SC2302

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 31 OF 2017

SAMSON BANASO

V

THE STATE

Waigani: Kariko, Berrigan and Gora, JJ
2022: 24th February and 17th October

CRIMINAL LAW – APPEAL AGAINST CONVICTION – Principles applying – Grounds of appeal made out but no miscarriage of justice – s23(2), Criminal Code – Appeal dismissed. 
 
CRIMINAL LAW – Conspiracy to commit an offence – s 515(a), Criminal Code – Elements – Appellant joined the conspiracy after planned meetings – Agreement to participate made with only one of the conspirators - Whether liable.

CRIMINAL LAW – Parties to offences – Aiding and abetting - s 7(1)(b)&(c), Criminal Code – Principles applying – Liability – Proof of.

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Principles applying – Whether sentence manifestly excessive – Error in findings regarding appellant’s culpability - Appeal upheld. 

The appellant was convicted with four others of conspiracy to steal and stealing K5.96m belonging to Maybank Ltd. All were sentenced to the maximum of seven years imprisonment for conspiracy. Two ringleaders were sentenced to 25 years for stealing. The appellant was sentenced with the others to 20 years of imprisonment for stealing, to be served concurrently. The appellant’s four co-accused were employed by security firm G4S. Pursuant to a plan devised over several months, Paul Steven, coordinating events from the G4S control room, directed three co-accused to collect an armoured vehicle containing the cash from base. The cash was intended for deposit at the Bank of Papua New Guinea in downtown Port Moresby. Pursuant to the plan another accomplice drove a bus between the armoured vehicle and its escort vehicle enroute to the bank and feigned some mechanical fault blocking the road. This allowed the armoured vehicle to drive away to a location where the accused inside transferred monies to another vehicle before some of them were locked inside the armoured vehicle to make it look like they had been robbed.  The appellant admitted that on the morning of the offence Steven told him that his boys planned to hold up one of the G4S armoured vehicles and asked him to help, in return for which he would receive K10,000. He did as instructed and later assisted with transportation of the cash. It was not established that he was involved in any prior planning of the offence. The appellant appealed against conviction on the basis that the trial judge erred in finding he was a member of the conspiracy, and a party to the stealing, and that his sentence was manifestly excessive given his role.  

Held:

(1)	To succeed on an appeal against conviction an appellant must by virtue of s.23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

(2)	The trial judge expressly found that the appellant participated in the planning meetings with others, but that is not borne out by the evidence and to that extent the conviction on the conspiracy charge which was based on this finding was in error.

(3)	Pursuant to s 6(1) of the Supreme Court Act the Supreme Court has the power to draw its own inferences from undisputed facts or facts established by the trial judge’s findings, allowing for the trial judge’s advantage in evaluating conflicting testimony and the credibility of witnesses: Allan Oa Koroka v The State [1988-89] PNGLR 131; Rimbink Pato v Umbu Pupu [1986] PNGLR 310; Makalminja v The State (2004) SC726. 

(4)	To establish the offence of conspiracy under s 515(a) of the Criminal Code, the State is required to prove beyond reasonable doubt that: 

(a)	there was an agreement between two or more persons to commit a crime;
(b)	the accused agreed with one or more of the alleged conspirators that the crime should be carried out; and
(c)	at the time he or she agreed, they intended that the crime should be carried out.

(5)	Conspirators may join in the conspiracy at various times according to their role and level of involvement.  Any one of them may not know all the other parties, but only that there are other parties; and any one may not know the full extent of the scheme to which he attaches himself; but each alleged conspirator must know that there is in existence a scheme which goes beyond the illegal acts which he agrees to do and must attach himself to that scheme: R v Griffiths [1966] 1 QB 589; The State v Iori Veraga (2005) N2849.   

(6)	While the appellant may not have participated in the planning meetings he subsequently agreed with one of the conspirators to participate in the planned stealing. 

(7)	To establish liability pursuant to s. 7(1)(b) of the Criminal Code the State must establish beyond reasonable doubt that: (a) the offence was committed; (b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the accused did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist.  

(8)	The appellant knew that money was to be stolen from an armoured car and did a number of acts for the purpose of, or with the intention, of enabling others to commit the offence. He is therefore liable by virtue of s 7(1)(b) of the Criminal Code, regardless of whether or not those acts assisted.

(9)	To establish liability pursuant to s 7(1)(c) of the Criminal Code the State must establish beyond reasonable doubt that: a) the offence was committed; b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the accused intentionally aided (assisted or encouraged) that person to commit the offence.

(10)	The appellant intentionally aided the persons who committed the offence for the purpose of s 7(1)(c). He followed the armoured vehicle as instructed, acted as an extra set of eyes for the perpetrators, and stood ready to take further instructions. 

(11)	There was no miscarriage of justice and the appeal against conviction is dismissed.

(12)	The error in the trial judge’s findings in regard to the appellant’s culpability resulted in the sentences being manifestly excessive. 

(13)	Appeal against sentence is upheld. 

Cases Cited:

Papua New Guinean Cases
Lati v The State (2015) SC1413
John Beng v The State [1977] PNGLR 115
Rolf Schubert v The State [1979] PNGLR 66
Ombusu v The State [1996] PNGLR 335
Hariki v The State (2007) SC1320
Paul Guli & Kimin Gogumi v The State (2022) SC2272 
The State v Iori Veraga (2005) N2849
Roland Tom v State (2019) SC1833
The State v Tanedo [1975] PNGLR 395
State v Joseph Wai (2020) N8182
Hagena v State (2017) SC1659
Emos v State (2017) SC1658
The State v Nataembo Wanu [1977] PNGLR 152
The State v Titeva Fineko [1978] PNGLR 262
The State v Amoko – Amoko [1981] PNGLR 373
The State v Francis Laumadava [1994] PNGLR 291
Private Nebare Dege v. The State (2009) SC1308
The State v. Ben Noel (2002) N2253
The State v Runny Dau (2022) N9253
Towingo v State (2008) SC983
Allan Oa Koroka v The State [1988-89] PNGLR 131
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Makalminja v The State (2004) SC726 
R v Sapulo Masuve (1973) N732
Omowo and Yirihim v The State [1976] PNGLR 188
John Badi Woli & Pengas Rakam [1979] PNGLR 593
Erebebe v State (2013) SC1228 
Imiyo Wamela v The State [1982] PNGLR 269 
State v Kissip (2020) N8184
R v Tovarula [1973] PNGLR 140
S v Turan (1952) N211 
R v Wendo [1963] PNGLR 217 
Karani and Aimondi v The State [1997] SC540 
Agiru Aieni v Paul T Tohian [1978] PNGLR 37
Wani v The State [1979] PNGLR 593
Vaii Rocky Maury v The State (2001) SC668
William Norris v The State [1979] PNGLR 605
Gimble v The State [1988-89] PNGLR 271
Sanawi v The State (2010) SC1076
David Kaya and Philip Kuman v The State (2020) SC2026

Overseas Cases

Board of Trade v Owen [1957] AC 602
R v Jones [1832] EngR 870; (1832) 110 ER 485  
R v Aspinall (1876) 2 Qu D 48
R v Rogerson (1992) 174 CLR 268  
R v Thomson (1965) 50 Cr App R 1
R v Gudgeon (1995) 133 ALR 379
Ahern v R [1988] 165 CLR 87
Tripodi v The Queen (1961) 104 CLR 1
R v Masters (1992) 26 NSWLR 450 
R v Gill and Henry (1818) 2 B and Ald 204  
R v Griffiths [1966] 1 QB 589
R v Anderson [1986] AC 27 HL 
R v Siracusa (1990) 90 Cr App R 340
Rolls v R; Sleiman v R (2011) 34 VR 80
R v Meyrick and Ribuffi [1929] Cr. App. Rep. 94 
Gerakiteys v The Queen (1984) 153 CLR 317
Kalajzich and Orrock (1989) 39 A Crim R 415
Slatterie v Pooley (1840) 151 ER 579
R v Beck [1990] 1 Qd R 30 
R v Wyles, ex parte Attorney-General [1977] Qd R 169 
Warren & Ireland v The Queen [1987] WAR 314
R v Webb; Ex parte A-G [1990] 2 Qd R 274
L v Western Australia [2016] WASCA 101
R v Quagliata [2019] QCA 45 
Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426
R v Oberbillig [1989] 1 Qd R 342 
R v Adams [1998] QCA 64 
Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684
R v Lopuszynski [1971] QWN 33
Borg v R [1972] WAR 194  
Coney (1882) 8 QBD 534  
R v Russell [1933] VR 59
R v Sherrington & Kuchler [2001] QCA 105
R v Jeffrey [1997] QCA 460  
Lynch v DPP for Northern Ireland [1975] AC 653
National Coal Board v. Gamble [1959] 1 Q.B. 11
R v Beck [1990] 1 Qd R 30
R v Bainbridge [1960] 1 QB 129 
R v Schriek [1997] 2 NZLR 139 
R v Brett Anthony Cook & Ors [1994] QCA 227
R v Taylor [2021] QCA 15 
Larkins v Police HC 282 [1987] 
Mario Postiglione v The Queen [1997] HCA 26;  (1997) 189 CLR 295

Legislation Cited

Sections 2, 7, 515(a), s 372(1)(1A) of the Criminal Code 
Sections 6, 23 of the Supreme Court Act
Section 6(b) of the Interpretation Act 1975 

Reference Books

Archbold, 2015 
Oxford Learner’s Dictionary

Counsel

N Hukula, for the Appellant
P Kaluwin, for the State 

DECISION ON APPEAL

17th October, 2022

1.      BY THE COURT: The appellant was indicted with nine others on one count of conspiracy to commit a crime, that of stealing, and one count of stealing K5.96m, contrary to s 515(a) and s 372(1)(1A) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.  

2.    At the trial the State filed a nolle prosequi in respect of one co-accused, Bore Burom. Another, Casper Louis, pleaded guilty. Two others were acquitted following no-case applications at the close of the State case. 

3.     The Court convicted Paul Stevens, Hubert Korede, Stewart Korina, Gelison William and the appellant following the trial.  The trial judge sentenced each of the accused, including the appellant, to the maximum penalty, seven years of imprisonment in hard labour, for conspiracy.  Paul Steven and Casper Louis were sentenced to 25 years of imprisonment for stealing, having regard to amendments made in 2013 to the Criminal Code which increased the maximum penalty to 50 years of imprisonment for the stealing of amounts above K1m but less than K10m.  The four remaining co-accused, including the appellant, were sentenced to 20 years of imprisonment for stealing, less time spent in custody.  The sentences were to be served concurrently. 

4.     There is no dispute on the appeal that K5.96m in cash belonging to Maybank Limited was stolen. 

5.     At the relevant time all those standing trial, except for the appellant, were employed by G4S.  At trial there was evidence that on 4 October 2013 Paul Steven, Radio Room Operator, and Hubert Korode, his supervisor, were in the control room of G4S at Konedobu, Port Moresby.  Paul Steven called Steven Uraliu, who was on duty that day and driving an armoured vehicle, back to base. At base, Paul Steven directed Steven Uraliu and his crew to take a different armoured vehicle, which was already holding tins of cash totalling K5.96m. The cash belonged to Maybank Ltd and was intended for delivery to the Bank of Papua New Guinea in town for banking.  Present in the armoured vehicle with Steven Uraliu were Gelison William, Stewart Korina and Casper Louis.  The armoured vehicle carrying the monies left G4S base accompanied by an escort vehicle driven by Vincent Kaupa, accompanied by his gunman, Bore Norum, and another person, Tony Mami.  On the way to the bank, as the vehicles were passing the Port Moresby Fire Station, another person, Robin Boito, driving a Nissan Vanette bus turned in from the junction and drove in between the escort vehicle and the armoured vehicle, and very shortly thereafter feigned some mechanical fault and stopped, blocking the lane in to town and blocking the escort’s vehicle sight of the armoured vehicle.  Vincent Kaupa sent Bore Norum on foot to check on the armoured vehicle.  He returned shortly afterwards to the escort car. After about two minutes the bus started up and drove on.  In the meantime, however, instead of carrying on to the bank, Steven Uraliu, at the armed instruction of Casper Louis, drove the armoured vehicle up to Davatari Drive where the monies were put into a waiting vehicle and taken away. Stewart Korina and Gelison William were locked up in the back of the armoured vehicle with Steven Uraliu to make it appear as if they had been robbed by outsiders.  

6.    It was the State’s case that the appellant was involved in the planning and execution of the theft.  We will come to the evidence against him below.

7.     The appellant appeals against both conviction and sentence. 

APPEAL AGAINST CONVICTION - GROUNDS

8.    The appellant personally filed a notice of appeal contending that the trial judge erred in convicting him when there was insufficient evidence to establish that he: a) was a party to the stealing of the monies from the armoured vehicle, or b) aided the stealing of the monies.  Furthermore, that the sentence was manifestly excessive having regard to the degree of his participation or the role that he played.

9.     The Public Solicitor was directed on 20 December 2020 to provide legal aid to the appellant. Counsel from the Office of the Public Solicitor appeared on the appeal and challenged the appellant’s convictions on both offences.  

10.    It is well established that to succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial.  In the event that the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred.  If not, it may dismiss the appeal:  Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.

CONSPIRACY

11.   Arguably, the face of the notice of appeal does not challenge the conspiracy conviction and the submissions challenging it sought to amend the notice, belatedly, without notice and without leave: Rolf Schubert v The State [1979] PNGLR 66; Ombusu v The State [1996] PNGLR 335; Hariki v The State (2007) SC1320; and Paul Guli & Kimin Gogumi v The State (2022) SC2272. 

12.    That said, it is a matter open to interpretation, the State did not object to the submissions, and some allowance might be made for the fact that the notice was drafted by the appellant himself. The arguments raised in submission have been heard and considered. 

2.	The trial judge found that the stealing was planned over a period of at least two months during which there were three planning meetings, one at Hubert Korode’s house, another at Gerehu, and one at the Ben Moide Club at Murray Barracks. He also inferred the existence of the conspiracy from the evidence of the events as they unfolded.   The appellant submits that there was no evidence that he participated in those planning meetings and that therefore his conviction must necessarily fail.  The submission misconceives the nature of conspiracy and the evidence required to establish it.  

3.	Section 515 creates the offence of conspiracy to commit a crime.  

A person who conspires with another to commit a crime or to do any act in any part of the world that–
(a) if done in Papua New Guinea would be a crime; and
(b) is an offence under the laws in force in the place where it is proposed to be done,
is guilty of a crime.
General Principles

4.	Conspiracy, or the meaning of “conspires”, is not defined in the Criminal Code.  As such much assistance is provided from the common law.  Many of the relevant principles were considered in the decision of Sakora in The State v Iori Veraga (2005) N2849.  It is useful for our purposes to restate some of the principles considered in that case as well as others that are of persuasive value and of particular relevance here.  

5.	Conspiracy is an inchoate offence: Board of Trade v Owen [1957] AC 602. It requires an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means: per Lord Denman CJ in R v Jones [1832] EngR 870; (1832) 110 ER 485.  

6.	It is established upon the entry into an agreement, express or implied, which need never be implemented: Roland Tom v State (2019) SC1833 at [38]; Veraga (supra) applying R v Aspinall (1876) 2 Qu D 48.  It is complete without the doing of any act save the act of agreement: R v Rogerson (1992) 174 CLR 268 at 279.  

7.	In addition to the act of agreement, it requires an intention in the mind of any alleged conspirator to carry out the unlawful purpose or to do the lawful act by unlawful means:  R v Jones (supra); R v Thomson (1965) 50 Cr App R 1; Veraga (supra).  

8.	The form of the agreement does not matter.  There is no need to establish the existence of meetings, nor a formal, nor even express agreement between the accused:  Roland Tom (supra) at [40], applying Veraga (supra).  

9.	Evidence of acts following the agreement (overt acts) may be, and often is, the only available proof that the agreement was made; but it is the agreement and not the evidence that constitutes the offence: Veraga (supra) applying R v Gudgeon (1995) 133 ALR 379 at 389.  All that is necessary for there to be an agreement is for two or more persons to concur by words or by conduct in a common design, each having the intention to bring about the unlawful object of the agreement.

10.	As explained by Sakora J in Veraga (supra) (emphasis added) after quoting Lord Pearson in Aspinall (supra), at 827:  

“A conspiracy involves an agreement expressed or implied… 

It is not necessary, therefore, in order to prove conspiracy, that there should be shown to have been direct communication between each conspirator and every other, provided that there is a design which is common to all of them: Kalajzich and Orrock (1989) 39 A Crim R 415….

“By the very nature of an offence such as conspiracy rarely if ever are there any direct evidence of an agreement between persons to involve in criminal activities. The rare occasions when direct evidence may be available is when a co-conspirator admits the offence and turns State evidence”.   

11.	Proof of the scope of a conspiracy may also consist in evidence of the separate acts and declarations of the alleged co-conspirators which point to their common or shared objective. When considered in combination, those separate acts and declarations may justify the tribunal of fact finding that there must have been a conspiracy of the kind alleged: Ahern v R [1988] 165 CLR 87, applying Tripodi v The Queen (1961) 104 CLR 1; The State v Tanedo [1975] PNGLR 395; State v Joseph Wai (2020) N8182 at [63]. Whilst often referred to as the “co-conspirator’s rule” it applies in any case where “two or more persons are bound together in the pursuit of an unlawful object”:  Ahern (supra) at [8] and [15].  See the discussion in Wai at [60] et seq.

12.	Whilst complete upon agreement, conspiracy is a continuing offence.  It extends over the period of the agreement until it is discharged, or terminated, by completion of its performance or by abandonment or frustration:  Aspinall (supra); Veraga (supra); Roland Tom (supra) at [39]. 

13.	Given that conspiracy is complete upon agreement, an accused cannot avoid liability because he or she at some later time withdraws from further participation in it.   

14.	It remains a single conspiracy no matter who joins or leaves it, as long as there are at least two persons at any one time acting in combination to achieve the same criminal objective:  R v Masters (1992) 26 NSWLR 450 at 458; Wai (supra) at [10]. 

15.	The prosecution need not prove that there was an agreement regarding the way in which the common purpose was to be achieved, only that there was agreement to achieve it: R v Gill and Henry (1818) 2 B and Ald 204.  

16.	Conspirators may join in the conspiracy at various times according to their role and level of involvement.  Any one of them may not know all the other parties, but only that there are other parties; and any one may not know the full extent of the scheme to which he attaches himself; but each alleged conspirator must know that there is in existence a scheme which goes beyond the illegal acts which he agrees to do and must attach himself to that scheme: R v Griffiths [1966] 1 QB 589; Veraga (supra).   

17.	In R v Anderson [1986] AC 27 HL the Court said in obiter that the alleged conspirator must have intended when he or she entered into the agreement to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve even if he or she intended to participate in only part of that conduct.

18.	The statement is not to be regarded as authority for the proposition that all conspirators must intend to play an active part in the agreed course of conduct.  For obvious reasons the organiser of a crime who recruits others to carry it out is guilty of conspiracy whether or not he intends to play any part thereafter: R v Siracusa (1990) 90 Cr App R 340; and Archbold, 2015 at [33-15].  See also the detailed discussion in Rolls v R; Sleiman v R (2011) 34 VR 80.

19.	As above, it is not necessary for the conspirators to know one another.  For instance, there may be what is sometimes described as a “wheel conspiracy”, that is a conspiracy whereby one or more persons at the centre make arrangements with various others.  Or there may be a 'chain' conspiracy where: 'A communicates with B, B with C, C with D, and so on to the end of the list of conspirators':  R v Meyrick and Ribuffi [1929] Cr. App. Rep. 94 as discussed in Veraga (supra).

20.	But the criminal purpose must be common to them all. In some cases it may be important to distinguish between a single conspiracy sharing one criminal purpose, and a situation where there are multiple sub-conspiracies which do not share the same common purpose: Gerakiteys v The Queen (1984) 153 CLR 317; applying Griffiths (supra).  While a person cannot be convicted of a conspiracy that is different from the one alleged, they may be convicted of one that is narrower, provided that it is not substantially different:  Gerakiteys; Griffiths (supra).    As explained above, they may not know the full extent of the scheme.

21.	It is not necessary, therefore, in order to prove conspiracy, that there should be shown to have been direct communication between each conspirator and every other, provided that there is a design which is common to all of them. The overall intention of the conspirators is relevant, rather than the conspirators' relationship to each individual overt act relied upon: Veraga (supra) adopting Kalajzich and Orrock (1989) 39 A Crim R 415.

22.	Thus a person may be convicted of conspiring with a person or persons unknown: Gerakiteys (supra). 

23.	In summary, to establish the offence of conspiracy under s 515(a), the State is required to prove beyond reasonable doubt that: 

(a)	there was an agreement between two or more persons to commit a crime;
(b)	the accused agreed with one or more of the alleged conspirators that the crime should be carried out; and
(c)	at the time he or she agreed, he/she intended that the crime should be carried out.

Consideration
24.	The appeal in this case turns on the appellant’s confessional statement. Essentially the appellant admitted that he agreed to help Paul Steven and his boys hold up one of the G4S armoured vehicles.  Part of his statement is reproduced below (emphasis ours):

“At about 7:30am in the morning, Paul Steven came to my house and told me to go and drop him at his work place at G4S Konedobu.

I went and refueled for K20.00 and we drove down to Konedobu.  While we on the way, Paul Steven told me that his boys made a planned to hold-up one of the G4S Armoured car; and he asked me to help him do this work.
He told me to go and wait at Sir Hubert Murry Stadium and when this armoured car came I would follow them after the escort car.  I would just follow and see if they were going to get this armoured car or not. 
He also told me that if the work is done, he would give me K10, 000.00.  I listened to what he said and just drove down to Sir Hubert Murray Stadium and waited on the road side next to the main gate into the stadium.
I waited for about 30 minutes then I saw the armoured car drove down the road with the escort car. 
I started the car engine and drove after this escort car escorting the armoured car down to the second round-about near the Inter Oil service station.
We past this round-about and traveled a little further down to the Law and Justice Sector Building where the Road Safety put up a road block. I stopped and a small sedan drove past me and I followed it and the escort car.
We traveled on the to the junction where the small car turned and drove down towards the main wharf, while I followed the escort and drove up close to the Town Fire Station.
I was surprised that the escort car just stopped in the middle of the road; I looked ahead and saw that a 15-seater bus broke down in the middle of the road so I stopped behind the escort car.
We waited a little while and owner of the bus started his car and we all drove up to town.
When we arrived in town, I turned back to a store closer to Big Rooster where I parked and went out to by a phone charger.
I was still parked there when Paul Steven called me and told me to go back and pick him; I got in the car and went back to Hanuabada bus stop where I picked him.
When I arrived there, he told me that his boys got the money already; so he told me to go and drop him at East Boroko; where they will divide the money…”

25.	It was open to the trial judge to accept the admissions made by the appellant in his confessional statement. The trial judge admitted the statement following a voir dire and no error is alleged in that regard. 

26.	For obvious reasons, there was no error on the part of the trial judge in rejecting the appellant’s evidence on the trial proper that he was at home at the time of the offence in those circumstances. Furthermore, the appellant failed to file a notice of alibi, his position was not put to State witnesses, and no witness was called in support. In addition, whilst somewhat equivocal, the admissions the appellant made to his neighbour, George Waviyida that the accused told him five days after the robbery that “he had transported some suspects and they have given him some money” was a further relevant consideration. The trial judge had the opportunity to hear and observe the appellant give evidence and the appellant has failed to demonstrate that the trial judge erred in rejecting his evidence.  Indeed, the appellant does not challenge the confessional statement on this appeal, rather his argument is that his involvement was limited to that outlined in his confessional statement and that does not demonstrate that he was part of the conspiracy.  

27.	There can be no doubt that on the evidence in the trial there was an agreement between two or more persons to commit the crime of stealing.  

28.	Even taking the confessional statement at its most favourable to the appellant, the appellant agreed with one of the conspirators that the crime should be carried out.  By his own admission, the appellant agreed with Paul Steven to help him and “his boys” “hold up” one of the G4S armoured cars.  The appellant agreed to assist others commit the crime of stealing, even if on one view he understood it was to be an aggravated stealing, or a robbery.  At the time the appellant agreed, he clearly intended that the crime should be effected.

29.	It matters not that he may have joined the conspiracy only that morning, nor that he did not know all the other parties.  He agreed with one other person, and he knew that there were other parties.  It matters not that he may not have known the full extent of the scheme to which he attached himself, or that he did not envisage participating directly in the offence itself other than through assistance.  At the time he agreed he clearly intended that the stealing should be achieved and he agreed to play some part in the furtherance of it.  That is evidenced by the admissions in his confessional statement to both the agreement reached, and his subsequent acts. To be clear, however, it is the agreement that is the nub of the offence and not what may or may not transpire thereafter.  

30.	On that basis we dismiss the appeal against conviction for conspiracy. 

Trial judge’s findings on the role of the appellant 
31.	To our minds the only question is whether the trial judge erred in finding that the appellant’s knowledge or role went beyond that outlined in his confessional statement.  We have found that question difficult.

32.	In finding the existence of the conspiracy generally the trial judge relied on the existence of planning meetings, and the inference arising from the manner in which events unfolded.  There can be no error in that regard.

33.	He also found that the offence was motivated by those accused who were employees of G4S and who were frustrated at the company’s failure to compensate the family of one of their colleagues who died in a work incident, and to respond to their own calls for increased salaries and allowances given the risks involved in their jobs.  

34.	As for the appellant, the trial judge found that he surrendered himself to police but “simply lied”. Whilst not expressly stated, the trial judge effectively found that parts of the appellant’s confessional statement attempted to minimise his involvement and were unreliable.  It is not unusual for a trial judge to make such a finding, having regard to the statement itself, any evidence that might be given by the accused who made it, and/or the totality of the evidence.  
35.	It should be remembered that an admission, or a statement of fact which suggests an inference as to any fact that is relevant and which is adverse to the interests of the person responsible for the statement, has long been accepted as an exception to the hearsay rule because it is presumed to be reliable. What an accused person admits or confesses to be true may reasonably be presumed to be true:  Slatterie v Pooley (1840) 151 ER 579, per Viscount Parke at 581.   The same cannot be said of out of court statements which are self-serving or exculpatory. As explained by Macrossan CJ of the Court of Criminal Appeal in R v Beck [1990] 1 Qd R 30 (emphasis ours):  

“Self-serving portions of statements of accused persons which in other parts contain admissions, go into evidence as part of a whole which is admissible against the accused for the very reason that admissions against interest are contained within the statements. The self-serving portions if they stood alone would not be admissible: they are hearsay, unsworn, out of court statements. The entry into evidence of such statements containing self-serving features means that the jury can give to the statements such weight as they think they deserve. The jury are quite entitled to have in mind the possibility that self-serving portions of an accused’s statement may not be as reliable as those parts which are against interest. Common sense and awareness of everyday psychological factors would alert them to this. Juries are commonly informed that they may accept none, some, or all of the testimony of witnesses who give evidence in a trial. The same rule must, in a general way, apply to the contents of statements which are placed in evidence and must do so even when the makers of statements are not called as witnesses. Of course, the absence of the author of the statement may make it more difficult to discriminate for the purpose of acceptance and rejection between different parts of the statement. Seeing and hearing a witness utter his version provides an advantage in deciding upon the acceptability of different parts of it. But other evidence given in a particular case and an awareness of the possibility that admissions against interest may tend to be more reliable than self-serving portions, may also be of benefit in conducting the same exercise. A general rule that the jury are entitled to discriminate in their acceptance of different parts of written statements put into evidence must be upheld even if in a particular case it might have to be said that there is no safe and satisfactory basis for making a distinction by accepting or rejecting. Everything will depend upon the circumstances and the matter is unlikely to call for judgment completely in the abstract. Even in a case like the present where there is little evidence provided from other sources which bears upon the question and assists in the exercise, there may be internal matters within the statement itself as well as the consideration that there may be a potentially superior credibility in the portions against interest which provide a basis.”

36.	The trial judge expressly found that the appellant himself said that he participated in the planning meetings with the others, but with respect that is not borne out by either his oral evidence or the confessional statement.  The appellant did admit he was at the Ben Moide Club in his confessional statement but said that he remained outside whilst Paul Steven went into the club.  He makes no mention of other meetings. 

37.	Steven Uraliu, who gave evidence for the State under the protection of immunity, said that there were “outsiders” at the planning meetings, i.e. people from outside G4S.  Putting aside the necessary caution with which his evidence was to be approached as an accomplice (Hagena v State (2017) SC1659; Emos v State (2017) SC1658; The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373; The State –v- Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v. The State (2009) SC1308) and in particular that he was a witness who had been or could be charged in relation to the alleged offence but against whom the State has decided not to proceed, in exchange for him giving evidence against the accused (The State v. Ben Noel (2002) N2253; The State v Runny Dau (2022) N9253), the evidence was a relevant consideration. But he was unable to name or identify the appellant as one of them (and any dock identification would have been of no probative value in the absence of any prior identification and the passage of time).  Similarly, whilst Uraliu said that one of Paul Steven’s relatives dropped him home from the Ben Moide meeting, there was no evidence that the appellant was related to Steven, and he did not say that that person participated in the meeting itself in any event.  

38.	A trial judge must provide reasons for his or her decision: Towingo v State (2008) SC983. Whilst it is not necessary for a trial judge to state all the reasons for their findings, in a joint trial like this one where the evidence and considerations applying in respect of the appellant were different in some key respects from the other co-accused, it was important for the trial judge to outline the basis for his findings against the appellant, particularly with respect to s 7 of the Criminal Code, discussed below. The trial judge’s reasons for convicting the appellant of the offences were limited and in one respect incorrect.

39.	That is not the end of the matter, however. Pursuant to s6(1) of the Supreme Court Act the Supreme Court has the power to draw its own inferences from undisputed facts or facts established by the trial judge’s findings, allowing for the trial judge’s advantage in evaluating conflicting testimony and the credibility of witnesses: Allan Oa Koroka v The State [1988-89] PNGLR 131; Rimbink Pato v Umbu Pupu [1986] PNGLR 310; Makalminja v The State (2004) SC726. 

40.	It might be said that there is an almost compelling inference that the appellant was involved to a greater extent than that outlined in his confessional statement. 

41.	The offence had been planned over a period of months, involving at least three planning meetings. It involved several participants including G4S employees and external actors. The offence depended on and demonstrated extensive coordination between all actors before, during and after the offence.  It is unlikely in those circumstances that another outsider would be brought in, at the last minute, on the morning of the offence.  Not only was it potentially risky to involve someone else at that late stage, it is not consistent with the degree of planning exhibited to that date.   The appellant also admitted that he was present at the site of at least one of the meetings, albeit he says he waited outside. 

42.	Furthermore, the appellant’s role appears to be of strategic importance.  The success of the offence depended on the armoured vehicle being able to drive away from its intended route without being observed or pursued by the escort vehicle.  The bus blocked the road for that purpose. But the presence of the appellant gave strength to that purpose. According to the driver of the escort vehicle, he was unable to reverse out of his lane to join the armoured vehicle because of the vehicles stopped behind him. On the appellant’s own statement his was the first of those vehicles.   

43.	In addition, there is the appellant’s statement itself.  It makes little sense. On one view the appellant deliberately placed himself in great danger, immediately behind an armoured vehicle and its escort vehicle, which he understood was about to be “held up”.  On the other, whilst he expressed “surprise” at the stopping of the bus, once able to move again, he followed the escort vehicle only a short distance into town before pulling over and making no further attempt to follow it.  That explanation arguably speaks of a man who was well aware of the plan, who knew that the armoured vehicle would separate from the escort vehicle, and that he was not required to follow the escort vehicle in those circumstances.

44.	Having said that, sitting here without the benefit of hearing the evidence ourselves, perhaps the evidence does not exclude the possibility that Paul Steven recruited the appellant only that morning and deliberately limited the appellant’s knowledge in some respects for various reasons.  The appellant was not a member of G4S but, on the accused’s own admissions, was well known to Steven and could be relied upon to take instructions from him.  In the circumstances, we will give the appellant the benefit of the doubt in the sense that we will assume that his agreement and subsequent participation was limited to that described on the face of his confessional statement.  For the reasons outlined above, that makes no difference to his conviction for conspiracy.   

45.	The relevance of that to his culpability for the purposes of sentencing is discussed below. 

STEALING  

46.	The appellant contends that the trial judge failed to set out any reasons for finding that the appellant was guilty of stealing pursuant to s 7 of the Criminal Code and that the evidence does not establish that the appellant participated in the offence.  

47.	The State submits that the trial judge gave reasons for his decision.  He found that the appellant was part of the group that planned and then executed the theft. Furthermore, the evidence shows that the appellant followed the escort vehicle as instructed and that he executed the stealing when, as the getaway driver, he assisted the others to escape with the stolen money. 

48.	Neither party either on this appeal, nor at the court below, addressed the application of s 7 by reference to established principle supported by relevant authority.  

49.	Section 7 of the Criminal Code provides:

7 PRINCIPAL OFFENDERS
(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.

50.	Pursuant to s 7 of the Criminal Code criminal responsibility applies to every person who is a party to an offence. It deems to be guilty of an offence every person who actually does the act or makes the omission that constitutes the offence, who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence, who aids another person in committing the offence, or who counsels or procures another to commit it.  

51.	Whilst it is often useful to describe the person who does the act or omission under s 7(1)(a) as the “principal offender” when analysing the role of an accused, it must be borne in mind that s 7 operates to deem each of the persons identified in s 7(1)(a), (b), (c) and (d) “to have taken part in committing the offence”, that is to be principal offenders. 

52.	In some cases more than one subsection of s 7(1) may apply. 

53.	In considering the application of s 7 in this case we have had regard to authorities in both this jurisdiction and a number elsewhere, the latter of which whilst not binding are, in our view, persuasive.

S 7(1)(a), actually does the act or makes the omission 

54.	As above, s 7(1)(a) applies to every person who actually does the act or makes the omission that constitutes the offence. 

55.	Every person who actually does 'the act' for the purpose of s 7(1)(a) means “all persons who actually do the act or one or more of the acts in a series of acts which constitutes or constitute the offence”: R v Wyles, ex parte Attorney-General [1977] Qd R 169 by applying to s 7(1)(a) the provision in the Acts Interpretation Act requiring a word in the singular to be read as including the plural; applied in Warren & Ireland v The Queen [1987] WAR 314; approved R v Webb; Ex parte A-G [1990] 2 Qd R 274.  We adopt the reasoning in that case to this jurisdiction having regard to s 6(b) of the Interpretation Act, 1975 which is in the same terms. Similarly, the definition of “offence” as an “act or omission” in s 2 of the Criminal Code is extended by s 6(b) of the Interpretation Act, 1975 to include a series of acts or omissions. 

56.	So, for instance, if two persons confront a person, one threatens to use violence with the necessary intention, and the other steals something from the person, they have between them committed the acts constituting the offence of robbery.  

57.	Similarly, s 7(1)(a) will apply when two or more accused together inflict a blow or blows that combine to cause death, as each will do the act constituting the offence under s 7(1)(a) (quite apart from also aiding the others under s 7(1)(c)). Thus, it is not necessary to identify a particular principal offender: R v Sapulo Masuve (1973) N732.

58.	We note here briefly that there has in recent years been a divergence of views expressed in Queensland, from which our s 7 is taken, and Western Australia which also contains s 7 in the same terms, as to whether s 7(1)(a) incorporates the common law concept of “acting in concert”, also referred interchangeably to as “common purpose” or “joint criminal enterprise”, to capture members of the common purpose or joint criminal enterprise who do not themselves actually do the act or omission constituting the offence.   

59.	In L v Western Australia [2016] WASCA 101, the Court of Appeal observed that under the common law, all parties to the arrangement or understanding are liable even if only one does the relevant act.  But the Criminal Code differs from the common law in that, under s 7(1)(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. Otherwise, deliberate assistance or encouragement of the kind referred to in s 7(1)(b) - s 7(1)(d) is required. See [33] and [55].  In R v Quagliata [2019] QCA 45 the Court of Appeal went further, quashing the conviction where the jury had been directed in terms of joint criminal enterprise.  

60.	Whilst some cases make reference to “acting in concert”, “common purpose” or “joint criminal enterprise”, in the context of s 7 in general terms, we have not found any reported case in this jurisdiction where an accused who has not actually done themselves an act constituting the offence has been held liable under s 7(1)(a).  Those cases dealing with multiple persons accused of robbery or homicide which refer to common law principles appear to concern situations where those present have each participated in doing an act constituting the offence and/or have approach liability on the basis of s 7(1)(c) and aiding, see for instance Omowo and Yirihim v The State [1976] PNGLR 188; John Badi Woli & Pengas Rakam [1979] PNGLR 593; Erebebe v State (2013) SC1228 at [81].

61.	We also note the comments of the Supreme Court in Imiyo Wamela v The State [1982] PNGLR 269 to the effect that the Code should be construed according to its natural meaning and without any presumption that it was intended to restate the common law, except where it uses language of the common law in stating a principle of criminal responsibility or in defining a crime. 

62.	Having regard to the above, we see no reason to import into s 7(1)(a) the common law principles of acting in concert, common purpose or joint criminal purpose. The words of s 7(1)(a) are clear.  “Actually” should be given its natural and ordinary meaning. Furthermore, the use of any of those terms is absent from s 7(1)(a), unlike s 8 which expressly refers to common purpose.

63.	The offence of stealing is complete upon the taking or moving of property by some physical act with the intention to permanently deprive.  When the offence is complete is a question of fact to be determined in any particular case:  State v Kissip (2020) N8184 at [90] to [91].  

64.	Regardless of whether the appellant was a member of the conspiracy, or even if it had been established that he had participated in the planning of the offence with the others, he was not liable under s 7(1)(a) as he was not one of those who actually did the act or acts constituting the offence, that is the taking and moving of the monies.  

S 7(1)(d), counsels or procures 

65.	Nor did the appellant counsel or procure anyone to commit the offence for the purpose of s 7(1)(d).  

66.	The term “counsel” is not defined in either the Criminal Code or the Interpretation Act. The plain and ordinary meaning might be found in the context of the section, that is “urged” or “advised” or “solicited”: as stated by Gibbs J in Stuart v The Queen [1974] HCA 54; (1976) 134 CLR 426; see also R v Oberbillig [1989] 1 Qd R 342 considering the equivalent provision in the Queensland Criminal Code. 

67.	To “procure” is “to obtain”, “to bring about”, according to the Oxford Learner’s Dictionary. In considering the equivalent of this provision in R v Adams [1998] QCA 64 the Queensland Court of Appeal said that procuring involves more than mere encouragement, and means “successful persuasion” to do something. There must be a causal link between the procuring and the commission of the offence: see Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684.  See Wamela (supra) for a detailed consideration of counselling and procuring. 

68.	If the appellant had participated in the planning meetings then the situation might well be otherwise and he would be liable for counselling those who did the act to commit the offence.

S 7(1)(c), aids 

69.	We will consider first s 7(1)(c) as it is the provision which has received most attention in this jurisdiction.  

70.	For the purposes of s 7(1)(c) the State must first establish by evidence that is admissible against the accused that an offence has been committed:  R v Tovarula [1973] PNGLR 140. S 7 does not require that the “principal offender”, or the person who committed the offence, must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33; Wamela (supra). Nor is it necessary for the prosecution to establish the identity of the person who committed the offence. It is enough that the commission of an offence by someone is established in the case against the accused: Borg v R [1972] WAR 194.  

71.	The State must also establish that the accused knew the essential facts making up the offence, including where relevant the state of mind of the person who committed the offence, and acted with intention to aid him or her for the purpose of s 7(1)(c):  Tovarula (supra); S v Turan (1952) N211. 

72.	It is not possible to be an aider through an act which unwittingly provides some assistance to the principal offender: Coney (1882) 8 QBD 534.  

73.	In addition to intention to aid, there must be aiding in fact:  R v Wendo [1963] PNGLR 217. 

74.	The definition at common law, such that to aid means that the accused “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” remains relevant: Tovarula (supra) applying R v Russell [1933] VR 59. Essentially, however, we agree that to “aid” is an ordinary English word, which means "assists" or "helps": R v Sherrington & Kuchler [2001] QCA 105 at [12].  

75.	It is not necessary for the State to establish that the accused himself or herself held the same intention as the person who committed the offence. It is sufficient for the prosecution to prove that the accused knew that the principal offender held the specific intention, and that knowing this, aids:  R v Jeffrey [1997] QCA 460.  

76.	Thus a person who deliberately aids while in possession of necessary knowledge will be liable even if indifferent to the principal’s motive, as opposed to their intention:  Lynch v DPP for Northern Ireland [1975] AC 653.  The wish must not be confused with that of intention or will. In National Coal Board v. Gamble [1959] 1 Q.B. 11, Devlin J. said:

“If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor.”

77.	It is also possible to aid whilst harbouring feelings of disapproval of the offence: Beck (supra). In Beck the appellants abducted, raped and murdered a school girl.  The appellant, his de facto wife, assisted the abduction and rape and pleaded guilty.  She was found guilty of murder on trial.  Her appeal against conviction pursuant to s 7(c) was unanimously dismissed by the Court of Appeal finding that it was open to the jury to find that the appellant’s voluntary and deliberate presence during the commission of the crime without opposition or real dissent constituted deliberate encouragement to her husband.  Per Macrossan CJ (emphasis ours):

“It is possible, after all, to aid someone in the commission of an offence while harbouring feelings of disapproval of the offence and of the conduct involved in it. This form of aiding could occur because of the strong call of a bond felt by the aider with the principal actor who, for his part, may need no encouragement and is determined, any how, to attempt to commit the offence. If the word “aids” needs any explanation at all, it might, on occasions be better understood in its effect by the use of words such as “give support to … help, assist” (see Collins English Dictionary (1979 ed.) and The Shorter Oxford English Dictionary). The word which the Code itself uses is “aids” and it will always be necessary to come back to that. There must be some deliberate positive involvement, if not active physical involvement, when the offence of aiding occurs.”

78.	It is not enough to show that the accused knew that some illegal venture was intended. But it is not necessary that the accused knew that the particular offence would be committed on a particular day at a particular place.  The prosecution must show that the accused knew that an offence of the kind that was committed was intended, and with that knowledge did something to help the offender commit it: Wamela (supra); Karani and Aimondi v The State [1997] SC540 applying R v Bainbridge [1960] 1 QB 129 at 134.  
79.	In Bainbridge (supra) the appellant had some six weeks before a bank was broken into by means of oxy cutting equipment left behind by the thieves, purchased that equipment. He was charged with being an accessory before the fact to office breaking, the case against him being that he bought the equipment on behalf of the thieves with full knowledge that it was to be used for the purpose of breaking and entering premises. The appellant admitted that he had suspected that the equipment was wanted for something illegal but denied that he had knowledge that it was to be used for any such purpose as it was in fact used. His appeal was dismissed. 
80.	The Supreme Court applied Bainbridge in Karani (supra). Two police officers supplied a pistol which was later used in an armed robbery.  The Supreme Court found that it was sufficient that a crime of a particular kind was intended, namely robbery of a person involving actual or threatened violence using the pistol which involved the obtaining of property in the form of money or valuable goods. It was unnecessary for the State to show that at the time the appellants provided the pistol they intended that it would be used to rob a particular store on a particular date at a particular time. 
81.	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.  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. In other words, presence and wilful encouragement of the commission of the offence will suffice: Tovarula (supra). 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; Erebebe (supra). 

82.	Whilst there must be encouragement in fact, it is not necessary that it is causal or that the principal was aware of the encouragement provided by each individual. Here we note the comments of the Court in Beck (supra).  Similarly, as observed in R v Schriek [1997] 2 NZLR 139 by Chief Justice Eichelbaum in delivering the judgement of the New Zealand Court of Appeal:
“It is not necessarily an all embracing or exhaustive definition to suit all circumstances, nor will we attempt to construct one.  In the prize fight or duel situation, or the more commonly found equivalent today where violence is inflicted or sexual offending perpetrated in the presence of others, it would be a manifest nonsense to require proof that the principal offenders were aware of the encouragement provided by each individual.  If ‘by his countenance and conduct’ the secondary party intentionally is giving encouragement of which the principal offender could be aware, even if only by virtue of being conscious of the presence of a group of people behaving in similar fashion, in the generality of cases there would be sufficient evidence of abetting.  Indeed, as Smith and Hogan say at p 131 with reference to Coney and prize fights:
‘Presence at such an event is certainly capable of amounting to an actual encouragement.  If there were no spectators there would be no fight and therefore, each spectator by his presence, contributes to the incentive to the contestants.’
It needs to be noted that the foregoing discussion is separate from the situation where the spectators are present pursuant to a joint enterprise.” 
83.	A person may be convicted of aiding an innocent agent, or a person who was not or could not be convicted, for instance a person lacking legal capacity because of age or insanity: Wamela (supra). 
84.	If a person wishes to withdraw his or her involvement in the commission of an offence he or she must communicate that fact to his or her co-accused and take action to undo the effect of the previous aiding, counselling or procuring: Wamela (supra).
85.	In summary, to establish liability pursuant to s 7(1)(c) of the Criminal Code the State must establish beyond reasonable doubt that: a) the offence was committed; b) 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 person who committed the offence; and c) the accused intentionally aided (assisted or encouraged) that person to commit the offence.

7(1)(b), does any act for the purpose of enabling or aiding 

86.	Pursuant to s 7(1)(b) liability attaches to a person who does any act for the purpose of enabling or aiding another person to commit the offence.  

87.	As observed by Minogue CJ in Tovarula (supra), s 7(1)(b) appears to be wider than the common law in that it attaches criminal responsibility to those who do not in fact aid in the commission of an offence but who engage in conduct for the purpose of aiding. 

88.	This is consistent with the position in Queensland.

89.	Per Derrington J in Beck (supra):

“Although at common law it would also be necessary to prove that in fact the appellant’s presence did aid her husband by providing such encouragement, (R. v. Clarkson [1971] 1 W.L.R. 1402; [1971] 3 All E.R. 344; (1971) 55 Cr.App.R. 445) it is not necessary to do so under s.7 of the Code, providing that it was given by her with the purpose of aiding him; for even if aid was not in fact provided, s.7(b) makes an accessory liable if he does the act for the purpose of enabling or aiding the other to commit the offence.”

90.	As explained by McPherson JA of the Queensland Court of Appeal in Jeffrey (supra):

“In the prosecution case against the secondary offender, the prosecution is, of course, bound to prove all the elements of the principal offence to which the secondary offender is alleged to have been a party; but, when that is done, all that is necessary to establish the criminal responsibility of such an offender is that, with the requisite knowledge or state of mind, he did an act for the purpose of aiding or assisting another person or persons to commit that offence.” 

91.	Similarly, in R v Brett Anthony Cook & Ors [1994] QCA 227, per Byrne J said that s 7(1)(b) would apply even where the act does not cause any effect, provided that the offence is actually committed. 

92.	Directions in respect of s 7(1)(b) in that jurisdiction are given on the basis that the jury must be satisfied that the accused “did acts or made omissions for the purpose of enabling or aiding the perpetrator, even if those acts or omissions did not in fact assist”: see for instance R v Taylor [2021] QCA 15. 

93.	Whilst in Erebebe (supra) the Court confirmed that to give rise to aiding or abetting by encouragement by presence, a person’s presence must both be intentional and, in fact, provide encouragement to those who commit the offence, the Court found that there was no error in the trial judge’s finding that the second appellant's presence at the ambush was sufficient proof that he aided the commission of the offence, which is the requirement under s 7(1)(c).  Whilst the Court did recognise the distinction in terminology between s 7(1)(b) and s 7(1)(c) later in its judgement, it was not required in the circumstances of the case to consider the application of s 7(1)(b).  

94.	It appears that the question of whether a person may be convicted under s 7(1)(b) even when the act he or she did did not in fact assist has not been specifically determined before in this jurisdiction. 

95.	We agree with the views expressed in Tovarula (supra) and the Queensland authorities that s 7(1)(b) does not require the prosecution to establish that the conduct of the accused did in fact assist the commission of the offence. This is consistent with the plain meaning of s 7(1)(b).  

96.	Provided that an offence is committed, and that the accused knew that an offence of that kind was intended, all that is necessary to establish the criminal responsibility of the accused is that he or she, with the requisite knowledge, did an act for the purpose of aiding or assisting another person or persons to commit the offence. 

97.	In summary, to establish liability pursuant to s. 7(1)(b) of the Criminal Code the State must establish beyond reasonable doubt that: (a) the offence was committed; (b) the accused knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the accused did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist.  

Consideration - S 7(1)(b)

98.	In this case there is no issue that the offence of stealing was established. 

99.	By his own admission, the appellant knew the essential facts constituting the offence, namely the taking of property. He was aware of the intention held by those who did the act constituting the offence, that is the intention to permanently deprive the owner of the monies taken. 

100.	The evidence is insufficient to establish that the appellant intended by his presence behind the escort vehicle to communicate or convey encouragement to those committing the offence.   

101.	Putting that aside, even taking the evidence at its most favourable to the appellant, it clearly established that the appellant did an act or acts for the purpose of enabling or aiding the perpetrators to commit the offence, that is he acted in accordance with the instructions of Paul Steven whom he knew had planned with “his boys” to commit the offence.  The appellant waited for and then followed the armoured and escort vehicles as instructed.  He was available to receive further instructions.  There can be no doubt that he did those things for the purpose of enabling or aiding the actual perpetrators to commit the offence.  He did them with the intention of “helping” and on the expectation of receiving some of the proceeds of the offence in return.  He admits this.  This is not a case where the intention of the accused must be inferred from the circumstances. 

102.	It is therefore irrelevant to his criminal responsibility whether those acts in fact assisted.  The relevance of that to punishment is a separate matter.

103.	For these reasons we dismiss the appeal against the appellant’s conviction for stealing.  We make the following observations regarding s 7(1)(c).

Consideration - S 7(1)(c)   

104.	For the reasons discussed above, this is not a case where the accused aided by encouragement at the scene. 

105.	It is also clear, however, that a person does not need to be present at the commission of the crime in order to be deemed by s 7(1)(c) to have "taken part in" committing the offence by aiding or assisting another in committing it:  Karani (supra).

106.	Furthermore, a person may aid another to commit a crime for the purposes of s 7(1)(c) without the knowledge of the person who is being aided.  As discussed by Eichelbaum J in Larkins v Police HC 282 [1987]: 

“If during some commotion a bystander decides to trip a constable pursuing a fugitive, why should he note be regarded as a party to escaping from lawful custody, notwithstanding that the person assisted may be unaware of his involvement?  Or likewise if during a riot the principles offenders tipped a vehicle over and injured an occupant, should it matter that they were unaware that a secondary party had joined in and helped them? Of if a blind man was assisted whilst he struggled to avoid arrest?”

107.	As the Court observed, even without resort to more complex plots, such as where X arranges for Y to commit a crime, and without informing Y, procures Z to smooth the way, it is possible to think of many more examples.  

108.	In the circumstances it does not matter here that the evidence does not establish that the principal offenders were aware of the appellant’s assistance.

109.	It is also clear from Karani and Bainbridge (supra) that it is sufficient for an accused to have knowledge of the type of offence that is committed or to be committed.  They do not need to know the specific or precise details of the offence. 

110.	It follows that an accused does need to know precisely how their conduct aids or assists the commission of the offence provided that they intend that their act or acts will assist the principal offender. 

111.	It is also clear that a person can aid the principal through another. The Supreme Court in Karani (supra) found that the evidence established that the appellants handed the gun around to various people for advantage knowing it would be used in the commission of a robbery. It was not necessary to show that the person they gave it to was the one who actually used it for the commission of the offence.

112.	Involving multiple players, and restricting the information available to each of them, is of course, a tactic often used by those in control of complex plots to reduce both the risk of exposure, and the risk of successful prosecution in the event of exposure.  

113.	The critical issue is whether when the accused did the act or acts that assisted he or she did them intending that they would aid or assist the commission of the offence. 

114.	In this case, the evidence established that the offence was committed, and that the appellant knew the essential facts constituting the offence that was to be committed, and that he intentionally aided the principals to commit it.  

115.	The appellant gave support and assistance to Steven. At Steven’s request he followed the vehicles as instructed and observed what was happening. He acted as an additional set of eyes for the principal offenders, through Steven, from whom he stood ready and willing to take further instructions, and offer further assistance, albeit that he was not required to do so (until after the commission of the offence).   

116.	It is an interesting question whether he also aided by blocking the escort’s vehicle ability to reverse out and rejoin the armoured vehicle.  He was told to drive behind the escort vehicle and he did that. Stopping is a necessary part of any driving. So whether or not he appreciated that he might also be assisting the offence by stopping behind the vehicle is arguably beside the point. See s 24(2) of the Criminal Code. The issue would be, however, whether that assistance occurred by accident. Ultimately, it is not necessary to decide, and it would add little to his culpability in any event. 

117.	In summary, it is our view that the appellant did an act to aid, and did aid, for the purpose of s 7(1)(b) and (c) of the Criminal Code, respectively.

CONCLUSION  

118.	Accordingly, while the points raised on the appeal as to the role of the appellant, and the reasons of the learned trial judge, might be decided in favour of the appellant, we dismiss the appeal against the convictions on the basis that no miscarriage of justice has actually occurred: s 23(2) of the Supreme Court Act applied.   

SENTENCE

119.	It nevertheless follows for the reasons outlined above that the sentences imposed are affected by errors of fact as to the culpability of the appellant. Accordingly, the sentences must be quashed and appropriate sentences substituted: William Norris v The State [1979] PNGLR 605. 

120.	Neither party assisted the Court on the matter of sentence, other than the submission by the appellant that it was excessive having regard to the limited role he played as set out in his confessional statement.      

121.	The principles governing parity discussed in Gimble v The State [1988-89] PNGLR 271 were considered and clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26;  (1997) 189 CLR 295; affirmed recently in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis ours):
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46;   (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..
Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."
122.	On sentence the learned trial judge imposed the maximum penalty of 7 years of imprisonment on all offenders for conspiracy.  On stealing he sentenced Caspar Lewis and Paul Steven to 25 years having regard to the new maximum of 50 years pursuant to s 372(1A) of the Criminal Code.  

123.	Section 372(1A) provides that if the thing stolen was money exceeding K1m and less than K10m, the offender is liable to imprisonment for a term of 50 years without remission and parole.  Section 372(1B) was also inserted into the Code at the same time. It provides that if the thing stolen is money exceeding K10m the penalty shall be life imprisonment.   

124.	On the evidence Casper Lewis and Paul Steven were the ringleaders. Hubert Korode, Stewart Korina and Gelison William were inside the armoured vehicle at the time of the offence.  All were employees at the time of the offence, and the offences thus involved a serious breach of trust on their part.  

125.	We make it clear that whether or not an accused’s culpability is necessarily reduced for conspiracy by the fact he joined it at a later stage will depend on the facts and circumstances of any particular case.  

126.	The appellant’s culpability was reduced by a number of factors in this case comparative to the other participants, both in conspiracy and the substantive offence.  He was not employed by G4S and only agreed to assist on the morning of the offence. The assistance he provided was limited. Whilst it is reasonable to infer that he must have appreciated that stealing from a G4S armoured vehicle would involve a very large amount of monies, there was no evidence he knew the value of the money involved, and the amount he personally benefited was limited to between K5000 and K10,000.  He surrendered to police, albeit that he did so after absconding and when it became clear that police were looking for him.  Nevertheless, the offences were still very serious, and the appellant conspired to commit the offence, and willingly aided its commission. 

127.	His offending cannot be regarded as of the worst kind warranting the maximum.  Furthermore, having regards to the principles of parity, we substitute a sentence of five years of imprisonment for the offence of conspiracy.  

128.	On the offence of stealing, there was no argument before us by the parties as to whether s 372(1A) is a mandatory or maximum penalty.  In the absence of such argument and adopting the approach taken by the Supreme Court in Kaya (supra) at [100] to [104], we would treat the penalty as a maximum penalty: see [100] to [104] per Berrigan J, noting the comments by Batari J at [13].  

129.	There appear to be no other reported cases dealing with such a large amount of stolen monies following the amendments to the maximum penalty in 2013. 

130.	Parliament has clearly mandated by the increase in the penalty to 50 years of imprisonment that offences of stealing monies above K1m must be met with strong punitive sentences:  Kaya (supra) at [3] to [5] per Batari J and [107] per Berrigan J. 

131.	Having regard to the principles of parity, we substitute a sentence of 10 years of imprisonment for stealing, to be served concurrently.  

CONCLUSION

132.	Accordingly, we make the following orders:

1.	The appeal against conviction is dismissed and the convictions for conspiracy to commit stealing and for stealing are confirmed.
2.	The appeal against sentence is upheld and the sentences quashed.
3.	The following sentences are substituted:

a.	The offender is sentenced to five years of imprisonment on the charge of conspiracy to commit the crime of stealing contrary to s 515(a) of the Criminal Code;
b.	The offender is sentenced to ten years of imprisonment on the charge of stealing contrary to s 372(1)(1A) of the Criminal Code;
c.	The sentences are to be served concurrently;
d.	Time spent in custody to date is to be deducted.
_______________________________________________________________
Public Solicitor:     	Lawyer for the Appellant
Public Prosecutor:   	Lawyer for the State