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State v Don [2021] PGNC 86; N8786 (6 April 2021)

N8786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 137 OF 2016

THE STATE

V

BOBBY ANDREW DON

Waigani: Berrigan J
2020: 14^th, 20^th & 21^st October
2021: 6^th April

CRIMINAL LAW – Confessional Statement – Admissibility – Voluntariness – Common Law – S 28 of the Evidence Act - Discretion to exclude on basis of fairness – Discretion to exclude where prejudicial effect outweighs probative value - Armed robbery in the company of others – Elements of offence – Parties to Offence under s 7(1)(a) and s 7(1)(c) of the Criminal Code – Guilty.

Cases Cited:
Papua New Guinea Cases

Gasika v The State [1983] PNGLR 58
Wendo v R [1963] PNGLR 242
The State v Kwambol Embogol, N91, 7 April 1977
The State v Balana [2007] PGNC, 12, 21 March 2007
The State v August Toiamia (1978) N145
The State v John Michael Awa and Others CR No 905 of 1998, 15 May 2000
R v Tovarula [1973] PNGLR 140
Balbal v The State (2007) SC860
R v Ginitu Ileandi [1967 – 1968] PNGLR 496
The State v Kwambol Embogol (1977) N91
R v Suk Ula [1975] PNGLR 123
Constitutional Reference No1 of 1977 [1977] PNGLR 295
R v Skelly [1965 – 1966] PNGLR 105
The State v Kwambol Embogol (1977) N91
George Ikalom & Anor v The State (2019) SC1888
Ikalom v The State (2019) SC1888
The State v Boria Hanaoi & Ors (2007) N4012
R v Tovarula [1973] PNGLR 140
R v Wendo [1963] PNGLR 217
Agiru Aieni v Paul T Tohian [1978] PNGLR 37
Wani v The State [1979] PNGLR 593Vaii Rocky Maury v The State (2001) SC668

Charles Andrew Epei (2019) N7845
Imiyo Wamela v The State [1982] PNGLR 269
Paulus Pawa v. The State [1981] PNGLR 498
Andrew Mulungu v The State (2020) SC2034
Tom Amaiu v The State [1979] PNGLR 576

Overseas Cases

Borg v R [1972] WAR 194
Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534
McDermott v R [1948] 76 CLR 501
R v Christie [1914] UKLawRpAC 20; [1914] AC 545
R v Lopuszynski [1971] QWN 33
R v Turan (1952) N211

Legislation and Other Materials Cited:

S 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)
S 7(1)(a) and (c) of the Criminal Code
S 28 of the Evidence Act
S 42(2) and 57 of the Constitution
s 102 of the District Court Act, 1963, Chapter 40

Counsel

Ms L. Jack, for the State
Mr E. Sasingian, for the Accused

DECISION ON VERDICT

6^th April, 2021

1. BY THE COURT: The accused was charged with one count of armed robbery, in the company of others, contrary to s 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code) such that on the 1^st day of May, 2015 he stole from one Richard Sios with threats of actual violence, cash monies and cheques valued at K118,020.70, the property of Paradise Private Hospital.
   
2. The State alleged that between 8 and 9 am on 1 May 2015 the accused was in the company of Joe Joseph Kapinias and two other men, referred to only as Martin and David, when they robbed the Paradise Private Hospital at 3 Mile in Port Moresby. It is alleged that the accused and his three accomplices drove from Gerehu Stage 2 to Hohola Service Station where they purchased fuel before driving to the hospital. The accused and his accomplices, armed with factory made pistols entered the back gate, where the accused stood with a guard at the gate. The accused kept watch over the guard while his accomplices walked to the back door leading into the hospital lobby. As they approached the door, the complainant, Richard Sios, opened the door. The men pointed their pistols at Mr Sios’ head and ordered him to give them the money bag. In fear for his life Mr Sios handed over the bag which contained cheques and cash monies in the sum of K118,020.76, ready for banking that morning. The monies belonged to Paradise Private Hospital.
   
3. The accused and his accomplices took the bag and boarded a waiting vehicle, Toyota Camry, registration BDW 677, and proceeded to a house located at Bisini, Section 7 Allotment 9, along Bisini Parade, where they shared the stolen money amongst themselves. The accused received K2500 as his share.
   
4. The State relied on s 7(1)(a) and (c) of the Criminal Code.
   

STATE’S CASE

Confessional Statement

5. A notice of voir dire objecting to the admission of the accused’s confessional statement made on 6 May 2015 was filed by the defence prior to the trial. At the request of the parties the voir dire commenced immediately following arraignment. I admitted the statement following the voir dire and undertook to provide reasons, which I do now.
   
6. The notice was not in proper form in that it did not state explicitly that the statement was objected to on the basis that it was not voluntarily made, but that was made clear by the matters alleged in the notice. In particular, the accused contended that he was at his girlfriend’s house at Bullets Street, Gerehu, Stage 2 when policemen arrived in a white Toyota ten seater unmarked vehicle and ordered him into the vehicle. In the vehicle the policemen tied his hands and legs with his belt and blindfolded him. They took him along Baruni Rd to Moto Kai where they took him up a hill to a Digicel Tower. The accused was able to see when they removed the blindfold. The officers cocked their guns and pointed them at the accused and told him that they knew all his stories and that he would end up in the morgue if he did not talk. Out of fear he just said “yes I will admit”. He was then taken to the Hohola Police Station where his statement was obtained by officer Kosinto Etora who had already typed the statement for the accused, which was not given by him. The police officers required for the voir dire were Teteman Jonah, Steven Numbos and Kosinto Etora.
   
7. The Supreme Court in Gasika v The State [1983] PNGLR 58 held that on a voir dire to determine the admissibility of a confession the matters for determination are: (a) the question of its voluntariness; and (b) whether in all the circumstances of the case it would be unfair to admit the material against the accused. Apart from the particular discretion to exclude evidence of a confessional statement, a trial judge has a general or residual discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value.
   
8. It is well established that an out of court statement or confession is not admissible unless it is voluntary.
   
9. At common law “whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or remain silent, it must be shown to have been so made before it can be admitted in evidence against him.”: Wendo v R [1963] PNGLR 242 to 245 per Dixon CJ, Owen and Tailor JJ; The State v Kwambol Embogol, N91, 7 April 1977. See also The State v Balana [2007] PGNC, 12, 21 March 2007.
   
10. The leading definition of voluntary at common law is found in Dixon J’s judgment in McDermott v R [1948] 76 CLR 501 @ 511:

“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ... The expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority ...”

11. Section 28 of the Evidence Act, (Confessions Induced by Threats) codifies the position at common law regarding persons in authority. It provides:
    

“A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.”

12. Pursuant to s. 28 of the Evidence Act, once there is a threat by a person in authority, the statement is inadmissible until the contrary is shown. The defence does not have to show that the threat actually induced the confession in a causative sense; all that is necessary for the defence to show is that the threat preceded the confession and that the inducement had not been removed: The State v August Toiamia (1978) N145.
    
13. When the defence objects to the admission into evidence of a record of interview, the burden of proof is on the accused on the balance of probabilities to adduce evidence as to the facts relied on in support of a claim that a confession has been obtained involuntarily. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt: The State v John Michael Awa and Others CR No 905 of 1998, 15 May 2000.
    
14. Upon hearing the voir dire, the judge may read the statement of confession in considering the credibility of conflicting evidence: R v Tovarula [1973] PNGLR 140; and in the exercise of his or her general or residual discretion: Gasika v The State [1983] PNGLR 58. The better practice, in most cases, is for the trial judge to hear the evidence of both sides on the voir dire, and then to consider, with the help of any submissions from counsel, whether some assistance might be obtained from looking at the document: Gasika v The State; The State v Balana.
    
15. Constable Kosinto Etora has been a police officer for 10 years, and stationed at Hohola Police Station for the last 8 years. He obtained a statement from the accused on 6 May 2015. The accused told him that he would give his story so Constable Etora took him to the office. He asked the accused what language he preferred and then proceeded in Pidgin in accordance with the accused’s request. Also present at the time was Police Station Commander, Ben Kua. Constable Etora gave the accused a “short caution”. He told him that he could remain silent but whatever he said would be given to the court in evidence. The accused said he understood and then told Constable Etora his story. Constable Etora typed it up. After that he printed the statement and gave it to the accused who read it. He asked the accused if he agreed with it. The accused said yes and signed the statement. The statement was taken in the name of Bobby (Andrew) Joe because that is what the accused told him his name was. Constable Etora identified the accused in court as the person who gave the statement on 6 May 2015 in the name of Bobby (Andrew) Joe. He was not involved in the apprehension of the accused and was in his office when the accused was put in the cell.
    
16. Under cross-examination, Constable Etora agreed that every other station apart from Boroko is a minor crimes and public safety station and that major crime is referred to Boroko Police Station. He agreed that after obtaining the accused’s statement he referred the matter to the Major Crimes Section at Boroko Police Station for investigation, arrest and charging by the Armed Robbery Squad. He agreed he was not the investigating or arresting officer, and that he only did the “formalities” before referring the matter. He agreed that stations outside Boroko get suspects and hold them and when investigators are ready they send them across for processing by a specialist section. The incident occurred at the Paradise Private Hospital, which is under the care of Hohola Police Station, so the accused was taken to Hohola Police Station. With this kind of incident they do the formalities before transferring. This includes the entries, the crime report, and a major incident brief to advise their management that there has been an incident in their area. He did not know what happened to the accused before he was brought to the police station as he was not involved in his apprehension. He denied that he “did a rush job” by producing the accused’s statement.
    
17. In re-examination he explained that it was the accused who told him that he wanted to give his story so he cautioned him and took his story. It is part of his duty to obtain statements. He agreed that his statement did not refer to the Police Station Commander being present at the time the statement was taken. He asked him to attend when he took the statement as someone else should always be present.
    
18. Sgt Steven Numbos is a police officer of 25 years standing, currently stationed at Macgregor Barracks as Commander of a Mobile Squad, a position he has held for the past 6 years. He was involved in the apprehension of the accused. He can’t recall the date but after lunch sometime between 1: 30 and 2pm they received a call from an informant that the accused was in a house at Gerehu Stage 2. He was wanted for an offence. They proceeded to the house and went into the yard, to a makeshift house, and that is when he saw the accused lying down with a woman. The accused tried to escape but they managed to apprehend him and take him to Hohola Police Station. Sgt Numbos was in the company of Reserve Constable Tetemah Jonah and two other policemen at the time. They travelled to Gerehu in a ten seater. From Gerehu they came straight back to Hohola. They locked the accused up in the cells at about 230 pm or 3 pm and he went back to the office at Macgregor. He was involved because it was normal police work, he has experience in the city and he knows some of “the boys” that are involved in criminal activity, so when the accused’s name “popped up they needed to find him and bring him to justice”. He identified the accused in court as the person he knows as Bobby and whom he apprehended that day.
    
19. He recalled that he apprehended the accused after lunch and not in the morning because he had a parade in the morning at the barracks. He remembered clearly that the accused was cuffed with a plastic handcuff because he had attempted to escape over the back fence. To his knowledge the accused was not blindfolded whilst in the vehicle. He was the driver and they drove from Gerehu to Hohola Police Station. He denied that they took the accused up to a hill on Moto Kai, pointed their weapons at him, and told him that he would end up in the morgue. He could not recall if the accused said anything to him. He had no further involvement after the accused’s apprehension. He had attempted to get hold of Tetemah Jonah for the purpose of the voir dire but he was attending his stepfather’s death and was not contactable via telephone.
    
20. Under cross-examination Sgt Numbos confirmed that they were in an unmarked vehicle at the time of the accused’s arrest. He was in possession of a sidearm. Other officers had rifles. Three or four officers went into the yard. There were three other cars that went with them, including two police uniform cars. He went to the back of the house. He saw the accused in a makeshift house, like a kitchen, with a fireplace, a platform to sleep, covered with canvas. The accused was there with a female. They saw the accused and wanted to apprehend him. They did not go with any warrant to enter the premises. He wasn’t worried about what was in the house. The arrest took place within about a week of the alleged robbery. He was only aware of the accused’s alleged involvement. He didn’t receive the names of any other suspects but because the information came he assisted in the apprehension of the accused. He disagreed that the accused’s legs were also tied in the car. He maintained that they went straight to Hohola Police Station. They did not go anywhere else, or up a hill to a Digicel Tower. He denied that because the matter was still fresh and they had a lack of leads that he needed to get something out of the accused. It was not his job to get things out of the accused but just to apprehend him. He is not part of the armed robbery unit. He is a Commander of a Mobile Squad, and because he was at Hohola and doing nothing when the call came in, he said he would go and do the apprehension. He denied that he had to assist the investigation by taking him out and getting him to cooperate with police. He denied that he took the accused up the hill and that he and the other policeman threatened the accused. They took the accused to Hohola and not Boroko Police Station because they took off from there. It was up to the duty officers to hand him over to the armed robbery squad. He had other things to do. He saw him go into the cell and left. The accused was safe. Hohola is a gazetted police station. As far as he was concerned he apprehended him, he did his part and went back to work. He knew it was a big case but on that day he was at Hohola Police Station when the call came in. The other policemen were discussing it, they told him about it, and he said “let’s go”. He maintained that he did not threaten the accused nor did he tell Constable Kosinto to have a statement ready.
    
21. The accused gave evidence that on 6 May 2015 between 9 and 10 am he was at his wife’s house at Gerehu Stage 2, Bullet Street. He was lying down, playing games on the phone, when he heard a dog barking. He stood up and saw police surrounding the house. He slipped over and held onto Sgt Numbos. The policemen went into the house and searched for a gun. They searched and found nothing. They got a belt and came out and tied his arms at the back and told him to lie down. They told him to get into the white unmarked ten seater. There were only two vehicles, the other was a jeep. They told him to get into the ten seater and sit on the floor. From there they got his shirt and tied it around his eyes. They took him up to Moto Kai. They told him to come down from the vehicle and all of them surrounded him. He was wearing short trousers and no shirt. They started assaulting him with a pinch iron bar and a big baseball bat. They assaulted him from his head down to his legs. They told him to tell them. He told them he didn’t know anything. They assaulted him. They told him that the story was there, they just wanted him to confirm it. At gun point they told him to tell the story or he would “go and sleep in the morgue”.
    
22. They took him out of the vehicle and told him to sit down. He was asked a number of times by his own counsel if the shirt was over his eyes for the entire time and he maintained that it was whilst they assaulted him. When he said “yes it was him”, the police said “why didn’t you say that earlier?”. They told him to remove the shirt and as they drove back he realised that they were at Moto Kai. They took him to Hohola Police Station and continued to assault him until 2pm.
    
23. At Hohola Police Station they took him to the office and told him that his story was already there and he should just say yes to every question. They did not give him any opportunity to ask questions regarding his rights. He did not agree to give the statement. He signed because everything was on the paper and they told him that if he signed he could go home. He thought that was true so he signed.
    
24. Under cross-examination he denied that he tried to escape. He said that they told him to walk to the vehicle and that they tied his legs once he was inside the vehicle. He maintained that they blindfolded him and took him to Moto Kai. He said that he told his lawyer that he was very badly assaulted from 9:30 until 2:30 pm. They did not take him to a hospital. He said that there were photos of the injuries and that the police had shown him the photos. They did not take him straight to Hohola Police Station. Constable Etora asked him if he spoke English or pidgin and he said pidgin. Etora did not warn him that he did not have to say anything but that anything he said would be written down and used in court. Apart from the question about which language to speak there were no questions by Etora. Etora told him: “The story is there, just sign”. At the time he was badly injured. They told him to say yes or no. They told him they knew everything, where he lived and could pick him up anytime. He confirmed that it was his signature on the statement. His name is Bobby Andrew Don. He did not tell Etora his name was Bobby Andrew Joe. At the time he gave his statement Sgt Numbos was out in the car park. He had never been to a police station before and did not know how police deal with suspects.
    
25. The defence submitted that the confessional statement was suspicious because in the normal course of police business it should not have been taken at Hohola Police Station but by the Armed Robbery Squad. It was a “rushed job” because it was planned. They put fear into the accused and told Kosinto to be on standby to obtain the statement.
    
26. The State submitted that the accused should not be believed. The police officers should be believed and the statement was given voluntarily and fairly. The accused was asked if he wanted to speak in pidgin and he was informed of his right to remain silent. There was no threat at the time the statement was obtained.
    
27. At the close of the voir dire, I indicated to counsel that it would assist me to view the statement in making my decision. Neither held any objection.
    
28. Having heard and observed each of the State witnesses I accept each of them as credible and reliable. I make this assessment having regard to both their demeanour when giving evidence and the content of that evidence.
    
29. In reaching my assessment of Constable Etora, I have taken into account the fact that his statement failed to refer to the presence of the Police Station Commander at the time that he took the accused’s statement and considered the weight to be given to his evidence in those circumstances.
    
30. As the Supreme Court said in Balbal v The State (2007) SC860:
    

“questions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”.

31. In considering the issue, I have also taken into account that PSC Kua was not called on the voir dire by the State. It would have been preferable for the State to do so. Nevertheless, I am satisfied that the failure by Constable Etora to refer to PSC Kua was an honest omission. He has been stationed at Hohola Police Station for the last eight years. It is clear from his evidence that whilst he has some knowledge and understanding of police procedure, he is not very experienced in the taking of statements.
    
32. Constable Etora gave his evidence in a direct and open manner. His evidence was consistent and clear and I accept him as a witness of truth. I accept that it was the accused who volunteered to tell his story. The fact that Constable Etora proceeded to take a statement in those circumstances before referring the accused to the Armed Robbery Squad is not suspicious. My finding in this regard is only strengthened having regard to the matters referred to below.
    
33. I also find Sgt Numbos to be a credible and reliable witness. His evidence was given in a straightforward manner. I have taken into account that the accused was previously known to him and that he took a leading role in his apprehension. The latter is not surprising given his position as Commander of a Mobile Squad. I also accept that his role was limited to apprehending the accused and that came about because he happened to be at Hohola Police Station on the day.
    
34. He did not deny that the accused was cuffed. I accept his evidence that the accused tried to escape, and it is hardly surprising that a suspect in an armed robbery would be hand-cuffed upon apprehension in any event. He agreed that he went to the accused’s location without a warrant. I accept his evidence that he was at Hohola Police Station and that he set off with other police from the station to apprehend the accused. It makes sense in those circumstances that the accused would be brought to Hohola Police Station in the first instance.
    
35. There is a discrepancy between his evidence and that of the accused as to the time of the apprehension. Constable Etora’s evidence on this point is unclear. It is of no consequence to my findings.
    
36. The accused was a very unimpressive witness. Having heard and observed the accused in the witness box, I am unable to accept him as a witness of truth. This is based on my assessment of his demeanour when giving evidence together with the content of that evidence. His evidence substantially differed from the objections raised on the notice of voir dire and was internally contradictory. Key parts of it were not put to the State witnesses in accordance with the rule in Browne v Dunn, including that he was assaulted at all, or with an iron bar and baseball bat, all over his body, including his head, for several hours from 9:30 am to 2:30 pm, and then again at the police station.
    
37. I do not accept that he was taken to Moto Kai. I do not accept that he was assaulted with a pinch iron bar and a baseball bat at Moto Kai from his head to his legs. I do not accept that he was threatened under gun point.
    
38. His evidence is implausible. He initially said that his hands and legs were tied in the vehicle, then that he was taken from the vehicle at the Digicel Tower and told to sit down but he said nothing about what happened to the bindings on his legs in the meantime. He initially maintained in chief that he was blindfolded whilst he was threatened with guns and throughout the assault. He did not explain how he could see the weapons, iron bar or baseball bat in those circumstances. I do not accept that he was threatened with any weapons, nor that he was assaulted all over his body with an iron bar and a baseball bat. Nor do I accept that he was taken back to Hohola and that he was continually assaulted there until 2:30 pm. Nor do I accept his assertion that Sgt Numbos was outside whilst he was giving his statement to Etora. Quite apart from the fact that it is unclear who it was who assaulted him at the station, he did not explain how he knew that Sgt Numbos was outside at the time he was giving his statement.
    
39. Furthermore, the allegations of assault were not put to Sgt Numbos or Constable Etora. There is no evidence to support the allegations which on any interpretation would have seen the accused suffer severe injuries. I don’t accept that the police took photos of him, or that they showed the photos to him.
    
40. Nor do I accept that he was told that he could go home if he signed the statement. Again, this was not put to either Constable Etora or Sergeant Numbos.
    
41. I have taken into account that Tetemah Jonah was not produced by the State on the voir dire. The notice of voir dire was filed late, however, and I accept the evidence of Sergeant Numbos, which was not challenged, that he was not able to reach him via telephone.
    
42. I have also taken into account that the accused was not fully and properly informed of his rights in accordance with s 42(2) of the Constitution. The “short caution” given is reflected in the statement, and I accept that its terms were made clear to the accused. There was no evidence from Sgt Numbos, however, that the accused was informed upon his arrest of the reasons for his arrest. Nor does it appear that Constable Etora did this before the accused gave his statement. Nor was the accused informed by Constable Etora that he was permitted to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice. Nor was he reminded of his right to be given adequate opportunity to give instructions to a lawyer of his choice.
    
43. The absence of the full and proper caution is a matter to be taken into account when determining whether a statement is voluntary in the sense of it being made in the exercise of a free choice to speak or be silent. A confession may be voluntary, however, even though the confessor has not been told either expressly or impliedly that he or she has the right to remain silent. It is compulsion or pressure that offends against the common law, not necessarily the absence of a caution: R v Ginitu Ileandi [1967 – 1968] PNGLR 496. Regard may be had to the surrounding circumstances to ascertain whether the accused spoke because of some importuning or threat or whether it was because he or she chose to do so: The State v Kwambol Embogol (1977) N91. Despite improprieties or illegalities, despite the lack of caution, confessional evidence may be admitted if it is established to have given voluntarily: R v Suk Ula [1975] PNGLR 123.
    
44. Here the accused was warned of his right to remain silent. I accept Constable Etora’s evidence that the accused volunteered to tell him his story and that he asked the accused which language he preferred to speak in, a matter which the accused confirmed himself in evidence. I also accept that he gave what he referred to as a “short caution” in the terms set out in the statement, namely that he could remain silent if he wished but that whatever he said would be taken down and given in evidence. Further, that he asked the accused if he understood and the accused said that he did before giving his statement. And that he typed the statement as the accused spoke and gave the accused a typed draft before the accused read it, indicated that he agreed with it and ultimately signed it.
    
45. In reaching this conclusion I have considered that according to Constable Etora the accused volunteered to give him his story and whether this might have been consistent with the accused’s claim that he was beaten and threatened by Sgt Numbos and other officers and therefore volunteered to do so out of fear, but the State’s evidence has excluded the possibility that he was threatened and/or assaulted before or whilst at Hohola Police Station. The accused told Constable Etora that he would give a statement of his own volition. There was no coordinated plan by Sgt Numbos with Constable Etora to have a statement ready and waiting for the accused to sign.
    
46. Whilst not determinative, the confessional statement itself supports my view. On the face of the statement, the accused had no prior knowledge of the offence and played a limited role in the alleged offence. That seems less likely if the statement had been prepared independently of the accused, ahead of time, and following hours of intimidation and beatings. Or in other words, why would the police go to such lengths to intimidate the accused, taking him up a hill, threatening him with weapons and death, and relentlessly beating him for hours with iron bars and baseball bats, only to have him sign a statement which on the face of it minimises his role?
    
47. I have also considered whether the fact that the statement is in the name of Bobby Andrew Joe instead of Bobby Andrew John supports the defence case that the statement was not the voluntary statement of the accused. Constable Etora’s evidence, which I accept, was that it was the accused who provided him with the name Bobby Andrew Joe. Constable Etora was not challenged about this in cross-examination.
    
48. Accordingly, I am satisfied beyond reasonable doubt that the confessional statement was given by the accused voluntarily. The statement was made in the exercise of the accused’s free choice. He did not speak because he was overborne. His statement was not the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure. Nor was there any inducement held out by a person in authority, whether some threat or fear of prejudice, or promise or hope of advantage. On the evidence s 28 of the Evidence Act does not apply.
    
49. The confessional statement is admissible.
    
50. It is also well established, however, that a court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness lies on the accused. In exercising its discretion, the court must weigh its disapproval of improper police conduct against the public interest in seeing that all relevant evidence for and against the accused is before the court. As above, failure to comply with the provision of s 42 (2) of the Constitution, for that reason alone does not render subsequent admissions by an accused person necessarily inadmissible. However, the court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s 57 of the Constitution to exclude the admission: Constitutional Reference No1 of 1977 [1977] PNGLR 295.
    
51. The discretion as to whether the court should admit or reject a confession is, of course, to be exercised judicially. It is a question of forming “a judgment upon the propriety of the means by which the statement was obtained reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused”: McDermott v The King (1948) 76 CLR 501 at 514 (Dixon J). The Court should consider the nature, seriousness and extent of improprieties and breaches of the constitutional rights and then decide whether in all of the circumstances it would be unfair to allow the confession to be adduced into evidence: R v Skelly [1965 – 1966] PNGLR 105 at 107. Regard should also be had to such factors as the age, education, sophistication, intelligence and background of the accused: The State v Kwambol Embogol (1977) N91.
    
52. Having regard to all the circumstances in this case, I am satisfied that it is fair to admit the statement against the accused. It is clear that despite the failure to inform the accused of the reason for his arrest he was aware of the nature of the allegation. Whilst he was not informed of his right to communicate with a lawyer, or anyone else, it was he who volunteered to give a statement, and he did so in the language of his choice. There was no persistent questioning by the investigator, instead it was the accused who told his story, which was freely given after he was reminded of his right to remain silent, which he understood. The statement was read back to the accused, and he agreed with it before signing.
    
53. Finally, as outlined above in Gasika, a trial judge may refuse to admit an admissible confessional statement if its probative value is outweighed by the danger of unfair prejudice to the accused. At common law the discretion should be exercised where the evidence “would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value’: R v Christie [1914] UKLawRpAC 20; [1914] AC 545, 559 (Lord Moulton).
    
54. In this case the statement is highly probative to the central fact in issue in this case, namely the participation of the accused in the armed robbery. The fact that it contains admissions by the accused in relation to this very issue does not render the statement unfairly prejudicial against him, but does demonstrate the high evidential value of the statement. It is in the interests of justice that the statement be admitted to be considered together with the other relevant evidence.
    
55. The confessional statement was admitted, Exhibit P1-A and P1-B, Pidgin original and English translation respectively. It is set out below in full (emphasis mine):
    

Other Evidence

56. Following the admission of the confessional statement, the following statements were admitted by consent.
    
57. The first of these is the statement of Richard Sios, the complainant, Exhibit P2. It was admitted with the consent of the accused pursuant to s 102 of the District Court Act, 1963, Chapter 40, which provides:
    

102 STATEMENTS OF WITNESSES DEAD, ETC.

Where a person has been committed for trial or sentence for an offence all statements tendered in evidence to the Magistrate constituting the Court may, with the consent of the National Court, be taken without further proof as evidence on the trial, whether for that offence or for any other offence arising out of the transaction or set of circumstances as that offence on proof–

(a) that the witness who made a statement is–

(i) dead or insane; or

(ii) so ill as not to be able to travel; or

(iii) kept out of the way by means of the procurement of the accused or on his behalf; or

(iv) a person registered under the Medical Registration Act 1980; or

(b) either by a certificate purporting to be signed by the Court or by one of the Magistrates to whom the statement was tendered, or by the oath of a credible witness–that the statement was served on the accused or his legal representative. (My underlining)

58. According to the medical certificate tendered in support of the application, Mr Sios died on 23 February 2020. Whilst there was no affidavit from Dr Seth Fose, the pathologist who issued the certificate, no objection was taken to reliance on the certificate and it is not in dispute either that Mr Sios has passed away, or that his statement should be admitted. Here I note that the statement of Mr Sios formed part of the depositions upon which the magistrate relied in committing the accused for trial.
    
59. In his statement Richard Sios says that on Friday, 1 May 2015 at around 8:29 am he was at the Paradise Private Hospital preparing to do the bank run for the week’s taking. His wife and personal assistant, Joyce Sagati, packed the cheques and the cash payments for the weeks taking in a bag and gave it to him. He walked out from the hospital using the back door, intending to drive out the back gate. Ms Sagati followed him. When he opened the back door three men were standing right at the door and were armed with factory made pistols. One of the men who was standing at the door pointed a pistol at him and said: “Yu corporate (sic) wantaim me na money bag kam”. The man dragged Mr Sios towards him, pulled the money bag from him, and passed it to the man standing beside him. In the process the first man put his hand into Mr Sios’ pocket and removed his phone and pistol. The men told Mr Sios not to move and to keep silent. He did as he was told. They got into a waiting vehicle which was parked outside the back entrance gate and drove towards Angau Drive. He got into his vehicle and drove after them before losing sight of them and driving to Hohola Police Station where he reported the matter.
    
60. Joyce Sagati’s statement was also tendered by consent, Exhibits P3 and P4. In it she confirms that on 1 May 2015 at about 8:24 am she accompanied Mr Sios to the back door of the hospital. When Mr Sios opened the back door, two men with guns pointed their guns at his head. They immediately started shouting for the bag and the money. She moved back as they pulled him out to the car park. At the same time they took his phone and his gun and told him to cooperate. The bag contained cash and cheques to the total value of K118,020.70.
    
61. An affidavit by Paulus Chuka was also tendered by consent, Exhibit P5. On Friday 1 May 2015 between 8 am and 9 am he went to his father’s home along Bisini Parade to pick up his tool box to do some work on his sister in law’s vehicle at Gerehu. Whilst there he had a shower. He then received a phone call from the accused who asked him where he was. He told the accused, who said that he was coming over. He got changed and came out of the house. Bobby walked into the yard with Joe Kapinias also known as “Jogens” from Rabaula and Martin from Central. When they saw him they told him to hurry up and distribute the money amongst them quickly. He saw some cheques and cheque books and some envelopes in the bag. As they were distributing the money he heard them say that they should leave some money for the driver. After they distributed the money he was given K2300 as payment for using the house. They all walked out of the house, got on a taxi and left. He felt uneasy and got a cab and went to Gerehu Stage 2, where he met Martin. The discussions with Martin are hearsay. A week later he was picked up and taken to the Armed Robbery Squad Office where he was questioned and later gave his story to police. It is clear when this evidence is taken together with the confessional statement of the accused that the person referred to in the statement as “Bobby” is the accused.
    
62. At the direction of Detective Sergeant Silas Detective Sergeant Aaron Silas, the officer in charge of the Armed Robbery Squad, Boroko Police Station an identification parade was conducted on 24 September 2015 during which a security guard purportedly identified the accused as the person who held him at gunpoint at the rear gate of the hospital whilst two other persons held up Richard Sios inside the hospital area. Statements from police officers Titus Bayagu, Martha Maraga who conducted the parade and Samuel Koy, Crime Scene Investigator, who photographed it were also tendered by consent. The evidence, however, is of no probative value. The security guard himself was not called nor is there any statement from him as to the events of that day, or as to his participation in any identification parade. As such there is no evidence from the witness identifying the accused as a participant in the alleged offence. The statements from the officers that a security guard identified the accused for that purpose are, in the circumstances, simply hearsay.
    

DEFENCE CASE

63. The accused declined to give evidence. That is his Constitutional right and I draw no adverse inference from that decision.
    

SUBMISSIONS

64. The defence submitted that the issue in this case is one of participation, and that the only evidence of participation comes from the accused’s own confessional statement. It says that the accused was at his wife’s home when two men came and asked him for fuel money. There is no evidence before the court of any preplanning on the part of the accused with respect to the commission of the offence and the only conversation recorded in his confessional statement is about fuel. The accused says that they then drove to the Paradise Hospital where Martin and Jokens held up the security guard and that they told the accused to stand at the gate whilst they went in. They went inside and conducted the robbery and came out and told the accused to get into the vehicle. It all happened very quickly. There is no evidence that the other two men informed the accused beforehand that there was going to be a robbery. Mere presence does not infer wilful participation. The only evidence of any participation on the part of the accused is his receipt of K2500. The Court may convict on the alternative charge of receiving stolen property which the accused concedes has been made out in his confessional statement and in the affidavit of Paul Chuka.
    
65. The State submits the accused was present with the others and went up to the gate. Mr Sios says there were three men who were armed and Chuka confirms that the same men shared the money taken at his house and identifies them by their names.
    

ARMED ROBBERY

66. Section 386(1) of the Criminal Code creates 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 to be sentenced to death.”

67. Robbery is defined in s. 384 of the Criminal Code in the following terms (emphasis added):
    

“A person who steals any thing, 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.”

68. Robbery is a hybrid offence. It combines both stealing and assault. To establish the offence the State must prove beyond reasonable doubt the following elements, such that the accused:
    
    1. steals
    2. any thing; and
    100. at, immediately before or immediately after, the time of stealing it;
    1. uses or threatens to use actual violence;
    2. to any person or property;
    4. in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen.
       

George Ikalom & Anor v The State (2019) SC1888.

69. “Stealing” is relevantly defined in s. 365 of the Criminal Code for our purposes in the following terms (emphasis added):
    

“(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent–

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

(5) ...”

70. Thus to establish the offence of robbery the State must prove that an accused stole the property, such that he or she:
    
    1. fraudulently;
    2. took the thing, or converted it to his own use or the use of any other person; and
    100. actually moved or otherwise dealt with the thing by some physical act.
         
71. “Fraudulently” means with intent to permanently deprive the owner of the thing, or with any of the other states of mind prescribed by s. 365(4) of the Criminal Code : Ikalom v The State (2019) SC1888 at [17]. See also The State v Boria Hanaoi & Ors (2007) N4012.
    
72. Whether or not there is an intention to permanently deprive the owner of the property taken is a question of fact and may be inferred from the circumstances in which the property was taken, and from the conduct of the accused before, at the time of, or after the taking: Ikalom (supra) at [23].
    
73. The State must also prove that the violence, or threat of actual violence, was used at or immediately prior to the stealing by the accused with the intention or in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen.
    

SECTION 7

74. The State relies on s. 7 (principal offenders) of the Criminal Code to establish the offence of armed robbery against the accused. It provides:
    

“(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

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

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

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

75. Pursuant to s. 7 of the Criminal Code criminal responsibility is extended to a person who is a party to an offence. Section 7(1)(a) to (d) deems to be guilty of an offence those persons who actually do the punishable act or omission, who do or omit to do any act for the purpose of enabling or aiding another person to commit the offence, who aid another in committing the offence, or who counsel or procure another to do it. In some cases more than one subsection of s. 7 may be relevant.
    
76. The State relies on 7(1)(a) and 7(1)(c) of the Criminal Code.
    
77. As above, s 7(1)(a) provides that every person who actually does the act or makes the omission that constitutes the offence is deemed to have taken part in committing the offence.
    
78. For the purposes of s 7(1)(c), aiding, the State must first establish by evidence that is admissible against the accused that a crime has been committed: R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.
    
79. The State must also establish for the purposes of s. 7(1)(c) that the accused knew the essential facts constituting or making up the offence that is being committed or about to be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula (supra).
    
80. It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534. To aid means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59.
    
81. In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.
    
82. Mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(1)(c) of the Criminal Code: Tovarula. In some cases, however, an accused may assist or encourage the commission of a crime by being present. For example, by providing moral support to the primary offender or demonstrating a willingness to assist if required. In other words, presence and wilful encouragement of the commission of the offence will suffice: Tovarula. See also Agiru Aieni v Paul T Tohian [1978] PNGLR 37; Wani v The State [1979] PNGLR 593; Vaii Rocky Maury v The State (2001) SC668.
    
83. It is not necessary, however, that the presence be a strict actual and immediate presence provided that the presence was and remained up to the commission of the offence pursuant to a common design, for example by keeping a lookout, or to aid the escape of the principal offender: Tovarula (supra); Charles Andrew Epei (2019) N7845.
    
84. As explained in the following oft cited passage from the 1^st ed. of Russell on Crime, approved in R. v. Howell [1839] EngR 970; (1839) 9 Car. & P. 437; 173 ER. 901, at p. 907, reproduced in Tovarula:
    

“In order to render a person a principal in the second degree, or an aider and abettor, he must be present aiding and abetting at the fact, or ready to afford assistance, if necessary; but the presence need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passes. So that, if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed, in the eye of the law, present at it; for it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to ensure the success of their common enterprize.”

85. In summary, to establish liability for the purposes of s7(1)(c) the State must establish the offence was committed, that the accused knew the essential facts constituting or making up the offence that was being committed or about to be committed, including where relevant the state of mind of the principal offender, and that he acted with intention to aid him, and did aid him: Turan, Tovarula, Wendo (supra).
    
86. If a person wishes to withdraw his involvement in the commission of an offence he must communicate that fact to his or her co-accused and take action to undo the effect of the previous encouragement or participation: Imiyo Wamela v The State [1982] PNGLR 269.
    

CIRCUMSTANTIAL CASE

87. I note here that the evidence as to the accused’s participation in the alleged offence is circumstantial. The principles governing such cases are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):
    

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ... ”.

88. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra); see also Baden-Clay at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [47]^[1]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
    

CONSIDERATION

89. There is no dispute that monies were stolen from Richard Sios with threats of actual violence, at gun point, by men in the company of one another, at the Paradise Private Hospital on Friday, 1 May 2015 at about 8:30 am. The only issue is the participation of the accused in the offence.
    
90. Mr Sios’ statement was tendered by consent pursuant to s.102 of the District Court Act. Whilst it is not necessary to warn myself before relying on it: Andrew Mulungu v The State (2020) SC2034, I have considered what weight I should attach to it given that Mr Sios was not available to be cross-examined. The statement is of significant weight and is not disputed. The evidence is broadly consistent with the statement of the accused and primarily goes to establishing the fact of the armed robbery.
    
91. According to Mr Sios’ statement, however, three men were standing “right at the door” when he opened it. He says that they were armed with factory made “pistols” but it is not clear whether all three men were so armed, although it appears that there was more than one pistol.
    
92. According to the statement of the accused he was standing with the security guards at the gate and did not go into the car park. There are no photographs nor a map of the crime scene so it is not possible to tell what distance there is between where the accused says he was standing with the guards at the gate and the back door.
    
93. I have also considered Joy Sagati’s statement in which she says that she was behind Mr Sios when he opened the door, and that she saw two men, both of whom pointed their guns at his head. She says they immediately started shouting for the bag and the money and that she stepped back as they pulled Mr Sios out to the car park.
    
94. It is possible that Ms Sagati was not able to see beyond the door but she was not called by the State to clarify her statement. In the circumstances I will give the accused the benefit of the doubt on that point and accept his statement that the two other men went into the car park and that he remained with the security guards at the gate.
    
95. Having regard to the statements of Richard Sios, Joy Sagati and Paul Chuka, together with the admissions of the accused in his confessional statement to police, I find that:
    
    • At about 630 am on Friday 1 May 2015 the accused was at his wife’s house at Gerehu Stage 2 when three men, called Jokens, David, and Martin, came and asked him to provide them with some fuel money.
    • The accused obtained K50 from his in-law and with the men drove to Hohola and straight to a service station where they fueled the vehicle.
    • About two hours later, sometime before 830 am, the four men drove to the rear entrance of the Paradise Private Hospital.
    • In the words of the accused, once there, two of the men, Jokens and Martin, “held up” the security guards, such that they threatened them with their firearms.
    • Jokens and Martin went into the car park and to the rear door of the hospital.
    • The accused remained with the security guards at the gate.
    • At about 830 am Richard Sios walked out from the hospital using the back door. At the time he was carrying a bag containing a total in cheques and cash of K118,200.76. His wife Joy Sagati followed behind him. As he opened the door two men, Martin and Jokens, were standing at the door with factory made pistols. The men pointed their guns at Mr Sios’ head. One of the men said: “You cooperate wantaim me na money bag kam”. The same man dragged Mr Sios towards him, took the money bag, and passed it to the other man standing next to him. In the process he put his hand into Mr Sios’ pocket and took his mobile phone and pistol. After that the men told him not to move and to keep silent. Mr Sios did as he was told.
    • The two men came out from the hospital and with the accused got into the waiting car at the gate. They drove to a house in Bisini, where the monies were distributed.
      
96. The evidence establishes and I find beyond reasonable doubt that two persons stole from the complainant monies in the sum of K118,200.76, such that they took the monies from Richard Sios by means of a physical act, and that they did so fraudulently, that is with the intention to permanently deprive the owner of the monies.
    
97. I am further satisfied beyond reasonable doubt that at, immediately before and immediately after they took the monies, they threatened to use actual violence in order to obtain the monies, as well as to overcome any resistance to its being stolen. They did so, not only by being armed with firearms, but by at least one of them pointing it at the head of Mr Sios at the time they told him to give them, and then physically took, the money bag from him, and by removing his own weapon. It is clear that the two men were in the company of one another.
    
98. There is no dispute that the monies belonged to the Paradise Private Hospital. No formal documentation was produced to establish the hospital as a legal entity but it was not in contention. Furthermore, by s 365 of the Criminal Code the term “owner” includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question. It is not always essential in order to support a charge of or involving stealing to prove the name of the owner of the property or to prove the ownership of the property: Amaiu v The State [1979] PNGLR 576. The indictment in this case indicated with clearness the property referred to and the accused could not have been in any doubt or uncertainty as to what was alleged against him. Nothing turned on the issue of ownership in this case.
    
99. As above, for the purposes of s. 7(1)(c) of the Criminal Code, the State must establish beyond reasonable doubt that: (a) the principal offence of armed robbery, in the company of others was committed; (b) the accused knew that the principal offenders intended to rob the complainant whilst armed with a dangerous weapon and in the company of one another; and (c) the accused intentionally assisted or encouraged the principal offenders to commit the offence.
    
100. I am satisfied beyond reasonable doubt that the accused knew the essential facts constituting the offence that was about to be committed and that he willingly acted with intention to aid its commission. There is no other rational inference in all the circumstances.
     
101. It is clear that the three men who came to the accused’s house at 6:30 am that morning acted pursuant to a plan to conduct the armed robbery two hours later at the hospital. Two of them were the ones that physically held up the complainant and the third man was the driver of the getaway vehicle. I have considered the possibility that the three men took the accused with them for the purpose of having him stay with the guards while the robbery was taking place and that he did not know about that beforehand but in my view that is not a rational possibility. I find it implausible that the accused was with the other men for two hours from 6:30 am and did not know what was planned. I also find it implausible that the other men would take an unsuspecting person with them to an armed robbery. I find it even more implausible that after holding up the guards at gunpoint they would leave the guards with an innocent and unsuspecting person to watch over them. This was a very important role. It was essential to prevent the guards from interfering in the offence, escaping or simply raising the alarm. I note here that there is a very strong inference that the accused was himself armed in some form at the time he was standing with the guards. How could the other two men going in to the hospital expect that he would be able to stop the guards from running away or raising the alarm otherwise? At a minimum, even if the accused’s role was to simply stand there with the guards, unarmed, how could the others expect that he would do that, or not raise the alarm himself, unless he too was aware of what was going to happen and willingly participated?
     
102. I have considered the possibility that he was afraid of the other two armed men and did as they told him for that reason but there is no evidence of that and the circumstances described above have excluded any such inference as a reasonable possibility.
     
103. Furthermore, the accused’s own statement, in which he says “I do not know how much money we got” points to his willing participation. As does the fact that it was he who rang his friend Chuka, and led the two other men to his house, where the money was shared. That is not the conduct of an innocent man who has unwittingly been caught up in a serious crime.
     
104. I have also considered that the accused says in his statement that he only received K2500. In my view that was an attempt by him to minimise his role in the robbery. It is not borne out by the affidavit of Chuka which the accused relies on to show that he was simply guilty of obtaining stolen property. Chuka himself received K2300 for allowing the men just to use his house to count or distribute the monies. He does not say how much money the accused took for himself.
     
105. The State’s evidence has excluded any rational inference that the accused was an unwitting bystander who just happened to be present at the time of the offence.
     
106. In summary, I find that the accused set out upon a common design and took the part assigned to him, that is to keep watch over the guards, and was thus willingly present at the scene: Tovarula, Epai, supra. Furthermore, he intentionally aided Martin and Jokens by more than just encouragement by his intentional presence at the scene but by willingly standing watch over the guards outside the hospital gate whilst the offence was carried out inside, with a view to ensuring the success of the common enterprise. There was an intention to aid and aiding in fact.
     
107. The evidence thus establishes beyond reasonable doubt that the offence was committed; that the accused was aware of the offence that was to be committed; and that he intentionally aided in the commission of the offence. The evidence excludes any other rational inference.
     
108. Even if the accused had no prior knowledge of what was planned prior to going to the hospital, it would have become immediately apparent to him when, having driven to the rear of the hospital, the two men produced their firearms, held up the guards, told him to stay with the guards, and then went into the hospital. Events might have unfolded quickly but not so quickly that he might not have made an attempt to remove himself from the situation. He made no such attempt. Instead he stayed there and waited for Jokens and Martin to return and then got in to the vehicle with them. By remaining with the guards he was for the reasons set out above intentionally aiding the principal offenders in the commission of the offence.
     
109. In either case the accused is guilty of the offence charged beyond reasonable doubt pursuant to s 7(1)(c) of the Criminal Code. For the reasons set out above, however, the combination of circumstances leads to the inevitable conclusion that the accused was well aware of what was planned that morning, prior to his arrival at the hospital, and that he actively participated.
     
110. Finally, therefore, even though he might not have been right at the place where the actual taking of the cash took place, given his proximity to it, and the fact that he could see Mr Sios, it is reasonable to infer that Mr Sios could see him. Thus his presence, with the other men, even if not armed himself, also constituted one of the acts making up the offence, namely the threat of violence at or immediately prior to the stealing with the intention or in order to obtain the monies, as well as to overcome any resistance to its being stolen. Accordingly, I am satisfied beyond reasonable doubt that the accused is also guilty pursuant to s 7(1)(a) of the Criminal Code.
     
111. Verdict: Guilty of armed robbery, in the company of others.

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

^[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.