village boys decided pursue the suspects following their track marks into the jungle. He boys saw six men escaping into the mountains. They continue to give chase and manage to apprehend two of the suspects. They searched them and found a bag in their possession containing cassettes and cigarettes.
9. The State alleged that the two who apprehended were Chris Bora and Peter Dominic. They admitted to the villagers that they were part of robbery and that the other four had escaped with the money. These two were later taken to Omsetta village by the village boys.
10. The matter was reported to the police. The police went up in the night and picked the village boy and they went to Omsetta Village where all five accused were found in a house. The police found K8200 in cash and the victim’s money bag in the in their possession. They apprehended the accused persons and brought them to Popondetta Police Station.
11. The State alleged that the accused are not from Omsetta Village. They were staying with a Willie Kaura.
PLEA
13. The accuseds all pleaded not guilty to the charge raising the defence of general denial.
THE OFFENCE
14. The offence of robbery is defined by Section 386 of the Code as follows:
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.
15. The accused persons in this matter were indicted for armed robbery.
THE ELEMENTS
16. The elements of armed robbery are:
THE EVIDENCE
17. The State called the following witnesses –
18. For the Defence the Peter Dominic and Joe Teviri made unsworn statements from the dock. No other witnesses were called.
UNDISPUTED FACTS
19. From the evidence I find the following undisputed facts.
20. On 20th October 2008, the victim left Kokoda in truck at 7.00am for Popondetta Town. After about thirty minutes drive down road as he was climbing Mt. Hoivi he was held up by six men – three men approaching him from each side of the truck. One pointed gun at him and another came from the side and broke the glass screen and rear vision mirror. Another one jumped onto vehicle hit the victim with iron pipe. Another man who was standing who on the left and armed with a bush knife demanded money from the victim. The victim begged not to be assaulted and said that he had money and handed bag containing money over. One man stood in front of vehicle armed with factory made gun. He had had a woollen cap which only partly covered his face to his eye-brow. The other side of his face was hidden by the gun he was aiming at the victim.
21. One of the robbers who was standing on the right broke the right windscreen. He opened the door and dragged the victim out. The victim fell into a drain and as he was lying in the drain the man assaulted him and demanded for more money. The victim gave him K1400.00 which he had in his pockets. The man was not masked and was armed with home-made gun.
22. The robbers took form the victim the car keys, spare tyre, spanners, K1400.00 cash, a sling bag containing K34000.00 in cash, 20 audio music cassettes and two packs (gross) of cigarettes.
23. After robbing the victim the robbers escaped on foot into the jungle following no existing track in particular.
24. The victim was discovered by a villager a little while later. Nearby Sisiretta Villagers were alerted. The village boys including Sydney Warafa, Roman Sema and Kevin Kaeka chased after the robbers following the fresh tracks they made on the escape into the mountains.
25. The pursuers caught sight of six men running into the mountains. They caught two, the accuseds Peter Dominic and Chris Bora. They observed that the two men were sweating heavily and out of breath. They found a brown sling back on Chris Bora. The bag contained audio music cassettes ( Pune Kapa & Junior Insects) and cigarette packs.
26. Peter Dominic and Chris Bora told village boys that they were gold buyers.
27. It was not disputed that Sydney Warafa and the other village boys threatened Peter Dominic and Chris Bora. It is also not disputed that Peter Dominic promised them a share of the loot which he said had been carried away by others.
28. After taking Peter Dominic and Chris Bora around the bush for some time – including having a meal of cooked bananas at from Warafa’s garden – they took them and left them at William Kaura’s house at Omsetta Villges where they said they were staying.
29. At Omsetta Village it was not disputed that one Andrew Kaura told Sydney Warafa that they (Peter Dominic and Chris Bora) will sort him out and give him his share later after Sydney Warafa told him that they had brought the two men back after they found them lost in the bush. This offer was an unsolicited.
30. The matter was reported to the police at Kokoda. The victim later proceeded to Popondetta Town with Station Commander Bill Sare. He was taken to the Popondetta Hospital for a check up. He later laid a formal complaint at the Police Station.
31. That night a Police contingent travelled up to Sisiretta Village. They picked up Sydney Warafa and proceeded to Omsetta Village. There they found all five accused’s asleep in William Kaura’s haus win and apprehend and apprehended them. They found and took a brown sling bag from Chris Bora. Constable Anthony Sevese found a large amount of cash amounting to K8200 from under the mattresses that Andrew John and Chris Bora were sleeping on.
32. Finally it is not disputed that the accused persons were not from the area even though Joe Teviri claims to be married to Andrew and William Kaura’s neice.
33. All five accused were conveyed to Popondetta Police Station. The cash of K8200 returned to the victim who signed an Indemnity From upon receipt of money.
FACTS IN DISPUTE
34. The principal facts in issue are:
35. Let me now consider the issues.
ISSUE NO. 1: WHETHER THE ACCUSED AND THE ALLEGED MONEY BAG WERE POSITIVELY IDENTIFIED
36. As I have alluded to above there are two crucial aspects of evidence of identification by state witness that seek to prove that accused persons were involved in the robbery. These are –
Salient Points on Evidence of Identification at the Scene of Crime
(i) State
37. The victim testified that when he was held up, one of the gun men stood in front of the truck aiming a factory made gun at him. He was wearing a woollen cap which partly covered his face down to his eyebrows. Part of his face was covered by the gun which the gunman was aiming at him. He said in cross-examination that the man was standing at a distance of between 3-4 meters. He pointed the accused Peter Dominic out from dock as that man.
38. After he had given the money bag to the man who had attacked him with an iron pipe the victim was dragged out of the truck by one of the robbers. He fell into the drain where the man set upon him, assaulting him and telling him to hand over more money. He took out K1400 (K1000 from one pocket and k400 from the other pocket) and gave it to him. The man was not masked but was armed with a home- made gun. The victim pointed out the accused Andrew John from the dock as that man.
39. The victim said in cross-examination that he had not seen any of these men before the robbery and never saw them again until the
trial. He admitted in cross-examination that he was shocked and terrified. He said the whole episode lasted some 15 – 20 minutes.
(ii) Defence
40. Peter Dominic gave an unsworn statement from the dock. He said that he had gone up to Kokoda on 18th October to meet one Taylor.
They had planned to go and buy gold at Ioma and Kanga and then returned to Kokoda. When Taylor did not arrive he took a bus to Ebei
where he bought a 5g gold nugget. He spent the night there with a friend named Harry Esesega.
41. He stayed with Harry until Monday morning when he caught a PMV to Kokoda at 7.00 a.m. to check for Taylor. He did not find Taylor but then remembered Harry telling him that during the disaster, gold bars were floating around the Kokoda area so he decided to take the back road from Kokoda to Giara Community School.
42. There he met Chris Bora who had come up looking for gold bars too. Chris Bora told him that villagers told him that some villagers had told him that they have to perform some customary ritual for the villagers before they could buy gold from them.
43. They decided that it was already late to catch a PMV so they walked to Sengi Village following a well-used garden track that ran through the back of Gorai Community School.
44. As they were walking up the mountain they saw people running down the hill side. These people came to them and threatened them asking if they were the robbers. They took his backpack and Chris Bora’s waist bag and checked them. They then took them down to river where they cooked and ate some bananas. These men took everything that was in Chris Bora’s bag i.e. cigarettes and cassettes.
45. They continued to threaten them while mentioning a previous incident where a police was shot and what happened after that. Fearing that they might do something bad to them Peter Dominic told them that he will give them his share, meaning his own pocket money which he had hidden in his pants. As it was already getting dark the villagers decided to bring them to Community Based Constable Andrew’s place at Omsetta Village.
46. The accused Joe Teviri in his statement from the dock said that he, Andrew John and Paul Luke were at Omsetta Village the whole day on that 20th day of October 2008. They had been lodging with his in-law Andrew Kaura.
47. Sometimes late in the afternoon Andrew told him that some visitors had arrived at his brother William’s house. He told him to stay while he goes over and check. He returned and got a dish of food from his wife and brought it to William’s house. When he returned he told Joe Teviri, Andrew John and Paul Luke to follow him to William’s haus win. There they met two men who were sitting on the floor and eating. One introduced himself as Peter Dominic and the other as Chris Bora.
48. Andrew Kaura then told Joe Teviri, Andrew John and Paul Luke to spend the night with these two. They retrieved their bags from Andrew Kaura’s house and stayed up with Peter Dominic and Chris Bora telling stories until they went to sleep. They were, however, awaken rudely sometimes later by the police who had come in the early hours of the morning and apprehended them.
49. Those basically are the salient points in the evidence on this issue.
The Law on Identification Evidence
50. What is the law on identification? Here I shall adopt what I said about the principles of law on identification in the matter
of The State v Avana Latuve & 2 Ors CR 626 OF 2009 (unpublished & unreported Judgment dated 15th April 2013) which I handed down a couple of days ago.
“The legal principle regarding identification has been well settled in this jurisdiction since the much celebrated case of John Beng v. The State [1977]PNGLR 115. There the Supreme Court held that –
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 stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.
Basically I am to warn myself of the dangers that are inherent in identification evidence from eye witnesses, that there is a special need for caution before an accused can be convicted because it has been known that a convincing a witness and even a number of witnesses may be mistaken.
I need to pay special attention to the prevailing circumstances under which such identification is made and that while identification by recognition may be reliable I need to be cautious because mistakes have and may be made in trying to identify close relatives and friends.
There is need to assess the quality of the evidence - where quality is good the identification may be reliable but if it is poor the identification will be bad and the accused is entitled to be acquitted. The quality of the evidence may be poor if there was only a fleeting glance but even if there was a longer observation it will be still poor if it was made under poor conditions. (Taiya Balua v The State (2006) SC878; Jimmy Ono v The State (2002) SC698; Piakali v The State (2004) SC771, and Patrick Towingo and two others v The State (2008) SC983.See The State v Marety Ame Gaidi (2002) N2256 where Kandakasi J.gives a good summary of the principle)
The matters that need to be taken into account in assessing the accuracy of identification may include what opportunities the witness had in identifying the accused as the person who committed the crime, the position of the parties, lighting, the opportunity to form such judgment and the circumstances under which such judgment was formed. (The State v John Beng [1976] PNGLR 481 upheld on appeal in John Beng v The State (supra))
In Yandasingi v The State [1995] PNGLR 268 (Amet CJ, Kapi DCJ, Los J), the Supreme Court said the quality of identification depended on (a) whether the witness knew the accused before the event in question (b) the lighting conditions at the time (c) the distance between the witness and the accused at the time of the event and (d) whether there was any object which may have obstructed the view of the witness.
In Taiya Balua v The State (2006) SC878 (Los, Manuhu, Gabi JJ.) the court said that:
11. The law on identification is settled. In short, correctness of identification is established by "closely examining the circumstances in which the identification by each witness came to be made:" John Beng v The State [1977]PNGLR 115. See also the Supreme Court case of Luingi Yandasingi v The State [1995] PNGLR 268(Amet CJ, Kapi DCJ and LosJ).
12. After the correctness of identification is established, "the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken": John Beng v The State (supra).
The above cases and many others resonate the duty on a trial court to warn itself on the dangers that are inherent in identifying accused persons either through "identification evidence" (the evidence of an eyewitness who identifies a accused as the offender in circumstances where the eyewitness first saw the defendant at or near the crime scene) or through "recognition evidence" (the evidence of a eyewitness who recognises a defendant as the offender in circumstances where the defendant was previously known to the eyewitness or had previously been seen by the eyewitness other than at or near the crime scene)."
Deliberations
51. So when applying the above principles to the State's evidence in this matter, can it be said that the identification evidence
by the victim is reliable?
52. It is to be noted that the witness had not seen any of the persons he now identifies in court before the robbery nor did he see him again until the trial. Can he still remember what those people looked like after all this time?
53. Mr. Tamate says that he can because the ordeal he went through was one that he could not easily forget. Further he had ample opportunity to remember them because the incident took some 15-20 minutes.
54. Mr. Mamu on the other hand submitted that he could not have done so because he was shocked and terrified by the whole ordeal and, in case it is not reasonable for a robbery to take that long. He says normal or average robberies are completed within a few minutes because of the urgency of the matter and that robbers would normally want to get out in the quickest possible time.
55. Now the robbery took place around 7.00 a.m. so there is no question that there was sufficient light. The victim would therefore have clearly seen everything that was happening to him.
56. It is true that a traumatic event may never be completely forgotten and images of the event or people involved may keep recurring to the subject of such trauma for years on end. So yes the victim may indeed still have vivid recollection of the incident and the faces of some of the people who robbed him. However, it is to be noted that these are people who he had never seen before or see again after that, not for a period of almost five years.
57. The man whom he identified in court as Peter Dominic had half his face covered by the gun which was aimed at him so there is some doubt if he could have really had a good view at the man's face. I am bound to ask; what is it about the two men he identified that can enable him to clearly identify them almost five years later?
58. There is no doubt that the witness truly believed that the men he identified in court were the men he saw at the robbery scene. However, as we have seen above, he may be mistaken.
59. I warn myself therefore of the dangers that are inherent in eye-witness identifications and more so in traumatic incidents such as the one under consideration.
60. In the final analysis I am of the firm view that in the circumstances it is unsafe for me to accept the identification evidence of the victim.
61. What about the witnesses' identification of the sling bag (Exhibit A)?
62. The victim identified the bag as his. He brought it over from China and had been using it for four years before the robbery as a money bag. He maintained under cross-examination that the bag was his even when it was put to him that this was bag that was common and can be bought from any store in the country.
63. Inspector Bill Sare who accompanied and escorted the victim on his bank runs to Popondetta was able to immediately recognize the bag when he saw it on the accused Chris Bora when the police apprehended him and the co-accuseds at William Kaure's haus win at Omsetta.
64. Sydney Warafa, Roman Sema and Kevin Kauka all recognised and identified the bag as the one that they caught Chris Bora with in the mountains when they caught him and Peter Dominic.
65. I am satisfied therefore that Exhibit A for the State had been overwhelmingly identified by witnesses and it reasonably follows therefore that the bag belonged to the victim.
66. However, is there sufficient evidence to prove that the accused persons were involved in the Robbery? If there is, what is that evidence?
67. Firstly there is no dispute that the accused Chris Bora and Peter Dominic were caught by Sydney Warafa and others fleeing from the scene of the crime. Sydney and his colleagues followed fresh tracks into the jungle away from the crime scene and saw six men fleeing up the mountains. Four escaped while Peter Dominic and Chris Bora were caught. There is uncontroverted evidence from Sydney Warafa that the two were sweating heavily and were out of breath.
68. Chris Bora was caught with a sling bag with cigarettes and music cassettes numbering more than five in it. There is evidence that Peter Dominic confessed their involvement in the crime and promised that they (Sydney and his colleagues) will have their share of the loot. Despite the fact that Sydney and his friends issued threats to Peter Dominic and Chris Bora I find that these statements were made and the items were found in their possession immediately after the robbery.
69. There is evidence – uncontroverted – that when Sydney Warafa and Romen Sema brought Chris Bora and Peter Dominic to Omsetta Village where they said they were staying, Sydney told Andrew Kaure that the two had got lost in the bush so they brought them in. Andrew told Sydney "they will sort you out. They will give you your share." This statement was unsolicited.
70. There is uncontested evidence that the accused persons are not from the area. Except for Joe Teviri who said he is married to Andrew Kaure's cousin sister from Omsetta all accused persons are strangers.
71. There is uncontroverted evidence from State witnesses that on the night the police caught them sleeping at William Kaure's haus at Omsetta, the sling bag which the victim used to carry the of K34000 (cash) and the cigarettes and music cassettes was found in Chris Bora Possession. I accept that K8200 in cash was found under mattresses on which Peter Dominic and Andrew John were sleeping.
72. So what can we make out of these facts? I have rejected the victim's identification evidence of Peter Dominic and Andrew John at the actual robbery. Hence, the State's case to a large extent becomes circumstantial only from here.
73. The law on circumstantial evidence is clear. There is no question that a court may convict entirely on circumstantial evidence in the absence of direct evidence. Denden Tom& Ors –v- The State (2008) SC 967; Garitau Bonu & Rossana Bonu –v- The State (1997) SC 528.
74. However, it may only convict if the accused's guilt is "not only a rational inference but the only rational inference" that it can draw under the circumstances. Furthermore the inference must be reasonable and not merely conjectural. Tom Morris –v- The State [1981] PNGLR 493. And unless the proven facts are inconsistent with the accused innocence he ought to be acquitted. Paulus Pawa –v- The State [1981] PNGLR 498.
75. So I must ask myself; do the facts allow me to draw not only a rational and reasonable inference but the only rational and reasonable inference that the accused are connected to and were involved in the armed robbery of Michael Zhing on the 20th of October 2008?
76. The evidence shows that the robbers fled the scene on foot towards mountainous country. Peter Dominic and Chris Bora were caught – sweating heavily and out of breath - with the victim's money bag which still had his cigarettes and music cassettes. While the cigarettes and cassettes were taken from them by their captors Chris Bora still had the bag with him when they were apprehended in the early hours the next morning at William Kaure's haus win at Omsetta where they were all sleeping.
77. For two men who were supposedly in the area to buy gold, does it not seem odd that no gold scale was found in their bags? Why would they – total strangers in the area – be running away from the scene of the crime, with the other four who escaped into the mountains, when, they should be in the villages looking for villagers with gold to sell, if they were indeed gold buyers?
78. If they were trying to go to Omsetta where they told Sydney and others they were staying why take a difficult route through the mountains when they could have followed an easier route or the main road or a commonly used track?
79. The five accused were caught together at William Kaura's haus wind. A large amount of cash was found under the mattresses that Andrew John and Peter Dominic were sleeping on. There is no other explanation how that money got there nor did anyone of them claim possession of the money, not even Peter Dominic and Joe Teviri when they gave unsworn statements from the dock.
80. Is it mere coincidence or by some stroke of fate, that five men, four of whom are complete strangers to the area, happened to find themselves in Omsetta Village and ended up sleeping together in one haus win on the night of the robbery?
81. Joe Teviri said that he is an in-law of the Kaure's – and he may indeed be – and that he, Paul Luke and Andrew John were lodging with his in-law Andrew Kaura. He had the opportunity to tell the court what they were doing there or when exactly he came to his in-laws or if he and his wife live in the village, but he did not. And I am not suggesting for a moment that he has to say anything or prove his innocence. However, having exercised his right to make a statement, albeit an unsworn one, he ought to have grasped the opportunity and tell the court what he and his friends were doing at his in-laws as he does not reside there by the sound of things.
82. How about the guns that were used in the robbery? None of these were found on the accused. Counsel for the accused said that this illogical with the modus operandi, if I can put it that way, of armed robbers. Having just robbed the victim, it would be logical, he argues, that the accused would have still had the guns with them for protection.
83. That may be the case but they could have also easily hidden the guns with the rest of the loot to avoid incriminating themselves if these were found on them.
84. Furthermore, there was a sixth man involved. It is not unreasonable to infer therefore that the accused could have hidden the guns and the rest of the stolen money or left them in the custody of their accomplice.
85. In conclusion, taking all the proven circumstantial facts together, I am satisfied beyond reasonable doubt that there can be one and only one rational inference or conclusion. And that is that all the accused persons were involved in the robbery. They acted together and robbed the victim of the properties in question. They were armed and in company of each other and they used actual physical violence him.
86. They are covered by Section 7 of the Code, and therefore regardless of what each one of them individually did they are deemed to have all committed those acts as principal offenders.
VERDICT
87. I therefore return a verdict of guilty on all five accused persons and accordingly convict them each and severally.
Orders accordingly
____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Accused
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