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Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)

DC6011

Papua New Guinea


[In the Criminal Jurisdictions of the District Court Held at Waigani]


CB NO 3243 OF 2020


BETWEEN:


THE POLICE
[Informant]


AND:


MILENG MEDAKO
[Defendant]


His worship Paul P. Nii


31st May 2021


PROCEEDINGS: -Charge- Arm Robbery contravening Section 386(1)(2)(a)(b)(c) of the Criminal Code Act 1974- Has the Police delivered prima facie satisfactory evidence to commit the Defendant to stand trial in the National Court.


EVIDENCE: Permitted condition for prima facie case- Presence of the elements of arm Robbery. Evidence is suitable to commit the Defendant to stand trial in the National Court. There is evidence on the elements of Arm Robbery- Evidence demonstrates there is a case of Arm Robbery.


PNG Cases cited:


State-v- Belami [2020] PGNC 449; N8613,
Akia v Francis [2016] PGNC 335; N6555
Police-v-Wamp [2020] PGDC 66; DC 5071
Police –v-Timothy [2020] PGDC 67; DC 5070
State –v-Dominic [2013] PGNC 297; N5187


Overseas cases cited:
Nil


REFERENCE


Legislation


The Constitution
Criminal Code Act 1974 Chapter 262
District Court Act 1963 , Chapter 40
Evidence Act 1975


Counsel
Police Prosecutor: Peter Samgy For the Informant
In person For the Defendant


RULING ON SUFFICIENCY OF EVIDENCE


31th May 2021


INTRODUCTION


NII, P Magistrate. This is a declaration on whether a prima facie case is demonstrated within the meaning of Section 95(1) of the District Court Act after evidence in the Police Hand Up brief and Defense case are judiciously deliberated.


CHARGE


  1. Defendant is charged with one count of arm robbery contravening Section 386(1) (2)(a)(b)(c) of the Criminal Code Act 1974.

FACTS


  1. Police say the Defendant is Mileng Medako, aged 27 years and from Kurum village in Sumkar District, Madang Province. On 28th August 2020, the Defendant was arrested and charged for the offence of Arm Robbery.
  2. Police allege that on 21st August 2020, the Defendant was at Property Investment and Consultant limited office at East Boroko in National Capital District, part of a group of accused which caused armed robbery.
  3. Police allege that on 21st August 2020, the Defendant hired a motor vehicle, Toyota Camry, blue in color bearing registration BFO 034 but his accomplices or other suspects in the robbery removed the original number plate and replaced with a fake registration number plate of CBC 348. Subsequently, Defendant gave the said vehicle to six (6) of his accomplices of which two are identified as Jack Mokoko and Stanis Susuve. Police say the suspects used this vehicle as gate away car from another Nissan Sedan bearing Registration BFQ 143 and drive to Property Investment and Consultant limited office at East Boroko in National Capital District and held up a Filipino manager of the Company.
  4. Police say the suspects with the act of violence stole from Mr Mark Tanganos cash money of K21,000 and other valuable items including an IPhone brand and Samsong Galaxy phones valued at K5000 and K3000 respectively and drove away in their gateway car.
  5. On the 27th August 2020, the Dependent surrendered himself to police and afterwards, he was arrested, charged and interrogated for the offence of arm robbery. Police file containing evidence against the Defendant was served on the 24th April 2021. On the 16th February 2021, Defendant filed his submission disputing the Police hand up brief encompassing evidence for the charge against him and now is my ruling on the sufficiency of evidence.

ISSUE


  1. Whether a prima facie case is legitimately established and that is whether Police evidence in the Police file is agreeable to permit the Defendant to stand trial?

THE LAW


The Law on Committal Proceedings


  1. Sections 94 to 100 of the District Court Act deliver the reliable foundation for Committal Proceedings.
  2. The elements of an offence plays an imperative role in ensuring the facts corresponds with the alleged act and charge against the Defendant. This committal must be satisfied that all the elements of the offence are delivered and henceforth it will rule on the evidence contained in the police hand up brief herein the police file. The process under which committal courts administer adjudication is well established in the matter of Akia v Francis[1].The Committal court only weights the evidence in the Police file to make sure there is sufficient evidence connecting the charge against the Defendant. The principle in Aki –v- Francis is further supported in my own case of Police –v-Timothy[2]. In this case I administrated that: “Committal court functions as a purifying process where it filters the evidence to ensure there is necessary evidence associating to the charge”.


CHARGE


  1. The offending law or the Law on the charge of Arm Robbery:

386. The offence of robbery.


(1) A person who commits robbery is guilty of a crime.


Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,


he is liable to be sentenced up to death.


ELEMENTS OF THE OFFENCE


  1. The courts in numerous cases have tasked Prosecutions to establish the elements of the offence against the Defendant. In my own case of Police-v-Wamp[3], I have mentioned that elements of an offence should be established by Police in the police evidence. It is significant to ruminate that any crime either summary (minor) or indictable (serious) implicates three (3) elements; firstly, it is the act or the behavior and comportment subject to the commission of an act (commonly referred to as “actus reus’), secondly; the perpetrators mental or psychological state during the period of the act (commonly referred to as “mens rea”) and, lastly; the relationship between the action or commission and the outcome or result.
  2. The National court in State –v-Dominic[4] decided the elements of the offence of armed robbery to be the following:
    1. The accused
    2. Stole property (took and carried away (asportation) property with the intention of permanently depriving the owner or person lawfully in possession of the property without his consent).
      1. The Property was taken from the person of another.
      2. The accused was in company of others.
      3. Was armed with a dangerous weapon.
      4. Immediately before, during or immediately after the taking of the property he used violence or wounded the person of

PROSECUTION CASE


  1. Police evidence is contained in the police file or the police hand up brief. This file entails of victim statement, confessional statement from the Defendant, witness declaration, case officer’s statement, corroborator statement and statements from other policemen and people involved in the arrest, charge, interrogation and prosecution of the Defendant.

Witness testimonies from Police


  1. Constable Peter Aikel - he is the investigating officer and the police man who interviewed the Defendant. This witness is a member of the Arm Robbery Squad of the Police force. His statement demonstrates how he conducted the interrogation and its subsequent charge against the Defendant.
  2. Constable Dungen Gawi – he is a member of the fox division of the Police force. His statement contains how he used a laptop tack down the location of iphone using a GPS tracking system installed in his laptop.
  1. Constable Israel Bill, Senior Constable Samuel Gomoro, First Constable Tony Paraka and First Constable David Yakasa, - they are police witness and members of different squads of the Police force but were called in to assist in the operation that later let to the apprehension of the Defendant. Their statements contain information about how the Defendant was apprehended.
  1. Senior Sergeant Joe Puana and Senior Constable Ali Tep – both these witness’ are members of the Arm Robbery Squad of the Police force. Their statements enclose their participation with the Defendant and how the Defendant enlightened to them about the crime scene and their dialogues with the Defendant.
  2. Constable Noel Woyengu – this witness is a member of the Arm Robbery Squad of the police force and his statements captures how the Defendant was interviewed and the Defendant’s response.

Expert evidence


  1. First Constable Kemos is a member of the National forensic Science, a division of the police force who is the photographer of the crime scene. His statement encompasses how he took photos of the crime scene and all these photos are attached are exhibits in the police file which will be used as evidence against the Defendant.

Civilian Evidence


  1. Jimmy Maladina - this civilian witness is the Managing Director of the victim Company, Property Investment and Consultant Limited (PICL). He is the Complainant in the allegation against the Defendant and his statement captures material about how his company’s money was robbed by the suspects when the robbery took place.
  2. Mark J Taganos and Jack M Rautoka – these witness are employees PICL and they were there at the scene of location. Their evidence testifies how they were held up and robbed of K21, 000 by the suspects.
  3. Qinten Ivarature, Jeremiah Jangiko and Sebastian Benson- these witnesses know the Defendant as statement in the police file shows. Their testimonials comprises of how they arranged the vehicle that was used in the robbery and how the vehicle was given to the suspects to use in the robbery.
  4. David Puio and Gerald Hou- these witness statements shows the suspects location after the robbery since they all reside next to each other.
  5. Maria Henao Loko – She is the Defendant’s wife and her statement contains when the Defendant visited her and his children perhaps after or before the incident

DEFENSE SUBMISSION


  1. Firstly, Defense submits that the Evidence of state witness Tagaous Mark was only a brief account of what happened during the alleged robbery but that evidence does not connect the Defendant to the offence and hence that aspect of the statement is questionable and does not attract the elements of the offence. Defense then says that the evidence of state witness and complainant Jimmy Maladina is of no effect as he was not there at the time of alleged robbery and therefore court should not accept that. Defense further disputed that state witness statement of Jack Michael Mase Rautoka and confessional statement of Ivarature Quinten as unrelated and does not have any relevance to the offence. Defense and therefore court should not admit these. Finally defense ask the court not to accept witness statements of Benson Sebastian, Jangiko Jeremiah, Hoi Gerald, Puio David because none of their statements would attach the Defendant to the offence as he was present at the time of the offence. Lastly, Defense ask the court not to admit the statements of policemen Aikel Peter, Pauna Joe, Tepi Ali, Dungen Gawi, Noel Woyengi, Bill Israel, David Yakasa, Tony Paraka and Samuel Gomoro as they were undertaking their normal duties and their statements are irrelevant and does not relate to the offence.
  2. Secondly, Defense submits the Record of interview was obtained under duress and is therefore defective and flawed as it violates the Defendant’s constitutional rights under Section 36(1) and Section 41(1)(a)(b)(c) and there is no need for the court to consider this unreliable statement Defense says prior to the record of interview, the accused was abused both physically and verbally and policemen intimidated him to confess and admit to the allegation of arm robbery. Defense says police brutality is rampant and prevalent in PNG, where police use trickery and torture to terrify ignorant and uneducated citizens to obtain confessions and admissions. Defense says the Record of Interview is a typical strategy of the same brute power exerted against the accused in the same abuse of “ due process’ and violates the accused’s constitutional rights.
  3. Thirdly, Defendant further submits the evidence of exhibits such as motor vehicle insurance documents and crime scene photo graphs are inconclusive and these evidences are insufficient as the accused was never involved in the alleged armed robbery. In all the alleged crime scene photographs and motor vehicles photographs are too general and irrelevant and therefore these evidence must be accepted by the court. Defendant says these exhibits and photographs do not meet the requirement under Section 94(1A) and (1B) of the District Court Act 1963 and as such it makes these evidence unsafe for the court to rely on and thus court should not accept these evidence.
  4. Defendant finally argued on the genuineness and credibility of the Closed Circuit Television (CCTV) images. Defendant says all the crime scene indications does not contain the compulsory certificate to certify it as documents obtained lawfully for purposes of Divisions 1112 of the Evidence Act 1975.
  5. In summary Defendant’s arguments is funded on the issue of identity as the alleged Defendant was not at the scene of the alleged crime and the car which the Defendant hired was legally arranged and finally the evidence including the ROI and CCTV footages were obtained illegally and they do not comply with the requirements under the Laws that regulates how such information should be gathered and presented in court.

ANALYSIS OF THE POLICE CASE


  1. I will now asses police evidence in the form of statements contained in the police hand up brief. Statement of Constable Peter Aikel says at around 10.35am on Monday 24th day of 2021, him in the company of his colleagues namely Constable Ali Tepi and Constable Israel Bill were transporting an accused named Jack Moko Jr who was apprehended near TST at Waigani. The accused informed the policeman that he didn’t take part in the robbery but was previously part of the plan to rob the victim company.. Moreover, the policeman states another suspect namely Stanley Susuve surrounded to Police not because he was directly involved in the robbery but was involved in the buying of the iPhone that was robbed during the robbery. On the 28th August 2020, the Defendant voluntarily turned himself up at Boroko police station and informed the policeman that he did not take part in the commission of the offence but he hired the car. The suspects namely Jack Moko Jr and Stanley Susuve became persons of interest for police not because they were seen in the crime scene but they were alleged to either benefited from the crime or planned in the crime. In the same manner, the Defendant presented himself in Boroko police station because of allegation that he was part of the group that indirectly involved in the commission of the robbery against that victim Company.
  2. Statements of Detective Senior Constable Ali Tepi and Detective Senior Sergeant Joe Puana demonstrate that they were present as Police investigator and corroborator at the Police station when the Defendant was taken through the Record of Interview. Statement of Policeman Dungen Gawi indicated that he was using a Global Positioning System (GPS) and tracked down where the stolen Iphone was until it was found at Kaugere where they went and apprehended accused Gerald Hou. Other Policemen including Noel Woyengu, Israel Bill, David Yakasa, Tony Paraka and Samuel Gomoro’s statements all relates to the incident of 21st August 2020 at Property Investment and Consultant Limited at Kivoi Street, East Boroko, National Capital District. All the Police statements are conclusive and they all connect to the incident and thus there is evidence to trust that the offence of Robbery occurred at the material time.
  3. The statements of other witness namely Mark J Taganos and Jack M Rautoka contains evidence of what happened at the place of offence because they are employed by the victim company and consequently they have fallen victims to the allege robbery and therefore there is reason to believe that their statements are inline to the Policemen’s statements as both corroborates to the incident and the date.

ANASYSIS OF THE DEFENSE CASE


  1. Defense raises the issue of identity. Defendant states he was not identified by police to be the person involved in the crime. The strict rule of evidence regarding identity is important because it would be unfair if the defendant was not identified properly. I have read all the police statements and they all have indicated the Defendant was arrested because of his job in hiring a vehicle for his co accused’s to carry out a robbery. I have every reasons to believe the Defendant had not directly participated in the commission of the crime of allege arm robbery and therefore he was not seen at the crime scene but I have evidence to satisfy myself that the Defendant arranged the vehicle that was involved in the robbery.
  2. Defense also argues on the issue of non-compliance under Section 94(1A) and 94(1B), of the District Court Act, where he submit that the witness statements should not be accepted as it does not conform to the legal requirements under the declared provisions of the District Court Act. The law is follows:

94A. PENALTY FOR FALSE DECLARATION.


A person who, in relation to a statement or document referred to in

Section 94(1), knowingly makes a statement that is false or misleading in any particular is guilty of an offence.


Penalty: Imprisonment for a term not exceeding three years.


  1. On the issue of False Declaration, as it does not conform to the legal requirements under the Evidence Act, I find that the Closed Circuit Television (CCTV) footage carries images of robbery but the issue of credibility of this evidence is not my business or am not sanctioned to administer on this. In other words, am not here to test and investigate the evidence but only weighing the evidence. Testing and investigating are done by the National Court during trail. Moreover, Defense argues there is no CCTV Camera Certificate of worthiness from a qualified CCTV Artisan to confirm the verity of the photos and also there is no search warrant from Police to obtain the CCTV Images. Although I have stated above that I only administer the sufficiency of evidence, am also convinced to believe that the footages voluntarily provided by the victim company and hence the issue of search warrant is irrelevant.
  2. Defenses also submits that the Defendant was harassed, intimidated and forced by Police to give the statements after when he was brought to the Police station. Although this appears to an allegation, the statement of Detective Senior Sergeant Joe Puana sworn on 18th September 2020 at paragraph 8 states as I quote “ he was also asked if he was threatened, induced or forced during the interview to give his answers, or he have his answers on his own freewill, he replied and said he gave his answers on his own free will” (end of quote). Only after trial proper such issue would be settled as on who is telling the truth but for purposes of weighing the present evidence, there is evidence.
  3. Lastly, Defendant argued that the Motor vehicle which was used in the robbery was legally hired by the Defendant in good faith purposely for a worthy cause; however, unknown to him, the motor vehicle was used for purposes of intended for and found himself in jeopardy. Nevertheless, I have evidence to convince myself that some people gave the Defendant money to hire the car which was used in the robbery. I also have evidence to believe the Defendant already knew the reason of the vehicle hire. Therefore the hiring aspect of the car appears legal, there is evidence the motive behind the hire is questionable. Therefore, I have evidence to believe the vehicle was not hired on good faith.

DECISSION


  1. Defendant argues that Police have not met the elements of the offence of arm robbery under Section 386(1)(2)(a)(b)(c) of the Criminal Code Act Chapter 262. Defense says police fail to identify that a person identified to be the accused now in court, armed with a dangerous or abusive weapon, is in the company of another and at the time of offence uses and uses violence and threats. Defendant is lead to believing that this provision of the Criminal Code only applies to the principal offenders of crimes or persons who actually involved in the crime of arm robbery and not people who do not directly take part but indirectly involve in the planning, resourcing and coordinating. What does the Law talk about people who aid, support, coordinate and resource accused to participate in the crime of arm robbery, are they not persons of conflict with the Law? Section 7 of the Criminal Code Act, offers:
    1. 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; and

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

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

(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—


  1. I have reasonable evidence to convince myself which is consistent all through the statements presented to the court by Police through their Police hand up brief that the Defendant did not take part in the offence but he is the person who arranged a motor vehicle which was involved in the arm robbery. The Defendant is therefore deemed to be a party to the offence of arm robbery. Many courts have accepted persons who assisted in the commission of crimes as principal offenders. In State-v- Belami[5]; her honor Justice Berrigan when finding the Defendant and other parties to an offence guilty, said Section 7 of the Criminal Code Act 1974, lengthens criminal accountability to person who are party to any crime. Her honor concluded in her ruling that Section 7(1)(a)-(d)[6] applies to any person who aided, resourced and supported in the commission of an offence is equally guilty as the principal offender. Given the above, I have evidence to believe and accept the Defendant although is not a direct player to the allegation; he is a party to the offence.

CONCLUSSION


  1. I have judiciously measured the Defense submission and Prosecutions evidence enclosed in the Police Hand Up brief on the issue of sufficiency of evidence and assessed both of them compatible to the laws and I find that there is sufficient evidence to progress a prima facie case to commit the Defendant for the charge of Arm Robbery under Section 386(1)(2)(a)(b)(c) of the Criminal Code Act 1974.

ORDERS


20. Defendant is committed to stand trial in the National Court.


Public Solicitors For the defendant
Police Prosecutor For the State


[1] [2016] PGNC 335; N6555
[2] [2020] PGDC 67; DC5070
[3] [2020] PGDC 66; DC5071
[4] [2013] PGNC 297; N5187
[5] [2020] PGNC 449 N8613
[6] Criminal Code Act 1974

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