State v Yabuoh [1995] PGNC 17; N1719 (16 May 1995)

Unreported National Court Decisions

N1719

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1505 OF 1995
THE STATE
-V-
KAIYO WENDBUOH

Goroka

Sakora J
3-5 May 1995
12 May 1995
16 May 1995

Counsel

Ms Johnson for the State

Mget for the Defence

DECISION

16 May 1995

The accused is charged with two counts: one armed robbery, and the other and the alternative charge of receiving (stolen monies the proceeds of the first). During the trial which took five days a voire dire prings were undertaken, at , at the end of which the subject as being voluntarily made. The State called three witnesses: an accomplice presently serving a sentence at Bundaira prison, and the tlice investigation officersicers. For the Defence the accused himself gave an unsworn statement from the dock.

The State case was that prior to the commission of the offence of armed robbery of the Westpac bank, Kainantu branch, on 3 May 1990, one Obert Megao visited the accused one night at his home and told him of hid intention and plan. The accused was then an employee of the bank as a teller. The accused was requested to provide information about the bank manager and the accountant. He also requested by Obert to draw up a sketch of the bank.

The information was requested on the basis that if the intended robbery was successful he, the accused, would be given a share of the proceeds. The next day, Obert and a group of men went into Kainantu township, and into the Westpac bank, and he accused told them to wait outside. During lunch break the accused came out and met Obert and these other men, bringing them lunch. He then drew sketch of the interior of the bank. He also described the accountant and where he sat in the bank. Information was given to these men as to who left the bank last at the end of the day, who kept the keys to the doors of the bank, those responsible for or incharge of opening the safe, and what route the accountant took to go home in the afternoons, and the time he left the bank.

At 1:00pm when the accused went back to work, Obert and the other young men followed him into the bank a bit later. It was then that the accused pointed out the Manager and Accountant to these men. On 3 May 1990, Obert and the same group of men came into Kainantu about 5:00pm. They waited along the road leading to Wetpac bank flats, and held up the Accountant and another bank teller who were on their way home. They ordered the two into the vehicle that they had come in, and drove to the Kainantu golf course. Then they asked the Accountant and the teller questions in relation to the bank safe. They then drove to another bank teller’s residence with the Accountant and the teller. This second teller was then forced to get into vehicle and the party drove to the Westpac bank.

At the bank the Accountant opened the gate premises from the back, and the back door, and they all entered. The Accountant and the tellers opened the safe, and the bags of money were loaded onto Yonki. They stopped at a place called Konkua, and it was discovered there that the money bags contained coins only. So they got back into the vehicle and drove back to Kainantu. They got the Accountant to open the gate and door of the back door again. This time they went through the different compartments of the safe and got all the notes. Then they drove towards Konpri. On the way the three bankers were dropped of at the Okapa junction on the main highway.

Some days later the accused received his hare of the armed robbery, which the State alleged, came to K29,000.00. He received this money from Obert.

Under this circumstances the State alleges that the accused was and is a principal offender to the armed robbery on May 1990 pursuant to s.7 of the Criminal Code (CCA), or, in the alternative, received the sum of K29,000.00 knowing that the money was stolen in the armed robbery.

STATE EVIDENCE

The evidence of State witness Kifa Singkano provides the direct factual connection between the accused and the armed robbery in question. This witness is a co-accused whose case has already been dealt with (by another national Court) and is presently serving his sentence for this offence at Bundaira. He (the witness) was “in” with the rest of the gang from the outset, and so was there when the accused was approach and “recruited as” it were, for his”inside” knowledge. The evidence describes the initial planning: the accused providing sketch plan of the interior of the bank and the information about senior personnel in the bank. Thus, the witness had met the accused before the robbery with the other gang members, and after the crime when contact was made in relation to his share of the proceeds.

Defence endeavoured to attack the credibility of this witness, suggesting motives other than the telling of the truth. The witness had explained that the plan, upon his arrest, had been for the other gang members and the accused to attend to and help with his (witness’s) legal problems. However, it appeared that this did not eventuate and he had been abandoned to take the blame while the accused and others remained free at large. But he maintained that his telling the truth now was not motivated by a which to “revenge” by falsely accusing this accused.

I accept the evidence of this witness and dismiss the suggestion of the Defence as being made without any factual basis. What he says in his evidence about the involvement of the accused in this robbery is well corroborated by the accused himself in his confessional statement on January 1994, which statement was admitted into evidence as being voluntarily made, following objection by the learned counsel for the Defence and the conduct of a voire dire.

Sgt. Cedric Moroutu and Snr. Const. Koboi gave evidence of the arrest of the accused and the obtaining of the confessional statement and the conduct of the record interview. The accused was no complete stranger to the two policemen who were and are attached to the C.I.D., Kainantu Police.

At the close of the State case the Defence indicated that the accused which to make an unsworn statement for the dock in the due exercise of his rights. However, all that the accused said was:

Your Honour, since you have the confessional statement as voluntary admission, I have nothing to say at this stage.

The Defence then called no witnesses to give evidence. But from the record of interview and the confessional statement (Exhibits “A and C” respectively), the court notes the following explainations of the accused for his involvement. He asserts that was threatened not to divulge the planned robbery or else he would be killed, and that he would be sharing in the proceeds if the robbery were successful.

There is, of course, no independent evidence on these assertions, especially the treat. I discount the threat as being real and capable of being carried out because the accused seems to have found no difficulty in communicating freely with the police about his involvement, after the event. This appears from the evidence of Sgt. Moroutu;

Prior to his arrest on 30/12/93 a police informant approached me at CID

Office, Kainantu. He produces a letter to me written by the accused. After reading the letter I proceeded with the informant to Kanampa village in the Barolla area, on the highway. The police informant went to the village and came out with the accused to the police vehicle. I spoke to the accused, and he told me I should give him ample time, give him two weeks, to prepare himself so I could be arrest him on the 30^th. On 30/12 I was rostered on the Xmas – New Year operations. After I resumed duty at 6:00pm I proceeded to Barolla about 7 in the evening, in a police vehicle, I was driving it. I did not ask for another vehicle and called out to him, his house is just across the road. He came over with his wife to the police vehicle. Upon arrival I arrested him, explaining to him I was arresting him on the suspicion of the Westpac bank robbery. And I cautioned him. After his arrest I asked him if he understood the reason for his arrest, he said “Yes”. I told him he would have to come with us to the Police Station. He made the request for his wife to accompany us.....

Neither this policeman nor the State witness, the accomplice Kifa Singkano, were asked questions in their respective cross-examinations on the issue of threats and promises by the gang members, or in particular Obert Megao, the defacto leader. And the witness Kifa Singano gave evidence of the meetings of the group with the accused during the planning stage when the accused bough food and drinks for lunch on one occasion. The accused had also given this witness money for bus fare. They were acquainted with each other before the approach for assistance in the planning for the robbery. The State evidence on these were not discredited in cross-examination or displaced by credible evidence to the contrary. Thus, the picture that emerges is someone who knew perfectly well what he was doing, and why, in an air of co-operative and willing participation. So much so that, if there had been any threats of the nature alleged by the accused, which I hold not to be so, these quickly evaporated with the promise and prospect of reward and benefit from successful criminal enterprise. He said he received K25,000.00 cash with another person and he himself spent only K8,000.00 of this (from his statements). But the witness Kifa Singkano said in his sworn oral evidence that he had gone to the accused later and enquired as to whether he had received K30,000.00.

The State charged him with receiving K29,000.00.

THE LAW

The accused is charged firstly as a principle offender under s7 CCA.

The pertinent part of the provision is s.7 (1)(b) reads;

(1) &#16en an offence is commitommitted, 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) &#160......

(b)&#160 y person rho does or omits mits to do any act for the purpose of enabling orng an pers comme offence.., and

(c) ...; ...............

>

(d) &##160;......

T

There is an abundance of case law on various categories of principal offenders under s.7 CCA. Many of these are canvassed by the learned authors of Criminal Lawancticeapua Neua New Guiw Guinea (nea (2^nd ed) LBC, pp.295- 300

In the alternative the accused has been charged with “receiving”.

Section 410 (1) CCA reads as follows;

(1) ـ&#1 persoperson who who receives anything that has been obtained by means of-

(a) ҈& any acty act constconstituting an indictable off

) &##160;; .....

>

&#16> knowing it to have been so n so obtained, is guilty of a crime.

Sub-se (4) e pron is in the the following terms:

(4) For the pure purposespos p of proving the receiving of anything for the purpose of this section, it is sufficient to show that the accused person-

(a) hls, ain jo stthr peeson, son, had had the tthe thing hing in his possession., or

(b) &#160 aidsd in concealing iing it or disposi itNow backhe fiount of the indictmdictment, ent, what what is this the evie evidence on this? What did the accused do or not do that enabled or aide gangob thtpac bank asnk as they they did? did? This calls for looking carefully at the evidence of the accomplice already serving sentence, and has given evidence on behalf of the State, and also the accused’s admitted (into evidence) confessional statement.

The evidence of the accomplice, Kifa Singkano, basically was that before the date/night of the robbery, he and the robbery, he and the other gang members came into Kainantu town to see the accused. The accused came out of the bank at lunch, bought food and drinks and shared these with them. He then “told us about the accountant finished work he kept the keys himself, taking these to his house. They were advised, therefore, that he (the accountant) could be held up and the money taken from the bank. The accused also told them, showed them, the flats where the accountant lived.

After lunch the accused went back into the bank for work, the gang members followed him inside. They were then indicated, by the accused, who the accountant was, and they left for their village. The accused’s own confessional statement (p.1 Exhibit “C”) confirm the State witnesses evidence on this, as well as detailing provision of the sketch plan of the premises and other information. The evidence also demonstrate that the accused was no mere stranger to the gang members but rather an acquaintance of theirs through his employment with the bank.

How did all these enable or aid the commission of the offence? It is an undisputed fact, of course, that the accused was a teller in the employ of this bank for a period of time it’s Kainantu branch, and at the relevant time. He, therefore, was the only person in this criminal group most familiar with the physical layout of the subject premises and the personnel working there. Moreover, he was familiar with the work habits and practices of the bank personnel, and had information on their residences, home environment etc. That is exactly why the gang leader Obert Megao, visited the accused at his home one night prior to the robbery, telling him (accused) of the plan and seeking his assistance.

The robbery was planned for the night execution, and the gang had to gain entry into the premises, into the safes. The accountant who had the physical custody and control of the keys to these was very important and crucial conduit

Thus, the accused was an equally important and crucial conduit to the planning and execution of this criminal enterprise: for the provision of information, sketch plan and advice. And these enabled the gang to get to the accountant at the most appropriate and propitious time to then get into the bank and get the money.

The provision of the pertinent information, sketch map/plan, and other necessary advise, as he did and ad amply demonstrated by the unchallenged evidence of the State, enabled and aided the commission of this offence in the way s.7(1)(b) CCA envisages. The accused is, therefore, brought under the umbrella of this provision as a principal offender. Both by act and omission (by not divulging this conspiracy to the bank officials and the proper law enforcement agencies), on his own conscious part, this criminal enterprise was allowed to progress uninhibited to successful execution.

In respect of the accused’s “passing” suggestion about being threatened, which matter I have already adverted to here, I find no threats having been made to compel the accused’s involvement here. It is my respectful opinion that a citation of the pertinent provision under s.32 CCA will dispel any lingering doubt(s) about his point:

23. ;&#16stificationation and eand excuse: Complulsion.

(1) ;ټ A persoperson is n is not criminally responsible for an ant or omission done de-a).............

b)............

c).p>c)..................

d) when he does or omits to do the act-

(i) &##160;; i60; in orde order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him be perctually present and in a position to execute the threats., and

(ii) &160; #160; ¦&#1elieves himself tolf to be unable otherwise to escape the carrying of the threats into execution,

...

(underlining mine)

In any case, defenhe de of complusion, was never “fairlyairly rais raiseded” during the course of this trial. Apart from the passing reference by the accused himself, as I have alluded to here, the learned counsel for the accused mentioned this only in his oral submission, in clear breach of the rule in Browne –v- Dunn (1894) 6 R 67, HL, and many cases on the subject in this jurisdiction.

In the end result, even if I were to discount the evidence of the accomplice Kifa Singkano as not worthy of credit as urged upon me by the defence. I would nevertherless, have reached the same conclusion, same verdict, acting on the accused’s own confessional statement, voluntarily made admitting his role in the commission of this offence. And the verdict of this court is that is guilty of robbery as charged.

The court notes that if the verdict had been otherwise on this first count, the court would have surely and safely returned a verdict of guilty on the alternate count of “receiving”.

I therefore, convict the accused of the offence of the robbery pursuant to s.386(1) and(2)(a) CCA.

Lawyer for the State: Public Prosecutor

Lawyer for the Defence: Public Solicitor