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State v Ipai [2013] PGNC 322; N5455 (23 November 2013)

N5455

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 269 OF 2011

THE STATE

V

MICHAEL EVO'O IPAI

Popondetta: Toliken, AJ.
2013: 11th, 12th, 13th, 14th,
15th, 23rd November

CRIMINAL LAW – Particular offence – Armed robbery – Co-accused – One accused has no case to answer – Trial proceeds for one accused only – Elements of taking and use of violence proved - Use of dangerous weapon – Firearm used after taking and carrying away of property not to prevent or overcome resistance but for protection against guards who charge at accused when he returns to return property - Insufficient evidence to prove element of fraudulent intention to deprive complainant of his property – Verdict of Not Guilty – Criminal Code Act Ch. 262, s 386.

Cases Cited:
The State v John Kufen CR 269 of 2010; The State v Michael Evo'o Ipai (No.1) of 2010 (unreported and unnumbered judgment dated 15th November 2013)

Counsel:

J.W. Tamate, for the State
P.Moses and T. Ilaisa, for the prisoner

JUDGMENT ON VERDICT

23rd November, 2013

1. TOLIKEN, AJ. The accused is on trial for one count of armed robbery an offence against Section 386 (1)(2) of the Criminal Code Ch. 262. He was jointly charged with John Kufen. (CR No. 268 of 2010)
   
2. They are charged that:
   

" ... on the 03rd day of November 2010 at Comfort Inn hotel, Popondetta Town in Papua New Guinea, they, ... stole from one MENSON GOUMEI with actual violence Two Thousand Three Hundred Kina (K2,300.00) in cash, a Samsung Digital video camera valued at K2,700.00 a Nokia mobile phone valued at K200.00, properties belonging to MENSON GOUMEI AND AT THE AFORESAID TIME they, ... were armed with a dangerous weapon namely, a police issue Sig Saur firearm pistol number S217414."(Sic.)

3. At the end of the prosecution case the defence made a no case submission. I upheld the submission only in respect of the accused John Kufen and ruled that he had no case to answer and acquitted him. (See separate ruling in The State v John Kufen CR 269 of 2010; The State v Michael Evo'o Ipai (No.1) of 2010 (unreported and unnumbered judgment dated 15th November 2013) The trial against Michael Evo'o Ipai then continued.
   

THE OFFENCE
3. The offence of robbery is defined by Section 384 of the Code as follows:

384. Definition of robbery.

A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

4. Robbery is an aggravated form of stealing which involves the use or threatened use of violence against another person. And since stealing is an element of the charge it must be separately proved by the State.
   
5. Stealing is defined by Section 365 of the Code. Basically it is the fraudulent taking of anything that is capable of stolen or the fraudulent conversion of such a thing. A person is deemed to have fraudulently taken or converted the thing if he intended to permanently deprive the owner or the person in possession of the property. However, for the offence to be complete there must be a taking and carrying away (asportation) of the property.
   
6. The offence of robbery itself is created by Section 386 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.

7. A robbery can be a simple one under Section 386(1) or an aggravated one under s 386(2). The elements of the charge of armed robbery are:
   
   1. The accused
   2. Stole property (took and carried away (asportation) property with the intention of permanently depriving the owner or person lawfully in possession of the property without his consent)
   3. The Property was taken from the person of another
   4. The accused was in company of others
   5. Was armed with a dangerous weapon
   6. Immediately before, during or immediately after the taking of the property he used violence or wounded the person of another.
      

THE EVIDENCE

State's Case
Evidence of the Complainant

8. Mr. Menson Gomei (the complainant) – a businessman involved in alluvial gold mining in Kokoda - testified that on the date in question he and two of his employees came into town to replenish his fuel supplies and rations. He had on him K1800 cash for his shopping. They arrived in town sometime after 5.30p.m and went straight the BSP where withdrew K1000 from the ATM at 5.43p.m. They then proceeded to the Comfort Inn to secure accommodation for the night but he decided to play the pokies and have a few drinks before securing accommodation. So they proceeded straight to the Pokies.
   
9. Sometime later that night the accused came into the Pokies. They knew each other previously when the accused had assisted the complainant to recover monies owed to him by other people. The accused asked the complainant to sponsor or place a bet for him which he did. He then bought beer for the accused and his friend. The accused then demanded a second and then a third bet to which the complainant willingly agreed. When the accused demand a fourth bet, the complainant refused telling him that he had budgeted his funds and then left to arrange their accommodation.
   
10. At the lounge area the complainant met a staff member of the hotel (who turned out to be the Duty Manager) and was talking to him when accused followed him out. The accused then asked the complainant what he was doing there and whether he was saying bad things about him – that he was a con man. The complainant denied saying such a thing. At that the accused replied saying that complainant was liar and then punched him in the face. The complainant fell down on the floor and when he got up the accused punched him again and he again fell to the floor. By this time the complainant was bleeding so he decided to run away from the accused but the co-accused John Kufen (acquitted) blocked him off and punched him on the cheek. The complainant fell down and at that that time the complainant said that one of them must pulled a waist bag that was around his neck. As he got up the complainant heard the accused say "I will kill you!" He ran towards Steamships Hardware, jumped over the fence in the Steamships yard and jumped over to the other side of the fence. He then went across to the field and hid in a drain until daybreak. He reported to the Popondetta Police Station at 6.30a.m. The bag was said to have contained K2300 cash and other small notes, a Sumsung Digital Video Camera, a Nokia mobile phone, a torch and other small items and a shopping list.
    
11. In examination in chief the complainant said he won a lot of money that night before the accused came in. In cross examination he said that he bought beer for his boys and played pokies. He said he placed K500 in bets but won money too. He said he knew exactly how much he had in the waist bag – that is K2300.00. He did not know exactly when the accused came in but denied being so drunk by that time. When it was put to him that he was not sure which of the co-accused pulled the bag from him he said that said one of them ripped the bag from his neck. When it was suggested to him that he was getting money out of a wallet when he was playing pokies the complainant said that he was taking money out of his pocket but could not remember if he had a wallet and whether it was in his pocket or in the waist bag. He was sure though that he had his shopping money in his waist bag. The complainant also denied saying to the accused that he was a con policeman at the pokies area.
    

Evidence of Benjamin Gerard

12. Benjamin Gerard was the Duty Manager at the Comfort Inn that night. He was at the reception when the complainant came and asked for a room. Just then he heard a big bang on the main door and someone swear saying "Kaikai kan. Ol security we? Come and open the door!" He opened the blinds and looked out and saw the accused standing outside. He then told the complainant to go and wait in the lounge area while he went out to look for a guard to open the door. He went out but could not locate a guard. When he saw the complainant sitting at the lounge and went over to him to assist him. At that moment he heard the chains to the eastern gate rattle and when he looked out he saw the accused run though the gate.
    
13. The accused entered the lounge area shouting "Kaikai kan, man ya i stap we?" When he saw them he walked quickly towards them and asked the complainant what he was there for and why he had called him a conman. He punched the complainant and the complainant fell down. As he stood up he felled him again with another punch. At that time the co-accused John Kufen came from the side and also punched the complainant. They then started to kick the complainant as he was rolling on the floor trying to protect his face. The accused Michael Evo'o then grabbed the complainant's waist bag, pulling and removing it from his shoulder. Gerard said he told the accused Michael Evo'o to stop what he was doing. The guards came in and stopped him. They told him to return the waist bag but he refused. At that time the complainant walked away into the dark and escaped.
    
14. The accused then left the lounge area and went out of the hotel. Gerard said he followed him out. Out in the car park he saw the accused Michael Evo'o assault one of the complainant's employees. He then walked out of the hotel premises with the bag but then returned sometimes later and started asking for the complainant. He took out a pistol from his back pack and pointed it at the Gerard and the guards whilst asking for the complainant. Getting no response he threatened to shoot the guards telling them that their shift had ended and why they were wasting their time there. He told them to home to their wives who were waiting for them to come home and have sex with them. Gerard said that the whole episode took about 10 – 20 minutes.
    
15. Gerard said in cross examination that the complainant arrived at the pokies around 7.00p.m. He did not know how many people were with the complainant that night. He agreed though that there were a lot of people at the pokies that night. He did not know if the complainant was buying beer for the guards but the guards reported to him that the complainant was buying beer for the accused and sponsoring bets for him. He admitted that he did not see the accused armed when he assaulted the complainant. Gerard denied that the bag fell off from the complainant as he was struggling to get away and further denied that the accused picked it up. He denied seeing the bag with the accused at the car park. He also denied that he and guards were angry at the accused and moved forward to attack him prompting him to pull out his gun from his bag. He said he was 15 – 20 meters away from the accused when he saw him pull out the gun. Gerard also said that both Michel Evo'o and John Kufen were in uniform.
    

The Defence Case
Evidence of the Accused

16. The accused gave sworn evidence. He testified that on the night in question he went to the Pokies at the Comfort Inn sometime between 9.30 – 10.00p.m after attending a function at Vudal University (Oro) Campus. He was a serving member of the Police Force then attached to the Tactical Response Unit here in Popondetta. He said he was in civilian clothes and had his backpack with him. When he entered the pokies bar he saw that machine No. 9 was free so he a placed K50 bet on it. He saw complainant whom he knew, having previously assisted him in recovering debts from people. The complainant was playing on machines 12 & 13. The complainant saw him and came across to him. They greeted each other, shook hands and hugged. At that time the accused knew the complainant as Mr. Heers.
    
17. The complainant offered the black can of beer but the accused told him that he only drinks white can so the complainant told him that he will buy him white can. A while later Security Guard Rodney Walter brought a 6 pack of white can beer in a tray. The accused drank as he played. The complainant then walked over to check if the accused had received the beers and told him to call if he needed anything. The accused noticed 5-6 people around the complainant as he was playing. There were two security guards at the Pokies that night – Rodney Walter and Fred Gaya – and both were playing and drinking with the complainant. The accused then walked over to the complainant and asked him to sponsor a bet for him. The complainant reached for his pocket and pulled out a brown wallet and gave the accused a K50.00 note. The accused took the money and continued playing. He, however, lost all his credits and asked and was given more money by the complainant. He continued playing and won K80.00 but the decided to change machines so he switched to Machine No. 4.
    
18. The complainant then walked pass him and said "Yupela ol policeman kam conim mi na mi pinis money bilong me" and then walked off through the bar into lounge area. The accused said he felt very insulted as he was the only policeman at the pokies that time so he asked the complainant what he said and immediately went after him but the complainant closed the door behind him. The accused, followed by Fred Gaya and Rodney Walter used another door and went after complainant. The accused found the complainant talking to the Duty Manager Benjamin Gerard. He asked him why he called him a con policeman. The complainant did not reply. The accused called him a liar and punched him as he (complainant) where he was sitting. As he tried to get up the accused punched him again and he fell to the floor. He then got up and ran and the accused saw Fred Gaya and Ronny Walter run after him. He then saw Fred Gaya punch the complainant. He then saw the waist bag lying on the floor where Fred Gaya punched the complainant and picked it up. John Kufen then came and told the accused to stop and asked that they leave. The accused then walked out of the Saloon bar area With John Kufen, Benjamin Gerard, Rodney Walter and Fred Gaya.
    
19. They walked out to hotel car park and out of the hotel premises over to HQH Store car park. The accused still had the waist bag with him. He the emptied the contents of the bag under the flood lights in front of the HQH Store in view of John Kufen, Fred Gaya, Rodney Walter and some mothers who selling betel nut and smoke there. His intention was for these people to witness what was in the bag. The contents of the bag were a Samsung Video Camera, a torch, 6 x K2 notes and a plastic bag with some items. He put everything back in the bag and then walked back into the hotel to return bag to the Duty Manager but the guards rushed at him and Fred Gaya even tried to grab the bag from him. At that point the accused put the waist bag in his backpack and knowing the reputation of this particular security company he pulled out his pistol from his backpack to protect himself and John Kufen who had followed him back in.
    
20. The accused said that he had been attacked by criminals in the past in the course of duty and still has 37 shotgun pellets in his body. He said also that this same company was responsible for two fatalities in same hotel when the guards attacked the victims in a similar manner. So he aims the gun at the guards' feet and retreated out of the hotel gate. He and John Kufen left together but the separated. He went to the Police Station for assistance to get home. He finally got home at 2.00a.m. He took the waist bag home with him.
    
21. Early the next morning the complainant arrived at his premises together with Rodney Walter hotel guard RW and 15-20 other people looking for him> calling for him. They attacked his wife and her relatives, ransacked his chicken house and took away some properties before chased off by his wife's relatives. The accused later called Station for assistance to get to Station. When he arrived at the Station he learned from the Provincial Police Commander (PPC) the late Micah Ainawe that the complainant had lodged a complaint against him. He returned the pistol to PPC Ainawe. He was directed to remain in the Station to have matter sorted out but that did not happen so he returned the next day. He was interviewed and surrendered the waist bag with its contents to arresting officer.
22. The pistol was issued to PPC Ainawe who had exchanged it for a Pump Action rifle issued to the accused for a trip to Kokoda. The accused denied having the intention to rob the complainant. He said that he only picked it up the bag after dropped by complainant and that he had intended to return it to the Duty Manager.
    

Evidence of Peter Marigita

23. Peter Marigita is a night auditor with Comfort Inn. On the night in question he was the Relief Cashier at the Pokies. He testified that he saw the complainant enter the Pokies bar sometime between 5-6.00p.m. and immediately started playing on machines 12 & 13. He was placing K100 bets and by the end of the night had spent more than K2500. He also bought a lot of beer for others and his escorts. There were a lot of people in the pokies that night. Marigita noticed that the complainant was taking a lot of money out of a brown wallet and giving K100 notes to others to buy beer in lots of 6 to 12 bottles. As for the accused Maragita said he had placed about K300 in bets though he did not know who sponsored him. He said the complainant spent more than K500 at the bar. He said he was able to know this because he was also standing in for the barman when he went out for room service and he noticed that the complainant was handing up a lot of K100 notes to buy beer. He admitted that complainant won at the pokies but his takings were not enough to off-set what his losses so he.
    
24. Mirigita said in cross examination that he had a good memory so he was able remember what happened that night. He admitted that he did not have receipts to prove what he was saying, that he did not know whether the complainant was carrying a waist bag or how much was in there. He said that he did not hear complainant call the accused a conman. He admitted though that the complainant was in some sort of trouble that night and of assisting him to the lounge bar through the staff entrance through the bar. He said he did not see John Kufen in the pokies and that Rodney Walter and Fred Gaya were there though he cannot recall if they were on duty that night. He said he could not hear noise outside as the pokies office was sealed off with only a small glass window and small hole.
    

Evidence of Beata Nilki

25. Beata Nilkis, a teacher by profession, testified that she and John Kufen came to the pokies after 7.00p.m. that night. No machines were free so they stood around watching others play. She saw the accused come in sometime between 9 – 10.00p.m and placed a bet on machine 9. She saw the complainant buy a tray of beers (6 cans) for the accused. Later she saw the complainant ask the accused to buy him beer. When the accused declined the complainant got angry and walks off saying loudly "Yupela ol policeman ol conman. Yupela finisim money blong me. Yupela ol policeman or criminals?" She saw the complainant walk out through where toilets are with security guards Fred Gaya and Rodney Walter calling after him saying "Hey Big Boy, how could you say such a thing to us the police?" And together with the accused they went after the complainant. Beata said she knew that there will be trouble so she and John Kufen left the pokies bar. Once outside she left John Kufen and walked across to HQH Store to wait for him.
    
26. After a while the accused, John Kufen, Fred Gaya and Rodney Walter came across to HQH. There, in her presence and mothers selling betel nut, John Kufen, Fred Gaya and Rodney Walter the accused emptied the contents of a waist bag he was carrying. These were a Digital Video camera, a torch, 6 x K2.00 notes and a plastic bag containing small papers like receipts. The accused then told them that he will return the bag so he returned to the hotel with John Kufen, Fred Gaya and Rodney. As they entered she saw the hotel guards charged at the accused who, then retreated with John Kufen. They all left together but later separated - she went home with John Kufen while the accused went to the Police Station.
    
27. In cross examination Beata said she did not know if complainant had sponsored bets from the accused because they were separated by a partition but did agree that the cashier's box had a small glass window with a small hole at the bottom. Any one in there can only see the machines in front but not those on the side where the accused was. He would also not be able to see everyone in the room. She said the complainant uttered the words loudly for everyone to hear because other patrons gave a puzzle look at him. Beata also said that could see the guards rush at accused through the wire fence. The hotel was not fenced with corrugated iron as it now. She said did not hear any shouting though. She confirmed that had his back pack with him.
    

FINDINGS OF FACTS

Undisputed Facts

28. That on 03rd of November 2010 the complainant, who ran an alluvial gold mining business, came down to Popondetta Town from Kokoda to buy fuel and rations. He was accompanied by two of his employees. He had on him K1800.00 in cash. When they arrived in town he withdrew K1000 from the BSP ATM at around 5.43p.m and then proceeded to the Comfort Inn for drinks and to play at the pokies. He also intended to book a room there for himself and his two employees. He and his employees proceeded straight to the pokies and bar he bought beer and played pokies.
    
29. Sometimes between the 9.00p.m. and 10.00p.m. the accused, a policeman, arrived at the Pokies from Vudal University (Oro) Campus where he had earlier that night attended a farewell function. There he met the complainant. The two knew each other as the accused in his capacity as a policeman had in the past assisted the complainant in recouping monies owed to him by other people. The accused then knew the complainant as Mr. Heers.
    
30. Whether the accused asked the complainant to buy him beer and sponsor him at the pokies or whether did so only at the accused's request, it is not disputed that he bought him a round of beer, at the very least, and sponsored him at the pokies with K50.00 bets three times. What happened immediately after this is disputed and I will return to it later. Needless to say, the accused angrily followed the complainant out to the Saloon bar lounge on the outside of the Pokies bar and confronted him asking "What are you doing here? Why did you call me a con policeman?" When the complainant did not reply the accused called him a liar and then punched him with a folded fist. The complainant fell down and as he got up the accused punched him again and he fell down on the floor.
    
31. At this point the complainant said that someone pulled out his waist bag that was slung over his shoulders. He was not sure who it was but State witness Benjamin Gerard the Duty Manager at the hotel that night said it was the accused. The accused, however, said that he only picked up the bag after it had fallen on the floor.
    
32. Fearing for his life the complainant got up and ran but said he was blocked and punched by the co-accused John Kufen (acquitted) though the accused testified to the contrary that he was punched by a hotel guard Fred Gaya. The complainant managed to run into the dark and jumped over the fence into Steamships Hardware and over to the other side. He then proceeded to the field opposite the Comfort Inn and slept in a drain until morning out of fear that he might be assaulted again if he showed himself. He reported the matter to the police at 6.30 a.m. on the next day.
    
33. In the meantime, at the hotel the accused took the waist bag and left the saloon bar area and walked out into the car park where I am satisfied he met one of the complainant's employees and asked him where his boss was. He then punched the employee and then left the hotel premises with the complainant's bag. He, however, re-entered the hotel premises and pulled out a pistol and pointed it at the Duty Manager Benjamin Gerard and his guards.
    
34. Now there is no dispute that in the waist bag was a torch, a Samsung digital video camera, six K2.00 notes and a plastic bag containing some papers and receipts. There was no cash of K2300 and a Nokia mobile phone when the accused handed the back and its contents to the arresting officer two days later on 05th November 2010 at the Record of Interview.
    

Dispute Facts

35. The pertinent disputed facts are as follows:
    
    1. Whether the complainant offered insults at the accused
    2. Whether the complainant was blocked off and punched by John Kufen or was he punched by Fred Gaya
    3. Whether the accused pulled the waist bag from complainant's neck or whether he picked it up from the floor after it allegedly fell down during the altercation.
    4. Whether Fred Gaya and Rodney Walter assisted the accused in chasing after and assaulting the complainant
    5. Whether the complainant had K2300 in his waist bag together with other properties
    6. Whether Fred Gaya and Rodney Walter followed the accused and John Kufen out of the hotel premises to HQH Store and once there whether the accused emptied the contents of the waist bag in their presence
    7. Whether the accused was accompanied by Fred Gaya and Ronny Walter when he returned to the hotel premises and whether it was his intention to return the bag to its owner the complainant?
    8. Whether the accused was confronted and charged at by the hotel guards and whether Fred Gaya tried to get the bag from the accused causing him to draw his pistol on them?
       

Deliberations and Findings on Disputed Facts

36. Let me now turn to deliberate on the disputes facts.
    

Whether the complainant offered insults at the accused

37. It is obvious that something provoked or prompted the accused to follow the complainant out and assault him. The State says that he was angry when complainant refused to sponsor bets for him anymore. I do not know if this could have provoked the kind of reaction by accused. I am led to believe that the complainant, who obviously would have been affected by alcohol by then, must have indeed said something or offered some sort of insult to the accused so that he reacted in the manner he did. He followed him out immediately and he may indeed have tried unsuccessfully to gain entry though the main door as deposed by Benjamin Gerard. What is important though is that he was really angry about something. And I believe and infer therefore that the complainant indeed uttered the words attributed to him by accused and his witness Beata Nilki.
    

Whether the complainant blocked off and punched by John Kufen or was he punched by Fred Gaya.

38. The question here is whether to believe the complainant and Benjamin Gerard who said John Kufen also assaulted the former after blocking him off or version it was Fred Gaya who punched the complainant. Fred Gaya and Rodney Walter were not called to give evidence. The complainant's and Benjamin Gerard's evidence seem convincing. However, something that was not raised by either counsel was where exactly the complainant was blocked off and subsequently assaulted, how far away he was from the accused by then and whether there was sufficient lighting around. There is a possibility that lighting may have been poor as is the case around most bars or that this particular event would have taken place somewhere outside where the lighting would have been poor. There is therefore a real possibility that all them – the complainant, Benjamin Gerard and the accused - would have been mistaken if visibility was poor. I therefore do not make any firm findings on this issue though the benefit of doubt must obviously be applied to the accused.
    

Whether the accused pulled the waist bag from complainant's neck or whether he picked it up from the floor after it allegedly fell down during the altercation.

39. The complainant was not sure who pulled the bag out from his neck. He could not tell whether it was the accused or John Kufen. Benjamin Gerard was, however, positive that it was the accused. The accused on the other hand said he did not - he only picked it from the floor where it had fallen. So who am I to believe? Is Benjamin's Gerard's evidence reliable? He seems to have exaggerated his evidence a little bit. For instance he said that the accused and John Kufen were kicking complainant as he was rolling around on the floor. The complainant did not say anything of that sort and this is confirmed by accused. Both do not mention that the accused and John Kufen kicked the complainant while he was on the floor let alone that he was rolling on floor trying to block his face from their kicks. But whatever, the real situation was, and I am not inclined to believe Benjamin Gerard, the fact of the matter is that the accused ended up taking the bag and carrying it away with him when he exited into the car park and out of the hotel premises.
    

Whether Fred Gaya and Rodney Walter assisted the accused in chasing after and assaulting the complainant

40. The accused and Beata Nilki said that these two immediately pursued the complainant from the Pokies bar after he uttered insults at the accused. The accused said that Fred Gaya punched the complainant outside. Fred Gaya and Rodney Walter were not called to give evidence though the accused suggested that they were available. I am not prepared to make any firm findings then on this issue. But even if I did, it will not have any impact on the ultimate issue – whether the accused robbed the complainant.
    

Whether the complainant had K2300 in his waist bag together with other properties

41. The only person who would know for sure if there was indeed K2300 cash in the waist bag was complainant himself. If he brought K1800 with him from Kokoda for his rations and supplies and then withdrew K1000 from the ATM he would have had K2800 or a little over that if he had some other loose notes as he said he did. That means that he would have only spent K500 at the pokies and on beer. Peter Marigita said that complainant spent more than K2500 at the pokies and over K500 for beer. The complainant did win at the pokies but did not collect as these were less than what he had spent. He had been at the pokies from sometime after 6p.m so it is reasonable to infer that he would have had people around him as Peter Marigita said and obviously he would have bought beer for them and at the same time spent more money at the pokies. The pokies bar closed at 10.00p.m. so it can also be reasonably inferred that he would have spent more than K500 as he would want us believe.
    
42. Granted, the complainant said he had set aside his shopping monies from other monies he had but given the fact that he was not sure whether he had a wallet or whether he was getting money from his waist bag which would have been slung over his neck, I cannot on the evidence before me find that he had K2300 in the bag at the time it was taken by the accused.
    

Whether Fred Gaya and Rodney Walter followed the accused and John Kufen out of the hotel premises to HQH Store and once there whether the accused emptied the contents of the waist bag in their presence?

43. On this issue I find that the State has not conclusively dispelled the accused's evidence that Fred Gaya and Rodney Walter followed him and John Kufen out of the hotel premises and across to the HQH Store. The accused maintained this early from his Record of Interview so it is not something that he cooked up recently. Fred Gaya and Rodney Walter were important witnesses to everything that happened from start to finish so their evidence would have shed a lot of light on what really happened that night at various places in the hotel and outside.
    
44. In the absence of any concrete evidence to the contrary I must accept the accused evidence – corroborated by Beata Nilki- that Fred Gaya and Rodney Walter accompanied the accused and John Kufen out to HQH and also witnessed the accused emptied the bag of its contents and putting them back in. I accept that the contents of the bag were (1) a Samsung Digital Video camera, (2) a torch, (3) 6 x K2.00 notes and (4) small papers like receipts.
    

Whether the accused was accompanied by Fred Gaya and Ronny Walter when he returned to the hotel premises and whether it was his intention to return the bag to its owner the complainant?

45. On this issue I find, in the absence of evidence to the contrary, that after the accused put the contents of the bag back he informed those with him that he was to return the bag to the Duty Manager and then walked back across to the hotel. He was accompanied by John Kufen, Fred Gaya and Rodney Walter.
    

Whether the accused was confronted and charged at by the hotel guards and whether Fred Gaya tried to get the bag from the accused causing him to draw his pistol on them?

46. Again in the absence of evidence from Fred Gaya and Rodney Walter, I must accept the evidence of the accused and Beata Nilki that the guards charged at him. While I do accept that the accused may have said or thrown insults at the guard as Benjamin Gerard said I am not altogether convinced that Benjamin Gerard kept a close watch on the movements of his guards or what they were doing that night particularly, Fred Gaya and Rodney Walter, and whether they were on duty at all that night.
    
47. Benjamin Gerard did not tell the Court how many guards were on duty that night but from the general tone of his evidence it can be inferred that there were others apart from Fred Gaya and Rodney Walter. And it would be very unlikely that they would have remained calm throughout the incident. Knowing how guards normally react to such situations it is reasonable to infer that they reacted exactly as the accused described.
    
48. Furthermore it can be inferred also that once back in the hotel premises, Fred Gaya may have insisted that the accused hand over the bag and may have even attempted to go for it thus prompting the accused to go for his gun and aimed it at their feet on the ground.
    

CONCLUSIONS

49. So did the accused rob the complainant on the night in question? The accused is charged with aggravated robbery so the State has to prove that he:
    
    • Took and carried away property
    • With intention to permanently deprive the owner and without the consent
    • The property was taken from the person of the complainant
    • was armed with a dangerous i.e. a pistol
    • was in company with John kufen
    • at, immediately before or immediately after, the time of the robbery, used personal violence on the complainant and threatened others with the gun.
      
50. There is no dispute that the accused took the complainant's waist bag that night. In that bag was a Digital Samsung Video Camera, a torch, 6 x K2.00 (K12.00) and a plastic with items such as receipts. I was not satisfied that there was K2300 in cash or a Nokia mobile phone in the bag but it is not necessary that for the State to prove that all those items were in the bag to satisfy this element of the charge.
    
51. Furthermore in my opinion it does not matter how the bag and its contents were taken – whether he violently pulled it from the complainant or picked it up after it had fallen from him. All that matters is that the accused took the bag and its contents to satisfy the element of a taking. But then there is the element of asportation and I am further satisfied that he did carry the bag away, out of the hotel premises and across the road to HQH Store.
    
52. There is no dispute that he physically assaulted the complainant immediately before or at the time he took the bag. Actual violence was committed against the complainant. But was he in the company of co-accused John Kufen at the moment he assaulted and took the bag from the complainant?
    
53. I was not satisfied fully that John Kufen, though, obviously present also assaulted the complainant. But even if he did it must be proved that they acted together, one aiding and supporting the other and that they had the same intentions. And was he armed at the relevant time?
    
54. I am satisfied that at that instant the accused had in his bag a police issued Sig Saur pistol but did not expose or use it at that time. He only pulled out the pistol and pointed it at the guards' feet when they confronted him. His intention was to return the bag to the Duty Manager. So it cannot be said that he used the firearm to overcome or prevent resistance. If he intended to prevent or overcome resistance, naturally he would have pulled the gun on them as he was exiting the hotel at the first instance. But as I have found he was instead accompanied outside by Fred Gaya and Rodney Walter.
    
55. So the only issue remaining is whether the accused had the requisite fraudulent intention - to permanently deprive the complainant of his properties. The accused must have formed that intention at the very moment he took and carried the bag away. It does not matter if he later changed his mind and intended to return it. If he did then the act of stealing would be complete and if all the other elements of offence of robbery have been proved beyond reasonable doubt then a conviction will be returned against him.
    
56. The accused testified and I have found that he walked out of the hotel immediately with John Kufen, Fred Gaya and Rodney Walter and went across to HQH Store. There he emptied the bag of its contents, put them back and immediately returned to the hotel to return the bag to the Duty Manager. There is no evidence that he tampered with the bag on the way out though he could have because he had the opportunity as argued by the State. None of the people who were with him gave evidence so the accused is entitled to the benefit of a doubt on this point.
    
57. So regardless of the accused's somewhat bizarre behaviour from which fraudulent intention or evidence post offence guilty conduct can be inferred - as he made a point in emptying the contents of the bag in front of witnesses as an attempt to hide the fact that he had taken the cash and impress upon them that he did not have any fraudulent intentions - I ultimately find that the State's evidence is insufficient to prove beyond reasonable doubt that he intended to permanently deprive the complainant of his waist bag and its contents at the relevant time, that is, at the time he took and carried away the waist bag and its contents.
    

VERDICT

58. I therefore find the accused NOT GUILTY, acquit him of the charge and discharge him forthwith. I also order that his bail and cash sureties paid by his guarantors be refunded to them.
    
59. Ordered accordingly.

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