Unreported National Court Decisions
N883
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
SIMON SULU URAKEN
AND
JACK CHARLES JOKU
Waigani
Jalina AJ
14-31 May 1990
25 June 1990
CRIMINAL LAW - Evidence - Robbery - Of bank - By six armed men - In stolen vehicle - Six men caught subsequently - In possession of vehicle arms and stolen money - No proper explanation at first opportunity - Subsequent explanation - Incredible to believe - Circumstantial case - Inference to be drawn.
Cases Cited:
The following cases are cited in the judgment.
Paulus Pawa v The State [1981] PNGLR 498.
The State v Peter Noki Manda and William Henry Langer N805.
The State v Lindsay Yaboshiwa N 818.
Counsel:
M Unagui, for the State.
F Pitpit, for Simon Uraken.
M Enda, for Jack Joku.
Cur adv vult
25 June 1990
JALINA AJ:  The accuseds are charged with the following counts:
1st Count:
Simon Sulu Uraken of Aiome in Madang Province and Jack Charles Joku of Sentani in Irian Jaya are charged that they the said Simon Sulu Uraken and the said Jack Charles Joku on the 18th day of October 1989 in Papua New Guinea stole from Westpac Bank (PNG) Limited, with threat of actual violence, Seventeen Thousand, Six Hundred and Fifty-eight Kina (K17,658.00) in cash, the property of the said Westpac Bank (PNG) Limited. And at this time the said Simon Sulu Uraken and the said Jack Charles Joku were armed with dangerous weapons, namely, two firearms and two bushknives.
At the conclusion of the evidence I ordered the indictment amended to one which charged the accuseds with stealing an unspecified sum of money as there was no evidence of the actual amount stolen.
2nd Count:
And-Further that they the said Simon Sulu Uraken and the said Jack Charles Joku on the 18th day of October 1989 in Papua New Guinea, unlawfully used a motor vehicle, namely, a Ford Fairmont Sedan Reg. No. AFP 390 without the consent of the owner, one Monica Salter.
They have pleaded not guilty to the charges.
THE ALLEGATIONS
The State has alleged that on the 18 October 1989 the accuseds went to the Westpac Bank Agency at PSA Haus with four others between 9.30 and 10.00 am. When they entered the Bank they wore masks and were armed with two firearms namely a rifle and a pistol and two bushknives. There they threatened the Bank staff with the firearms and bushknives and stole the sum of K17,658.00 kina in cash. It was alleged that the money was taken from the tellers’ draws and the safe and were put into two separate handbags and then they made their getaway by the use of a motor vehicle. The State further alleged that the vehicle was the one which was stolen the previous day and was used without the consent of its owner, Monica Salter. The State alleged that later on the same day the accuseds were arrested by the police after a chase.
THE EVIDENCE
In addition to the records of the interview with the two accuseds which were tendered by the State by consent of the accuseds through their respective defence counsel, the State sought to prove its case by calling nine (9) witnesses who gave evidence orally on oath. I will deal with the records of interview later. The evidence adduced by the State is that on 18 October 1989 at about 9.15 am one Zachary Song, a Police Constable attached to the Traffic Police at Boroko and Constable Tumap and Harry Samoa stopped at Marianville High School and held a mini road block. The road block ended at about 9.45 am and they left and drove up to Sogeri National High School intending to pick up a suspect of a minor motor vehicle accident. After talking to the suspect who was a lecturer at Sogeri National High School they intended to return to the City and as they were pulling out Constable Harry Samoa, who was new to the place, asked where the road led to so they drove to a store and as they were pulling up in front of the store Constable Song sighted a Ford Falcon Sedan, white in colour, with tinted glass. The Registration No. was AFB 952 and he suspected it to have been stolen. As he stopped near the vehicle he noticed that the glass was being wound up and that the driver had big hair with beard and was wearing a small straw hat. There was another one who came in from the shop with the plastic bag in his hand and hopped into the vehicle. The person he noticed was the accused Jack Charles Joku. The vehicle then took off and made a U turn in front of them. He also made a U turn and followed the vehicle. He did not have a watch and therefore he could not tell what time it was but it must have been about 10.30 am. As he followed the vehicle he asked Constable Tumap to contact their operations room at Boroko and find out if that vehicle was stolen. It was confirmed that the vehicle was stolen the day earlier and that that morning the vehicle was used in a bank robbery. They followed the vehicle however they lost sight of it as it was travelling at high speed. As they approached 14 mile at Ilimo Farm they heard over the police radio that the vehicle they were after had been sighted by another traffic police vehicle at 9 mile. And when they came down they found the vehicle abandoned at the end of Jacksons Airport. There were many policemen and police vehicles there.
The two accuseds and four others were caught by police when they stopped the vehicle under the rain trees at the end of Jackson’s Airport and tried to flee from the vehicle. At the time the suspects were caught two bags full of money in cash were taken from one of them and later a search was made and a .22 rifle and a .32 pistol were found. Searches were made also of the accuseds and on the accused Simon Sulu Uraken Constable Toge Bou said that he found a University of PNG ID card but that card has not been tendered in court. Constable Kasil Kerenge looked at the registration label on the front windscreen of the vehicle and found its correct registration as AFP 390. The accused Simon Sulu Uraken has denied that he was a University of Papua New Guinea student at the time. After the suspects were caught they were taken to the Waigani Police Station where statements were taken from them. Record of interviews were conducted with some of them. All the police witnesses denied assaulting the accuseds badly and rendering them unconscious.
Evidence of the robbery has been given through the statement of Warren Mungau, a Bank Clerk at the Westpac Bank, Waigani, which has been tendered by consent of defence counsel. Warren Mungau said that on the morning of Wednesday 18 October 1989 he was working at Westpac Bank at PSA Haus Waigani. At about 9.00 am they opened up for business and his counterparts and him were doing their banking duties and at about 9.30 am six masked men armed with two bushknives and two guns walked into the Bank and held them up. They ordered him and the others and three (3) customers to lie on the floor while one of them forced the first officer with the knife pointed at his neck and forced him to open the safe. All the cash notes were in the draws. He could not do anything neither the security men because they each had a masked man on them so they stood helplessly. The thieves left the office about 2 1/2 minutes after they got the money. They went and drove off in a white Ford Falcon Sedan Registration No.AFB952. Mr Mungau’s evidence is the only evidence from the Bank. Thus the prosecution has proved that there was a robbery at the bank and that moneys were stolen in two (2) bags. There is no evidence from this witness by his description or otherwise as to identification of the persons who took part in that robbery as they were wearing masks. There is no evidence also as to the type and colour of any clothes the robbers were wearing at the time of the robbery.
The State sought to prove the second count through Monica Salter. She said that she is the owner of a white Ford Falcon Sedan Registration No. AFP390. She said that at about 5.30 on the afternoon of 17 October 1989 she left her shop at Ori Lavi House and went out to get into her car which was parked in front outside. She opened the door and sat in the driver’s seat. As she was about to shut the door one of the rascals appeared at her door and grabbed her by her hand which had the keys. He quitely asked her to hand over the car keys and for her to move further into the car. While he was saying that she turned to the right, kicked the door which hit the rascal at her side and bolted out of the car screaming and ran between her car and the one park next to hers.
One of the rascals ran after her trying to catch her but luckily she was quick and was able to get away from him.
There were four rascals. Two were by her door and two were on the other side. She ran upstairs, went into the shop and rang the police and reported that her car had been stolen by the rascals. There were a number of items in the car at the time it was stolen but I do not consider those things are relevant to the second count as the second count only relates to the unlawful use of the motor vehicle. About two to three days later she saw her car at Waigani Police Station. She saw the car and recognised that it was her car as it had some of the things that she had bought although at the time she took possession of the car at Waigani Police Station she realised that the number plate had been changed from the actual number plate which is specified in the second count to a false number plate AFB 952. At the time they took the car from her outside the Ori Lavi House at Boroko she did not recognise any of them let alone the two accuseds. From her evidence it can be seen that there is no doubt that she did not consent to her vehicle being taken by those rascals and that it had been unlawfully used without her consent.
May I mention, in passing, that the second count does not relate to the stealing of the vehicle on 17th October but relates to the unlawful use of that vehicle without the consent of the owner on 18th October. It would therefore appear that identification of the persons who stole the vehicle from Mrs Salter is not relevant in my view. I will deal further with this later.
Much time was spent on cross-examination of policemen regarding the chase down from Sogeri and alleged assault on the accuseds after their apprehension. The fact that the accuseds were caught by the police is not in dispute.
After the close of the State case defence counsel made a no case submission which I rejected. The accuseds then decided to give evidence on oath and to call other evidence in their defence.
THE ACCUSED SIMON URAKEN
The accused Simon Sulu Uraken gave evidence that on 17 October 1989 he went to the University of Papua New Guinea to have lunch there and then returned to his uncle’s house at Gerehu Stage 5 where he stayed until early next morning, the 18th October. On cross-examination he said that he was given a meal ticket by his cousin Jackson Kas. When asked as to whether that normally happened between his cousin and him he replied that once in a while when he did not want to prepare his lunch he normally came to the campus to have his lunch. On 18 of October 1989 he said that he went to the Administrative College to see his cousin Uto. Upon discovering that noone was at Uto’s house he decided to walk to Waigani Shopping Center. On the way he met Uto and both of them then returned to Uto’s house, drank water, chewed betelnut and then he left Uto to go to 14 mile (Ilimo) to see Roti, his sister, as he wanted some money to buy himself a pair of shoes. Uto gave him K2.00 and he walked to Waigani Shopping Center where he bought a Pepsi and drank. Then he walked up to the bus stop near the police station at Waigani where he caught a PMV to Gordons. At Gordons he went to the market where he met up with June David a friend of his whom he had met through Outreach (a Christian Organisation) some years earlier. They wandered around at Gordons Market bought and ate fruit and then they went to the supermarket where they bought drinks and they drank. After that they came to the bus stop and Uraken caught a bus and left for 14 mile. It was about 11.30 a.m. At 14 mile he went and checked at the place where his sister worked but was told that his sister was still working so he came back to the main bus stop opposite the petrol station. While he was standing there he saw this white vehicle coming down from Bluff-Inn road stop beside him. Inside he saw Michael Sine Gola who told him to get in the vehicle so without rejecting he decided to jump in. He did not know that the vehicle was stolen until after he was arrested. He sat with Michael Sine at the back. On cross - examination he said that because his sister was working at the factory and he wanted to see her at lunch time he came to the bus stop at 14 mile. Although he went to see his sister for some money to buy a pair of shoes he did not wait for her outside the factory until she came out for lunch, but instead jumped in the car because Michael Sine was his best friend and for the sake of the car he jumped in.
He waited at the bus stop for 3 minutes before he was picked up and the actual pick-up took up 15 seconds - a very very quick pick-up. He did not enquire as to whose vehicle it was that Michael Sine was travelling in because Michael Sine was with the other guys and he knew it was the other guy’s vehicle. Michael Sine did not introduce him to the others but merely mentioned his name. He did not ask Michael Sine where they were coming from.
He said that he knew Michael Sine because both of them play in the opposing rugby teams as well as through some of Michael Sine’s cousins who play in the same team as him. He does not know Michael Sine apart from those types of association.
It is surprising that the accused and Michael Sine who play in opposing teams have become best of friends. It is understandable that if two persons played in the same team that they would become best of friends but very seldom otherwise.
When they were approaching the main junction of Hiritano Highway and Sogeri road there was an unmarked police vehicle from which a beer bottle was thrown at the windscreen and he was shocked to see it land on the windscreen. They drove further down towards Port Moresby and before they approached the junction to the gas turbine there were a number of police vehicles which were driving in the opposite direction, made U turn and followed them. When they were approaching the bridge at the end of the Airport they saw a marked police Toyota Land Cruiser parked on the right hand side of the road and a gunman shot directly at them and the bullet went in and out of both right and left windscreen and they ducked and the bullet missed them. As they went over the bridge there were more police vehicles going in the opposite direction. Their vehicle then came and stopped under the rain trees at the end of Jacksons Airport. Because the police had fired at them and because he has heard about police brutality in the past he decided to run away from the police rather than wait to find out what the police would do to him. He said that he went to the wildlife so that people out there could see him and witness him so that there would not be any police brutalities. He was caught by three (3) policemen when he was approaching the wildlife. The first one who gave evidence against him (i.e. Sepe Golu) searched him but could not find anything in his pocket. There was not even a UPNG ID card. Then the three (3) of them started punching him but he told them that he was now in the hands of the police and that could they please take him up to the police vehicle but they refused and started kicking him here and there. A policemen who he could not recognise at the time threw two (2) bottles of beer and smashed them on the centre right side of his head and they broke. Then he fought with the one who threw the bottle at him. They tore his shirt and tied his two hands behind his back and beat him until he was bleeding all over his body. They then carried him up to the dirt road and threw him into an unmarked police vehicle and taken to Waigani Police Station where he saw that the other five of his friends were also badly beaten. He also said that he was beaten across his spine with a branch of a tree which was as long as a 300cm ruler.
On cross-examination he denied that he went to Sogeri with the others and also that he knew that the vehicle was being chased at 14 mile. In regard to the bottles of beer he said on cross-examination that they were full bottles of beer. He denied seeing any green bags in the vehicle. He also denied seeing the other five (5) people in the vehicle holding anything.
There were two (2) records of interview conducted with the accused Simon Uraken. The first was on 18th October and the second one was on 28th October. In the interview conducted by Constable Rokipa with the accused on 18th October the following questions were asked and answers given:
Q15.   Can you tell me where do you live?
Ans.    I stayed around UPNG but I use to live at Gerehu.
Q16.   You said that you living at Gerehu. Can you tell me which people you are living with?
Ans.    My adopted family (father and mother).
Q17.   Is it true that you are a student at UPNG?
Ans.    Yes.
Q18.   Can you tell me how many years you have been attending school at UPNG?
Ans.    One year.
Q19.   At this moment are you attending classes or not?
Ans.    Yes.
Q20.   Simon on the 18th day of October 1989 Thursday between the hours of 6 am and 9.30 am were did you go?
Ans.    In the morning I was at home, but about 9am I came to Admin. College to visit my cousin.
Q21.   After you visited your cousin did you go other places?
Ans.    No.
Q22.   Can you tell me where did the police pick you up and brought you to the police station?
Ans.    Police pick me up from DPI, station along Hiritano Highway.
After that he refused to answer any further questions.
In the record of interview conducted by Constable Wowe with the accused on 28th October the following questions were asked and answers given:
Q 9.    What are you doing here in Moresby?
A.       I am attending a school at University.
Q10    Do you resides at University or some where in Moresby?
A.       Before I resides at University but now I am residing at Gerehu.
Q11.   Where were you in the morning on the 17 of October 1989?
A.       I was at Gerehu in the morning.
Q12.   Whom were you staying with?
A.       I stayed at Gerehu with my adopted parents.
Q13.   What are the names of your adopted parents?
A.       Mrs & Mrs Philip Ikop.
Q14.   Did you go any where during that day?
A.       In the morning I was at Gerehu but at lunch time I came to University and eat my lunch than I went back to Gerehu.
Q15.   Than on Wednesday the 18 October 1989 where did you go in the morning?
A.       I was in the house.
Q16.   Did you go any where?
A.       I came to my cousins house at Admin. College.
Q17.   What is your cousin’s name?
A.       Mr Uto.
Q18.   When you came to his house, was he present?
A.       He wasn’t present at the house.
Q19.   When you found out that your cousin was not at home, where did you go?
A.       I came to the Catholic Church at Waigani and met him there.
Q20.   After that where did you go?
A.       After that I will not tell you any thing.
After that he refused to answer any further questions.
May I mention, in passing, that while it is his Constitutional right to remain silent, he has had two (2) opportunities to give and explanation to the police but he did not. I will elaborate on this later in this judgment.
JUNE DAVID FOR URAKEN
June David gave evidence on be half of the accused Simon Sulu Uraken. He said that he had known the accused for about three (3) years. He had first met him during Outreach (kind of church gathering ) when the accused changed his heart for the first time so both of them attended regular Sunday services together. At that time the accused was an active member of the Church. On the morning of the 18th of October June David had gone to his auntie Naki Sam’s house where they had prayer meeting. From there he came down to Gordons market where he met the accused Simon Sulu Uraken. When he met him it was the first time after a year that he saw him as the accused had gone away from Port Moresby. He could not say whether at that time the accused was still a faithful church follower. He said that at Gordons market they walked around the market, bought some ripe bananas, peanuts and then they went and bought vita soft drinks; each one bought his own drinks. After that they went back, walked around at Gordons market and then as the accused was going through to see his sister at 14 mile for some money to buy a pair of shoes they came to the bus stop where the accused got the bus and went to 14 mile. He went back to Naki Sam’s house.
MICHAEL SINE GOLA FOR URAKEN
Michael Sine Gola is currently serving five (5) years imprisonment after pleading guilty to robbery which is the subject of the present charge on the two accuseds. Michael Sine Gola comes from the Chimbu Province whilst the accused Simon Sulu Uraken comes from the Madang Province. Simon Uraken’s mother come from Gumine in the Chimbu Province. Michael Sine Gola said that he had known the accused before the 18 of October 1989. He had come to know him through the rugby competition as they both play off-season rugby matches in Morata. He had in fact gone to Simon’s house at Gerehu Stage 5 at least four times. That is two times in 1988 and two times in 1989. He said that on the morning of 18 October 1989 he was in his house at Morata and five youths (but not the accuse Simon Sulu Uraken and Jack Charles Joku) picked him up and they went to Waigani and robbed the Westpac Bank at the PSA Haus. Then they drove back to the University of Papua New Guinea Campus. At the UPNG Campus three youths who were from the Goilala Area left and went to Gerehu leaving him with Joash Harry and one other. There was no one to drive the car so Joash Harry went and they parked outside the dining hall. Joash Harry then went and asked the accused Jack Charles Joku to come and drive the vehicle. The accused Jack Joku drove the vehicle and they went up to Sogeri travelling via the City Hall, Boroko Motors, Wards Cinema down to Gordons and they went up to Sogeri. At Bluff Inn on their way to Sogeri they refuelled. At Sogeri he went and bought two cartons of beer and some food and returned to the car. Joash Harry saw James Noan and he asked him to come and jump in the car because he was a student who he knew so he (James Noan) came and jumped in the car. He jumped in the car and they came to 14 mile. At 14 mile he told the driver to stop as there was a brother he had known and that they should stop and pick up. This brother was Simon Uraken. When he told the driver to stop, Simon Uraken was at the Service Station where they stopped, picked him up and dropped him off. May I mention that when Michael Sine mentioned this I noted that it put defence counsel Mr Pitpit in a bit of trouble thus causing Mr Pitpit to ask him whether they dropped Uraken off and he the corrected himself that they picked Uraken up. Michael Sine then said that on their way down he was sitting at the back on the left hand side and when they picked Uraken up Uraken was sitting at the back in the middle.
It must be noted here that Uraken said that he was standing at the bus stop opposite the service station while Michael Sine Gola said that Uraken was standing at the Service Station and in this respect I take judicial notice of the fact that the service station is on the left side in the direction of Sogeri and the bus stop is directly opposite it at 14 mile. He admitted that they saw the police vehicle up at Sogeri but he denied that they were running away from the police and driving fast from between Sogeri and 14 mile when they were coming down. When they reached 14 mile he saw the accused Simon Uraken standing at the Service Station near the shop and he told the driver Jack Joku to pull up and they pick the accused Simon Uraken. On their way to Moresby at 9 mile they saw three (3) unmarked police vehicles. The vehicles went and turned around and were signaling for them to stop. From there they stated speeding. On the way they saw other police vehicles and near the bridge at the end of Jackson’s Airport they were fired on by the police and they came and stopped the vehicle under the rain trees leading to the Moitaka DPI Station at the end of the Jacksons Airport and fled into the bushes. They were then chased and caught by the police. He denied that he was afraid of the police from Sogeri down and the reason he gave was that he had the gun and pistol. He admitted that the two bags of money, the knives and the guns which were found by the police where the guns and knives used by him and others in the robbery and the monies found in the bags were the moneys that they robbed from the Westpac Waigani Branch Agency at PSA Haus. It must be noted here that Simon Uraken does not mention anything about the three (3) unmarked police vehicles at 9 mile and the police signalling for them to stop and then speeding. It must also be noted that Michael Sine Gola does not mention anything about the exact place they picked up Uraken at 14 mile nor does he mention bottles being thrown at them at the junction of Sogeri Road and Hiritano Highway.
Apart from admitting to the robbery Michael Sine Gola only claims to have known two (2) of the 5 youths who went to his house at Morata on the morning of 18th October and yet he jumped into the vehicle without question.
THE ACCUSED JACK CHARLES JOKU
The accused Jack Charles Joku gave evidence in his own defence that on the morning of the 18 of October 1989 he wrote letter of appeal to the University Vice-Counsellor and took it to a friend of his who is a typist at the University Administration to type. After giving her the letter for typing he came and was seated close to the road up at the forum area. When he was there a white car pulled up at the side. It was a Ford Falcon with dark glass. He did not know the driver but he know the person sitting next to the driver. He was a student by the name of Joash Harry. Joash Harry told him to climb on the vehicle and the accused (Joku) asked whose vehicle it was and was told that it belonged to a friend. Joash asked him if he had a class one licence and he (Joku) replied that he had. Joash Harry then asked him to drive the car. He took over driving at Luavi House and they proceeded to town. He remembered following the highway past Germania Club and then past the City Hall to Boroko Motors and they turned down towards Wards Cinema and around AOG Church opposite Gordons High School and then to Sogeri. On the way to Sogeri they stopped at the service station at Bluff-Inn and Joash Harry gave him K5.00 for fuel and they refuelled and got a pint of oil. He put the oil into the engine himself. The engine was hot so it took them 5-10 minutes at the service station. At Sogeri there was someone at the back who wanted to buy some beer so they went to the shop past Sogeri National High School and the person bought a carton of beer and some food. He bought the beer first because the beer outlet was different from where he bought the food. When he was in the shop the police vehicle came. There were three (3) policemen in the vehicle. The others at the back opened the beer and were drinking so they asked him to wind the glass up. When the person who went to buy food came out he came with someone he knew as James Henry who was also a student at the University. He asked for a lift so they agreed to give a lift back to campus. He then drove the Ford back to Moresby.
It must be noted at this point that the Michael Sine Gola mentioned two (2) cartons of beer while the accused Jack Joku has mentioned one carton.
Jack Joku went on to say that the police vehicle did not chase them nor put on the siren and that he was driving normally between the speed of 60-70km per hour some times less around the bends. He did not know the police vehicle come after them.
They came and at 14 mile a person at the back told him to stop as he saw someone at the side of the road and he wanted to be picked up or talked to. The person was only introduced to him as Simon. Simon got in at the back and they proceeded to Port Moresby. At 9 mile cemetery he saw a long line of cars both police and civilian. Some of the men had their hands out signalling to stop the car he was driving. At the junction of 9 mile and the Show Ground there were a lot of unmarked cars. He saw them throw a coke bottle at their car. He also saw some more things being thrown at the car. He did not stop as the others told him to continue driving.
May I pause here to mention that Uraken said that a beer bottle was thrown; not a coke bottle. He does not say anything about the bottle hitting the windscreen which, if true, could have had some drastic effect on the windscreen such as breaking it bearing in mind that their vehicle was in motion yet there is no evidence of damage to the front windscreen.
Before they approached the bridge at the end of Jackson’s Airport he saw a rifleman stationed at the back of a vehicle. He was armed and aimed and followed the vehicle and as he came parallel the rifleman fired. The rifleman was less than 15 meters away. He heard the glass crack at the back of his head and smelled smoke like sulphur. He then went and parked the vehicle under the rain trees and they ran for their lives. There were many policemen around there. He ran away and his eyes were blinded by teargas. When he could not run any more he stopped and put his hands up. Police pointed a gun at him and another told him to kill him. Someone hit him with a bottle on his head but he could not remember if it was a coke bottle or beer bottle. He fell down and the policemen with the gun belted him all over his body and he thought the policeman was trying to break his leg. He had his head continuously kicked and to stop this he grabbed on to the policeman’s boots and begged for them to stop. But they did not stop. Someone took a pair of pliers and pulled his ear up and when he screamed in pain somebody sprayed mace directly into his eyes; nose and mouth. He ran short of breath and lost consciousness. He woke up at Waigani Police Station and felt that he was badly bruised. In his record of interview conducted with Constable Ali on 18 October 1989 the following questions were asked and answers given:
Q18.   Can you tell me where you were this morning at about 9.00 am to 12.00 noon?
Ans.    I came to University from Gerehu then went for a ride with my friends in a stolen car and then police caught us.
Q19.   Who are your friends names can you name them?
Ans.    Me and the other five (5) guys, I can’t remember the names.
Q20.   Can you tell me in your own words where you got his car from?
Ans.    I refuse to comment.
Q21.   Police got an information that were identified this morning at about 9.30 am with your five friends at Westpac Bank, Waigani Branch, what can you say about this?
Ans.    No comment.
Q22.   You five (5) were all armed with a pistol and a shotgun and also bushknives, whilst you wore the mask, what can you tell me about this?
Ans.    No comment.
Q23.   Whilst you were armed, you robbed the money off the Westpac Bank and then escaped in that stolen vehicle. What have you got to say about this?
Ans.    No comment.
Q24.   You were apprehended by the police at the scene where you were chased and caught. Some amount of cash money was found in the vehicle, can you tell me how it ended up in your vehicle?
Ans.    No comment. I don’t know.
Q25.   I now show you the cash money that was found in the car that you drove. The money is about K13,000. (money shown) What can you tell me about this?
Ans.    I refuse to comment.
Q26.   What did you intend to do with this money?
Ans.    I don’t know.
Q27.   I would like to show you two firearms that were also found with you at the time you were apprehended by the police. 1 Automatic Colt .32 calibre serial No 130647 and Winchester .22 calibre-model No 64 (shown). Can you identify them both and have you seen them?
Ans.    No, I refuse to comment.
Q28.   I would like to show you a mask that was also found in the vehicle you drove (shown). What can you tell me about it?
Ans.    I don’t know where it came from. Maybe from the Riot Squad Police.
Q29.   I would like to show you also the three handbags, some personal clothes that were also found in the car. (shown) What can you tell me about them?
Ans.    No answer.
Q30.   I would like to show you also the car that is believed to be stolen by you and was also used in this matter of robbery at the Westpac Bank (shown). I believe that you have a lot to tell me. What can you say about that?
Ans.    Yes, that is the car.
Q31.   I have just shown you the motor vehicle, Ford Fairmont Sedan, white in colour, Registration No AFB 952, dark glass, is that right?
Ans.    Yes, I think so.
Q32.   Is there anything further that you wish to tell me about this matter?
Ans.    No.
Q33.   What was your intention for stealing this motor vehicle or the car?
Ans.    No intentions.
Q34.   I make it clear to you and ask you again, what was your reason for stealing this car?
Ans.    I don’t know.
Apart from the few answers referred to above, the accused Jack Joku refused to answer the questions asked by the police.
On cross-examination he said that the white Falcon came and stopped close to where he was sitting. He was just sitting there with no special purpose. The driver was there when the vehicle came and stopped where he was sitting. He was not introduced to the driver nor did he ask who the driver was. He did not introduce himself to the driver.
May I again pause here to mention that this accused’s evidence conflicts with that of Michael Sine Gola in that Sine Gola said they stopped outside the dinning hall and he went and looked for Jack Joku and found him and came back. That was after the Goilalas, one of whom was the driver, had left. But Joku says that he was sitting near the road outside the forum area and Joash Harry came in the white car and stopped and asked him if he had a class one licence and when he (Joku) replied that he did, then Joash Harry asked him to drive. The person who drove the car was still in the vehicle when they met Joku and Joku took over the driving at Luavi House.
Also on cross-examination Joku admitted that he does not know Joash Harry that well. They sometimes greeted each other and they never went out drinking together.
He denied seeing any firearms, bags or bushknives in the vehicle when they were driving from the University to Sogeri although Michael Sine said they were in the vehicle at the back with him. He (Joku) agreed that he was apprehended together with the others.
At the close of the defence case defence counsel made their submissions in which the following are not disputed by the two accuseds.
1.       That a white Ford Falcon Sedan Registration No AFP 390 was stolen from its owner Monica Salter outside Ori Lavi House, Boroko, on the afternoon of 17 October 1989.
2.       That between 9.30 and 10.00 am on 18 October 1989 at PSA Haus Waigani six masked men armed with a rifle, a pistol and two bushknives entered the Westpac Bank Agency, held up the employees and stole a large sum of money. After stealing the money the robbers got away in a vehicle which at that time was seen by Warren Mungau as a white Ford Falcon Sedan Registration No AFB 952.
3.       Between 10.00 and 11.30 am the vehicle was sighted at Sogeri by traffic police who chased it down and which the accuseds and four (4) others abandoned at the end of the Airport and they tried to flee whereupon they were chased by the police and caught.
That from the persons who were fleeing and caught, the police took from one of them two bags containing large sums of money.
4.       A search by the police in the area revealed a .22 rifle, a .32 automatic pistol, a bushknife and a police gas mask.
5.       The two accuseds and four (4) others were then taken to Waigani Police Station.
From the evidence it can be seen that there is no direct evidence that the accuseds robbed the bank. They do not deny that they were caught by the police and that the money and the arms were found in the vehicle they were travelling in but they have raised a sort of alibi to say that they did not take part in the actual robbery but only became a passenger and driver respectively later. The defence therefore says that I should acquit them as it is dangerous to convict on circumstantial evidence. The State submits that they are telling lies and that I should draw an inference that they robbed the bank as well as unlawfully used the vehicle and convict them.
The case against the accused is certainly circumstantial. The law relating to circumstantial evidence is as contained in the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 where Andrew J said at p 501:
“I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 when he said:
‘I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen (1975) 50 ALJR 108 at p 117:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King (1911) 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v The Queen (1963) 110 CLR 234 at p 252; see also Thomas v The Queen (1960) 102 CLR 584 at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v The Queen at p 661. These principles are well settled in Australia.’“
From that decision of our Supreme Court it seems that these principles are also well settled in Papua New Guinea.
This was recently followed by Hinchliffe J in The State v Peter Noki Manda and William Henry Langer N805. I warn myself of the dangers of convicting on circumstantial evidence.
From the conflict in evidence between the two accuseds and Michael Sine Gola which I have pointed out above, coupled with each of them not knowing each other and the other robbers well, it is difficult to find that strangers would quickly, without any question and without any hesitation, jump on the bandwagon and go along to commit a serious crime. It is also unnatural to find that three of the robbers who came from Goilala would easily take off, leaving virtually all the proceeds of the robbery to the other three (3), and then the two accuseds and James Noan (who again did not know each other well) would readily jump in the vehicle to make up the number to the original six (6) who took part in the robbery that morning.
The record of interview is also important. Whilst it is their constitutional right to remain silent, the two accuseds have been very selective with their answers. They either answered the questions or refused to answer altogether. They chose to answer those questions that would be beneficial to them and refused to answer those that were not. If they did not take part, why did they not say so to the police. As has been pointed out the accused Simon Uraken refused to answer on the 18th and then 10 days later on 28th October he chose to just give part of the answers. He did not want to go further to say what he did after he met Uto at Admin. College. He had more than one opportunity to give an explanation. If he really went and saw Uto, Uto was not called to give evidence. A similar course was adopted by Jack Joku in his answers to questions by police.
In respect of failure to give an explanation it was said by Andrew J (as he then was) in the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 at p 504:
“An innocent man charged with a crime or with any conduct reflecting upon his reputation, can be expected to refute the allegation as soon as he can by giving his own version of what happened.” (see R v Sparrow (1973) 57 CR App 352)”.
This passage was applied by me in my judgment early this year in The State v Lindsay Yaboshiwa N818, a case concerned with circumstantial evidence of robbery.
As they have failed to give an explanation consistent with innocence at their earliest opportunity coupled with the conflicts in their evidence, I find their evidence incredible to believe. I attach little weight to the accused’s evidence as well as that of Michael Sine Gola. I also attach little weight to the evidence of June David in the absence of evidence from Uto. The result of this is that I do not believe them. I find that the accuseds committed the robbery and that they have lied to this Court. Whether or not they should be charged for perjury is a matter for the State.
I find that from the fact that they mentioned names of fellow robbers who could not be questioned by the State; they discussed their defence while they were in custody at Bomana and plotted it by separating each other all over the place from the University to Sogeri and then to Ilimo. I find that they planned the robbery and that the two accuseds now before the Court, Michael Sine Gola and the others, committed the robbery. If they did not plan it, how is it that they had six people enter the bank? Three went away and within a short space of time they found another three persons to make up the number to six again. Their story is not worthy of belief. No reasonable person would believe such a story. As there is no admission in the record of interview, their evidence of assault by police does not go to verdict. It may be relevant on sentence.
In regard to the second count, the lack of evidence of identification of the accuseds on 17th October by Monica Salter is irrelevant. The charge is not one for stealing the motor vehicle but for unlawful use without the consent of the owner. The relevant time to consider is the time of use of the motor vehicle although the circumstances leading up to its use may also be taken into account. From the evidence of Monica Salter it can be seen that it was forcibly taken from her outside Ori Lavi House on 17th October and she did not see it until after three (3) to four (4) days at Waigani Police Station. Its correct registration number had been identified by Kasil Kerenge and Mrs Salter herself. In the record of interview Jack Joku admitted to the vehicle having been stolen. There is therefore no doubt in my inferring that she did not give her consent to the vehicle being used by the accuseds on 18 October 1989.
From the foregoing therefore there is no danger in my convicting on circumstantial evidence and as such I am satisfied beyond reasonable doubt that the accuseds and others robbed the Westpac Bank on 18th October and that they unlawfully used the motor vehicle without the consent of its owner, Monica Salter. I find both accuseds guilty on both counts.
Lawyer for the State: Public Prosecutor.
Lawyer for Simon Uraken: Public Solicitor.
Lawyer for Jack Joku: Martin Enda, Lawyers.