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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 475, 476, 612 & 613 OF 2021
THE STATE
V
ROSANG BASUK & NANURE HEU
Madang: Cannings J
2022: 12th, 13th, 14th, 17th, 19th January
CRIMINAL LAW – trial – armed robbery, Criminal Code, s 386(1), (2)(a), (b), (c) – attempted murder, Criminal Code, s304(a) – identification evidence – alibi evidence.
An armed robbery of a store was committed by at least three men. Those inside the store were threatened with violence. The store manager was wounded. His vehicle and K150,000.00 cash was stolen. The two accused were charged with two offences: count 1, armed robbery under ss 386(1), (2)(a), (b) and (c) of the Criminal Code; and count 2, attempted murder under s 304(a) of the Criminal Code. It was alleged that the first accused directly took part in the robbery and the attempt to kill the manager. It was alleged that the second accused provided assistance to those who directly committed the offences by sending text messages from his mobile phone to notify them of the opening of the store and movements of police in the vicinity of the store, and therefore was guilty of armed robbery and attempted murder under s 7 of the Criminal Code. Both accused pleaded not guilty and a trial was conducted. The store manager gave evidence and identified the first accused as being the leader of the gang who committed the robbery and attempted to kill him. As to the second accused, the police investigator gave evidence that text messages from a phone found in the vicinity of the crime scene, which provided information to recipients notifying them of the opening of the store and movements of police in the vicinity of the store, were traced to a phone number registered in his name. Both accused gave sworn evidence. The first accused relied on an alibi that he was at his village in a neighbouring province at the time of the robbery. The second accused said that his mobile phone was non-operational at the relevant time and he had lent his SIM card to another person.
Held:
(1) Re the first accused, count 1: Having considered the inherent dangers of relying on the correctness of identification to support a conviction and cautioned itself, as the tribunal of fact accordingly, the court was satisfied, having regard to the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, that the quality of the identification evidence against him was sound. As to the alibi evidence, the court was satisfied, having regard to the principles set out by the Supreme Court in John Jaminan v The State (No 2) [1983] PNGLR 318, that its quality was poor and the alibi was, in fact, false. The identification evidence, considered alone, was sufficient to sustain a conviction. The alibi evidence did not give rise to any doubt that the first accused was one of the criminals who committed the robbery. The first accused was found guilty of aggravated robbery under ss 386(1), (2)(a), (b) and (c) of the Criminal Code.
(2) Re the first accused, count 2: The medical evidence did not provide sufficient support for the allegation that there was an attempt to kill the manager. Although there was sufficient evidence to prove that the offence of unlawful grievous bodily harm had been committed, an alternative verdict was not available under s 542 or any other provision of the Code. There was no alternative charge included in the indictment. Therefore the first accused was not guilty of attempted murder or any other offence under count 2.
(3) Re the second accused, count 1: The evidence of the police investigator linking text messages to the mobile phone number of the second accused was weak and unreliable. It was not proven beyond reasonable doubt that the second accused aided or assisted those who took part in the robbery. He was found not guilty of armed robbery.
(4) Re the second accused, count 2: As it was not proven that the offence of attempted murder had been committed, he was found not guilty of count 2.
(5) In summary, the first accused is guilty of count 1 and not guilty of count 2; the second accused is not guilty of any offence.
Case Cited
The following cases are cited in the judgment:
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Boria Hanaio & Others (2007) N4980
The State v Francis Vau Kamo (2006) N2991
The State v Henry Judah Les (2005) N2950
The State v James Pah [1985] PNGLR 188
The State v Noutim Mausen [2005] PNGLR 54
The State v Wanaepe Warara [1977] PNGLR 458
Counsel
F K Popeu, for the State
N Loloma, for the Accused
19th January, 2022
1. CANNINGS J: On Thursday 26 March 2020 at Saidor, Raikos District, Madang Province, an armed robbery of a store owned by Linquan & Company Ltd was committed by at least three men. Those inside the store were threatened with violence. The store manager, Jack Guan, was attacked and wounded. His vehicle and K150,000.00 cash was stolen.
2. The two accused, Rosang Basuk and Nanure Heu, are jointly charged with two offences in connection with the incident:
3. It is alleged that the first accused directly took part in the robbery and the attempt to murder the manager. It is alleged that the second accused, who operated another store opposite the one robbed, provided assistance to those who directly committed the offences by sending text messages from his mobile phone to notify them of the opening of the store and movements of police in the vicinity of the store, and therefore is guilty of armed robbery and attempted murder under s 7 of the Criminal Code.
4. Both accused pleaded not guilty and a trial was conducted. Both accused gave sworn evidence. The first accused relied on an alibi that he was at his village in a neighbouring province at the time of the robbery. Another witness gave evidence supporting the alibi. The second accused said that his mobile phone was non-operational at the relevant time and he had lent his SIM card to another person.
5. It is not disputed that the robbery was committed at the time and date alleged and that the manager was attacked and wounded.
6. The following issues arise:
THE FIRST ACCUSED, ROSANG BASUK, COUNT 1, ARMED ROBBERY
State’s evidence
7. The State presented four pieces of identification evidence. The primary witness was the store manager Jack Guan who testified that he was in the store, which had opened at 6.30 am, when he noticed three men come in, one was a bit familiar as he is a well-known criminal from Madang town, one was wearing a camouflage army jacket, and another was wearing a white shirt. The man wearing the army jacket pointed a gun at him and he realised it was a hold up. He told his staff (he employs ten store-workers and five security guards) to go outside and he went upstairs to his room and locked himself in.
8. The three men followed him upstairs and broke open the wall of the room and came inside. He handed over K100,000.00 cash to them. He was very scared. He escaped up into the rafters but he fell down and one of the men forced him back inside his room.
9. The man wearing the army jacket pointed his gun at him and told him ‘Do not look at me’ and then asked ‘Where is the other money?’, to which he (the witness) replied there is no more, pointing out that they had already got K50,000.00 from the store downstairs in addition to the K100,000.00 from his room.
10. One of the men (not the one with the army jacket) hit him with an iron bar, injuring his head and back. Another man (not the one with the army jacket) cut him with a bushknife on his left arm.
11. They forced him downstairs and cut him twice more, on the arm and the right leg. He fell on the floor. He saw them loading store goods such as cigarettes and beer into his Toyota Landcruiser 10-seater. They pushed him out of the store and into his vehicle. The man wearing the army jacket drove the vehicle. That man seemed to be the boss of the gang. He got cross with the others for injuring him. That man said he had wanted a clean operation in which no one was injured.
12. The vehicle was driven for 20 or 30 minutes and then they left the vehicle and fled, leaving him behind, badly injured and bleeding.
13. A couple of months later the police came and asked him to go to the beach as they had arrested a suspect. He went to the beach and identified the suspect as the man wearing the army jacket during the robbery. The suspect told the police not to hurt him as he was the one who told the others ‘not to cut the Chinaman’. The suspect was referring to him (the witness). He (the witness) also told the police not to hurt the suspect.
14. During his testimony in court he identified the first accused to be the man wearing the army jacket. He reiterated that it was the man wearing the army jacket who he saw when that man pointed a gun at him in the store, when they broke into his room, when they went downstairs and pushed him into the vehicle, and when he saw that man wearing the army jacket driving the vehicle and getting cross with his companions. He saw him again at the beach when he was the suspect brought by the police.
15. The man wearing the army jacket had a mask during the robbery but it was not covering his face. He saw the face. He did not recognise the man at that stage. He was a stranger.
16. The witness maintained his identification evidence in cross-examination. It was a frightening experience and he dreams about it often. But in the course of the incident his mindset was OK. He could remember what happened. He was very angry with the men who stole from the store. He conceded that the man wearing the army jacket was unfamiliar to him. A stranger. But he remembers his face. He repeated that he was sure that the first accused was the man wearing the army jacket. He was in pain from the injuries inflicted on him but it was not big pain.
17. The second piece of identification evidence was from witness Norbert Kula. He said that he is employed by the store as a driver. He was inside the store when the robbery occurred. He saw three men, who turned out to be the robbers, come inside. One of them was wearing an army jacket. He and others inside the store were threatened. He lay on the floor as instructed. He stayed there until they drove away in the vehicle. As they drove off he lifted his head and saw that the man wearing the army jacket was the driver.
18. In cross-examination he repeated that none of the three men who he saw commit the robbery was familiar to him.
19. In response to a question from the Court, he expressly identified the first accused as the man wearing the army jacket, who he had referred to in his examination-in-chief.
20. The third piece of identification evidence was from witness Emilton Buka. He is employed by the store. He was outside the store, on the veranda, when the robbery occurred. He saw that there were three robbers. One of them, a man wearing a black shirt, pointed a pistol at him and told him to lie on the road. Another was wearing an army jacket. He saw the store manager being forced into the vehicle. He saw that the man wearing the army jacket was the driver. None of the men was wearing a mask.
21. In cross-examination he conceded that he did not recognise any of the robbers and did not get a good look at their faces; but he saw what they were wearing. One was wearing an army jacket and he was the one who drove the vehicle.
22. The fourth piece of identification evidence was in the form of a witness statement (exhibit P7) by a store security guard, Moses Konny. He states that at the time of the robbery he was outside near the road, standing with another security guard, Trevor, chewing betel nut and telling stories. They soon realised that a robbery was taking place. He heard that their boss had been taken away in the company vehicle. He and others followed on foot and found the vehicle, with the boss covered in blood, four or five kilometres away. On 4 May 2020 the police arrived at Saidor with a suspect, from Wasu. He recognised the suspect as the man who drove the company vehicle, with the boss inside. He came to know that the suspect’s name was Rosang Basuk.
Defence evidence
23. There were two pieces of alibi evidence. The first was the sworn oral testimony of the first accused, Rosang Basuk. He stated that on the day of the robbery he was in his village at Wasu. He slept in the house of his uncle, Nathan Enoko, the night before the robbery. He went to work. He was employed as a driver by the local-level government.
24. He was arrested at his village a month or so after the date of the robbery. The police came at 3.00 am, while he was sleeping. They surrounded the house and ordered the occupants to come outside. They ordered him to lie on the ground, which he did, and asked him if he was Rosang. He said yes, and the police said that they would kill him. He was then shot on the leg.
25. In cross-examination he said that he is an excavator operator and driver. He does not normally go to Saidor. He was not in Saidor on the morning of the robbery. He was at work in the Wasu area, a long way from Saidor. His village is an hour’s walk from Wasu station. He has no ID card to verify that he was employed at the time. It was burned by the police.
26. The second piece of alibi evidence was in the oral testimony of the first accused’s uncle, Nathan Enoko. He said that he presently resides at Panutibun Island, Madang District. His permanent residence is at Wasu. On the day of the robbery, he was at his house at Wasu with his wife and family. He was engaged in catching fish for sale at the market. The first accused, Rosang, was staying with them at the time. Rosang went to work on the day of the robbery.
27. He (the witness) was at his house when the police came to arrest Rosang. It was the middle of the night. The police surrounded the house and woke everyone up. He and other occupants including Rosang went outside. Rosang gave himself up and the police told him to lie on the ground. Rosang did as he was told and the police pointed guns at him. Two police tried to fire shots at Rosang but their guns did not fire. A third policeman fired from his weapon into Rosang’s leg. He heard Rosang call out in pain.
28. In cross-examination he said that his house in the village is a bit far from Wasu station. Rosang came to live with his (the witness’s) family at Wasu in 2020. He has another house at Wasu station. It was that house to which the police came to arrest Rosang. He (the witness) has a second wife, from Panutibun Island, and that is how he came to be living there now. He also has family there. On the morning of the robbery, Rosang went to work at 8.00 am. He was employed maintaining roads in the LLG area. Rosang is married to a lady from East Sepik Province.
29. In re-examination the witness clarified that he has two houses, one at Wasu station and the other at the village. At the time of Rosang’s arrest, they were at the village house.
Assessment of identification evidence
30. Defence counsel, Mr Loloma, submitted that the identification evidence was unreliable because:
31. I have considered those submissions in light of the competing submissions of the prosecutor, Mr Popeu. I have also considered the principles on identification evidence in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698, which I summarised in The State v Noutim Mausen [2005] PNGLR 54 and The State v Francis Vau Kamo (2006) N2991.
32. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.
33. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
34. Having considered the above matters, I record the following relevant considerations:
(a) The primary State witness, Jack Guan, gave clear and concise evidence. His demeanour was sound. It was neither proven nor suggested that he had any motive for giving false evidence. He is assessed as an honest witnesses.
(b) I reject the defence submission that Mr Guan’s evidence was contradictory. He satisfactorily explained that, although he was recalling an incident in which at that time the man wearing the army jacket was unfamiliar to him and he had his face partially covered by a mask, the face was substantially uncovered and he clearly saw his face on more than one occasion during the course of the robbery. I accept Mr Guan’s evidence that he could see the face of the man wearing the army jacket in the store when that man pointed a gun at him, and in the upstairs room when that man again pointed the gun at him and told him not to look at him and asked where the rest of the money was. The same man, the witness said, was the boss of the gang and the driver of the vehicle.
(c) I reject the defence argument that Mr Guan’s evidence did not prove beyond reasonable doubt that the first accused was involved in the robbery. That argument is irrelevant. It is not a proper test to apply to any piece of evidence. The proper test is to assess whether the whole of the evidence presented by the State proves beyond reasonable doubt that the accused was involved in the robbery. That assessment cannot be made until all of the evidence of the State and all of the evidence of the defence is considered.
(d) I reject the defence submission that the evidence of Norbert Kula and Emilton Buka is of no value. Though Norbert Kula was forced to lie down when the robbery took place, he had a chance to see who drove the getaway vehicle. It was the man wearing the army jacket who he had seen come into the store just before the robbery and it was the same man who he saw driving the vehicle. He identified that man, in the courtroom, as the first accused. This clearly corroborates the evidence of the store manager. Though Emilton Buka did not make a positive identification of the first accused in the courtroom, his evidence is still relevant because he saw that the man wearing the army jacket was the driver of the getaway vehicle. This also corroborates the evidence of the store manager. The written statement by Moses Kenny also corroborates that evidence as, when the police brought the suspect from Wasu, he recognised him as the man who drove the getaway vehicle.
(e) I reject the defence submission that Mr Guan is in no position to identify anyone involved in the robbery as he was traumatised and in pain. There is no doubt that Mr Guan was frightened and feared for his life but he explained that the pain he incurred was not big pain and that he could remember the face of the man wearing the army jacket. That man was the leader of the gang. He saw him during the robbery and identified him to the police a month or so later when they brought in a suspect.
35. In light of the above, I have concluded that the evidence of Jack Guan is honest, accurate and reliable and the evidence of other State witnesses is consistent with his evidence and corroborates it. The identification evidence is of high quality.
Assessment of alibi evidence
36. Mr Loloma submitted that the first accused could not have been involved in the robbery due to the evidence that he was at Wasu and went to work on the morning of the robbery.
37. I have considered that submission in light of the competing submission of the State. I have also considered the principles on alibi evidence in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318, which I summarised in The State v Noutim Mausen [2005] PNGLR 54 and The State v Francis Vau Kamo (2006) N2991. I remind myself that if an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
38. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.
39. Having considered the above matters, I record the following relevant considerations:
(a) A notice of alibi was provided to the State. However, it contradicted the evidence of Nathan Enoko as the notice put the accused at the village, whereas the evidence of Mr Enoko was that the accused was at his house at Wasu station (which according to the first accused, is an hour’s walk away).
(b) The evidence of the first accused and Mr Enoko was inconsistent. The first accused said that he was in the village on the day of the robbery and went to work. Mr Enoko said that he was with him at Wasu station.
(c) The first accused and Mr Enoko gave evidence that the first accused was shot by police when they came to arrest him. No notice was given to the State of the intention to introduce this evidence.
(d) The evidence that the first accused had a job and was engaged in a road maintenance project at the time, and that he was a driver and an excavator operator was uncorroborated. If only someone had given evidence from the Wasu LLG that yes, the first accused was employed and/or that yes he was at work on that day, some reasonable doubt would have been created as to the identification evidence. The accused’s explanation for not being able to provide proof that he had a driver or operator licence – that they were destroyed when the police burned down his house – was uncorroborated. An accused who gives an alibi but then provides no back-up evidence and gives no explanation for there being an absence of corroboration when it would reasonably be expected to be available, leaves himself exposed to the natural inference that the alibi is a fabrication.
(e) Both alibi witnesses were unimpressive. Their demeanour was poor. I assess each as not being a witness of truth.
40. In light of the above, I have concluded that the alibi evidence was not honest or credible. The alibi evidence is poor and I determine that, in fact, it is a false alibi.
Weighing the alibi evidence against the identification evidence
41. Having assessed the two bodies of evidence, I am of the view that the identification evidence, considered alone, is sufficient to sustain a conviction. The alibi evidence does not give rise to any doubt that the accused was one of the men who committed the robbery.
Has the State proven the elements of the offence of armed robbery against the first accused?
42. The State has proven beyond reasonable doubt that the accused was a member of the gang that committed the robbery at Saidor. As stated in The State v Boria Hanaio & Others (2007) N4980, the offence of robbery, created by Criminal Code, s 386(1), consists of four elements:
43. The offence of aggravated robbery is committed, according to Criminal Code, s 386(2), when the robber:
44. All elements of the offence of robbery have been proven beyond reasonable doubt. The State has also proven that the first accused was armed and that he was in company of other persons and that a person was wounded. He is therefore guilty of aggravated robbery under count 1 on the indictment.
THE FIRST ACCUSED, ROSANG BASUK, COUNT 2, ATTEMPTED MURDER
45. There is evidence of Mr Guan being attacked on multiple occasions and evidence of the injuries he sustained. However, the medical evidence does not provide sufficient support for the allegation that there was an attempt to kill the manager, which is an element of the offence of attempted murder under s 304(a) of the Code.
46. Mr Popeu submitted that if the court reached the stage where it was not satisfied that attempted murder had been made out, an alternative verdict for a lesser offence such as doing unlawful grievous bodily harm with intent (s 315) or without intent (under s 319) could be entered under s 542 (charge involving specific result) of the Code. Section 542 states:
(1) On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.
(2) On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.
47. The case relied on in support of that proposition was The State v Wanaepe Warara [1977] PNGLR 458, in which Prentice DCJ expressed the obiter dictum view that grievous bodily harm with intent was available as an alternative verdict in cases where the elements of attempted murder were not proven. That approach was, however, disapproved of by the Supreme Court in The State v James Pah [1985] PNGLR 188, which has since been followed by the National Court (Lay J) in The State v Henry Judah Les (2005) N2950.
48. I agree that in the present case there is sufficient evidence to prove that the offence of unlawfully doing grievous bodily harm was committed. However, I apply the Supreme Court decision in Pah. Such an alternative verdict is not available under s 542 or any other provision of the Code. (The lesson for the State is that in any case of attempted murder, an alternative charge should be included on the indictment.)
49. There was no alternative charge included in the indictment. Therefore the first accused is not guilty of attempted murder or any other offence under count 2.
THE SECOND ACCUSED, NANURE HEU, COUNT 1, ARMED ROBBERY
50. The evidence against the second accused is in the testimony of the police investigator, Snr Const Elimash Bonnie, who has linked certain text messages to the mobile phone number of the second accused. This evidence was weak and unreliable as neither the phone from which the messages was allegedly sent nor the text messages were in evidence. Furthermore there was no evidence from the State to contradict the second accused’s evidence that his phone was non-operational and he had lent his SIM card to another person, Jude.
51. I find that it has not been proven beyond reasonable doubt that the second accused aided or assisted those who took part in the robbery. He is not guilty of armed robbery.
THE SECOND ACCUSED, NANURE HEU, COUNT 2, ATTEMPTED MURDER
52. It has not been proven that any offence of attempted murder was committed. Therefore the second accused cannot be guilty of such an offence. He must be acquitted of this charge under count 2.
VERDICT
Verdict accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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