State v Avaka [2000] PGNC 56; N2024 (2 November 2000)

N2024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO 1173 OF 1999 &
CR: NO 1405 OF 1999

THE STATE

v.

TAUVARU AVAKA & MICHAEL DAVID KAIPU

WAIGANI: GAVARA-NANU, J

2000 : 25, 26, 27, OCTOBER & 2 NOVEMBER

CRIMINAL LAW – Robbery - Unlawful use of MV- No case submission – No case to answer – False denials and lies point to the consciousness of guilt of the offence charged –Demeanour of witnesses - Need to visit the scene to verify certain aspects of the evidence given.

Cases Cited:
The State –v- Paul Kundi Rape [1976] PNGLR, 96.
Woon –v- R [1964] HCA 23; (1964) 109 CLR 529

Counsel:

D. Mark for the State
D. Koiget for the Accused

TRIAL

GAVARA-NANU, J: The accused were charged that they on 10th July, 1999 along Kilakila/Kaugere road stole form one Luke Misa Polangou with actual violence, a motor vehicle, namely a Isuzu Double Cab Utility Reg. No. BAY. 247 and that at that time, the accused were alleged to be in company with other persons and were armed with a factory made pistol and a home made gun.

The accused were also charged that they on 10th July, 1999, unlawfully used the said motor vehicle.

The charges were laid under Sections 386 (1) and (2) and Section 383 (2) of the Criminal Code respectively.

The accused pleaded not guilty to both charges and the trial proceeded with the State calling only one eye witness namely Constable Tonny Engi. His evidence turned out to be only in relation to the charge of unlawful use of the motor vehicle.

The other evidence produced by the State against the accused were in the form of statements tendered by consent.

The State witnesses whose statements were tendered were Mr Luke Misa Polangou, who was the driver and the owner of the said vehicle, Cathy Polangou, Molly Polangou and Grace Maino who were passengers in the vehicle.

There was only one record of interview tendered which was the one conducted with accused Michael David Kaipu. The record of interview which was conducted with accused Tauvaru Avaka could not be tendered by the State because of the objection by the defence counsel that the accused did not sign it. The State did not press for it to be received as evidence.

The undisputed facts are that on 10th July 1999, Mr Polangou and his passengers were driving along the Kila Kila/Kaugere road when a group of youths numbering about five (5) stopped their vehicle and ordered them out of it at gunpoint. After they got out of the vehicle, the youths then drove away with the vehicle leaving Mr Polangou and his passengers stranded on the road. Sometime later, they were picked up by a passing police vehicle and taken to Badili Police Station where they were questioned about the incident by the police and made their statements.

Between 7.00pm and 8.00pm, the Police Tactical Response Unit was contacted on radio by the Badili General Police Unit for assistance. The Police Tactical Response Unit then joined the Badili General Police Unit and proceeded to search for the stolen vehicle. They went to Kogeva settlement which is between Kaugere and Sabama settlements. Among the Police Tactical Response Unit members was Constable Tonny Engi.

The Police located and recovered the vehicle at Kogeva settlement at about 9.30 pm. It was at that place and time that the accused were also apprehended. These facts are not in issue.

Constable Tonny Engi’s evidence also relates to the subsequent events that took place at the Badili Police Station on the night of the incident after the stolen vehicle and the accused were taken there. His evidence is crucial, I will therefore discuss it in detail later. The evidence of Mr Polangou and his passengers only relate to the robbery of the vehicle along the KilaKila/Kaugere road. They never recognised any of the youths who held them up and stole the motor vehicle. In fact there is nothing in their evidence that implicates the accused on the charge of robbery. They only described how the youths stopped them and got the vehicle from them and drove off.

Turning now to Tonny Engi’s evidence, he said when he and the other policemen went to Kogeva settlement, they stopped and parked their vehicles some distance away from where the stolen vehicle was parked. He gave the distance between where they packed their vehicles and the stolen vehicle to be about 300 to 400 meters. He said, they approached the stolen vehicle on foot under the cover of darkness. He gave the time they arrived at the settlement to be about 9.00pm or a little after because he and the other members of the Tactical Response Unit received the radio call from Badili General Police Unit for assistance between 8.00pm and 9.00pm. He himself was on night shift that evening from 8.00pm to 2.00am to patrol Koki and Ela Beach areas with the other members of the Tactical Response Unit. According to him, the stolen vehicle was parked at the dead end of the street they were following and as they were walking towards the vehicle, they saw a group of youths standing around the vehicle. When they got to the vehicle and proceeded to apprehend the youths, the accused Michael David Kaipu was caught sitting at the drivers seat and the other accused Tauvaru Avaka was sitting at the front passenger’s seat. The accused Tauvaru Avaka ran away and was apprehended later by the other policemen.

Constable Tonny Engi was personally involved in the arrest of the accused Michael David Kaipu. He was the one who put the plastic handcuffs on him and brought him to Badili Police Station. Accused Michael David Kaipu tried to escape but was late in doing so and was arrested. When the vehicle was searched, it was found that the stereo had been removed. At the time of arresting accused Michael David Kaipu, Constable Tonny Engi said, he asked the accused about the weapons that were used to do the robbery, and at the Badili Police Station, he noticed that accused Michael David Kaipu was wearing a green blanket shirt and blue jeans. He said accused Tauvaru Avaka was brought in separately to Badili Police Station by the other policemen.

At the end of the State’s case, defence made a no case submission on behalf of the two accused. The principles to be applied in a no case submission are well stated in the case of State v Paul Kundi Rape [1976] PNGLR 96. As I alluded earlier, the State did not produce any evidence at all which could implicate the accused either indirectly or directly to the charge of robbery. There was therefore no evidence upon which the Court could lawfully convict the accused on that charge. I therefore found that both accused had no case to answer on that charge.

In relation to the charge of unlawful use of motor vehicle, there was direct evidence against accused Michael David Kaipu by Constable Tonny Engi who helped to apprehend him at the settlement. I therefore found that there was evidence upon which he could be lawfully convicted and therefore had a case to answer.

As to accused Tauvaru Avaka, Constable Tonny Engi said he was at the front passenger seat of the stolen motor vehicle when the Police arrived at the scene but ran away and was caught later by other policemen. Constable Tonny Engi said he later learnt of Tauvaru Avaka’s name at the Badili Police Station when he was brought there separately from accused Michael David Kaipu by the other policemen. It was dark and Constable Engi said, he only saw a youth running away from the front passenger seat of the vehicle. As he was not personally involved in the arrest of accused Tauvaru Avaka, I found that it was possible that the youth who ran away from the motor vehicle may not have been Tauvaru Avaka. Constable Tonny Engi could not recall the clothes accused Tauvaru Avaka was wearing at that time either. Therefore given the fact that there were also other youths besides Tauvaru Avaka who were at the scene and who ran away when chased by the police, I found that although there was some evidence implicating accused Tauvaru Avaka to the charge of unlawful use of motor vehicle, it was not enough upon which any reasonable tribunal could safely convict. The policeman who actually arrested accused Tauvaru Avaka was not called either and in my view that was fatal to the State’s case against accused Tauvaru Avaka. The State could not in my view improve its case beyond that point against him, therefore, in the exercise of my discretion, I decided to discharge him from the charge.

Trial of accused Michael David Kaipu on the charge of Unlawful use of motor vehicle.

After finding that accused had a case to answer on the charge of unlawful use of motor vehicle, he gave sworn evidence in his own defence. I now have to decide whether he is guilty of that charge. He denied that he was involved in the unlawful use of motor vehicle, namely Isuzu Reg. No. BAY.247. However, he agreed that the stolen vehicle was recovered at Kogeva settlement by the police but disputed the location of the vehicle where the police say it was found. He gave the location as inside the yard of a house and beyond the dead end road or street. He denied being apprehended at the driver’s seat of the stolen vehicle, he said he was arrested near Avaka’s house which is some distance away from where Constable Tonny Engi says he was arrested and said that when he was apprehended by the police, he was hit on the back of the head with a gun butt and fell down unconscious. According to him, he gained consciousness at Badili Police Station when accused Avaka poured water on him to revive him at the direction of the police. He also said that accused Avaka was also hit unconscious at Kogeva settlement and taken to Badili Police Station while been unconscious.

To assist me make an informed decision on the case and to verify the true location of the vehicle when found by the police at the settlement, I decided to visit the scene. At the scene, both Constable Tonny Engi and the accused were asked questions. More questions were put to them in court after the visit to the scene when the trial resumed.

The evidence given by both Constable Tonny Engi and the accused during and after the visit of the scene were crucial, because they either further strengthened or contradicted the evidence they already gave.

I find that there were discrepancies in the evidence given by both Constable Tonny Engi and the accused. I must therefore decide whether such discrepancies affect the substance of their evidence and therefore their credibility as witnesses or whether they are merely peripheral and thus do not affect or discredit their evidence.

Tonny Engi for instance, maintained in his evidence in chief and under cross examination that there was a tucker shop or a canteen near where the stolen vehicle was recovered at the settlement and that lights shone from both sides and inside of the canteen onto the area where the stolen vehicle was parked. However, when the scene was visited, it was found that the canteen he was referring to in his evidence was in fact a small dwelling house belonging to Avaka’s auntie. The court raised this issue with Constable Engi in court after the visit of the scene and he explained that it was the first time for him to go to the area in the night while pursuing the youths who stole the motor vehicle and his attention was more on the vehicle and the youths than on the surroundings of the scene so when he saw the building with lights, it somehow registered in his mind as a canteen or a tucker shop. The other discrepancy in his evidence was that under cross examination, he first said, he did not ask the accused about his name but later after some more questioning, he said he did ask him about his name. When pressed by the defence counsel as to whether he was lying to the Court, he said "I just got confused with the questions".

Apart from these discrepancies, the crucial evidence by Constable Tonny Engi relating to his apprehension of the accused at the scene inside the motor vehicle has not been shaken, including the location where he said the vehicle was found and that he was the one who put the plastic handcuffs on accused’s hands. The discrepancies highlighted above in my view are not unusual in the circumstances of a case such as this. I consider them to be peripheral and do not affect his credibility as a truthful witness.

I have observed the demeanor of both Tonny Engi and the accused closely when giving evidence both in court and at the scene during my visit there and believe that Constable Tonny Engi told the truth and tried to recall the events as best he could to assist the court. This is a case which happened a year ago and it is not unusual to forget events or to slip up on some events which happened quickly at the time of the incident, especially at the Kogeva settlement. Constable Tonny Engi, remained firm, positive and consistent throughout his evidence especially where it mattered and I accept his evidence as the truth.

As to the discrepancies in accused’s evidence, I find that, they are not peripheral but rather calculated lies which must affect the substance and the credibility of his evidence, for instance, under cross examination by Mr Mark for the State, he said he was not able to tell the type of the vehicle when it was stationed at Kogeva settlement because it was dark, but during the visit to the scene he said he was able to see the vehicle and described it as an open back vehicle with a tray whose width was like that of a Toyota Hilux. I have no doubt that, he was referring to the stolen Isuzu Double Cab. Also in the early part of his evidence in chief, he was asked, "Tell the court what happened when the police arrived at the settlement?" to which he answered, "Police came at night, they chased some boys, they came towards our yard and at the back, they went down the cliff, the police came and held me at the yard, they asked me about the boys and also hit my head with gun butt, I fell down and was unconscious". Then towards the middle of his evidence in chief he was asked, "When the police came, did they ask any questions?" to which he answered, "They did not ask any questions, one policeman came and landed punches on me." Apart from this contradiction, there was his evidence about where he said he was standing when the police arrived at the scene and the position of the vehicle from where he was standing and the surrounding area where he said the vehicle was parked and later reversed. He said when the police apprehended him, he was standing near Avaka’s residence behind a row of stones heaped up to one metre high and flowers which were two metres tall. He said the stolen vehicle was parked inside a yard which was about 20 metres from where he was standing and was between an old car which has been lying idle there for many years and hedges of flowers which I noticed during the visit were about two and half metres tall and bushy which would completely obstruct his view of the stolen vehicle from where he said he was standing. The space between the hedge of flowers and the old car is less than a metre. It was obviously very small for a vehicle as big as the Isuzu Double Cab to be driven in. There were also two big stones sitting right across where he said the stolen vehicle was driven in and parked and then reversed. The accused said those big stones were removed just before the vehicle was driven into the yard and were placed back again after the vehicle was reversed out from the yard by another youth. I find this unbelievable because in his evidence in chief and under cross-examination he said the boys ran away when the police arrived and chased them. How could the fleeing boys find time to move those two very big stones and then put them back. I also do not believe that he could see the stolen vehicle from where he said he was standing because his view would have been completely obstructed firstly by the flowers right next to where he was standing which he said were two (2) meters tall and secondly, by the tall and thick hedge of flowers next to the car which were about two and half meters tall. His story about accused Avaka been hit unconscious and driven to Badili Police Station in that state is also fabricated because if Avaka was unconscious he could not be able to pour water on him and revive him as he said happened at the Badili Police Station.

The accused has therefore told lies to this Court.

I accept Constable Tonny Engi’s evidence in relation to the position of the stolen vehicle when it was found by the police at Kogeva settlement. I also accept his evidence that the accused was in the driver’s seat of the stolen vehicle trying to reverse it when the police arrived and arrested him. I reject the accused’s evidence that he was hit unconscious by the police at the scene. That story in my opinion was invented by the accused during the trial.

I also find that the accused has corroborated parts of Tonny Engi’s evidence, for instance, the clothes he was wearing that night. The accused confirmed in his evidence during trial and in his record of interview that he was wearing a blanket green shirt and blue jeans on the night of the incident. This is significant because Constable Tonny Engi was neither the interviewing officer nor the corroborating policeman during the accused’s recorded interview but could recall the clothes the accused was wearing when he was arrested. This further shows that Constable Tonny Engi is a witness of truth. The other is accused’s confirmation that the lights and the engine of the stolen vehicle were still on and running when the accused was arrested.

I find that the accused was the one trying to reverse the vehicle and not some other person when the police arrived at the scene. My finding is consistent with the evidence given by Constable Tonny Engi. Here the accused has in my view tried to divert the court’s attention away from himself by saying that some other person was reversing the vehicle

As I said, I have observed the accused’s demeanour carefully when giving evidence, and was not impressed. He was evasive and hesitant when confronted with crucial and probing questions pointing to his guilt of the offence charged. Such lies and or fabricated evidence are clear demonstration of his consciousness of his guilt of the offence with which he is charged. Similar observations were made by Windeyer J in Woon v R [1964] HCA 23; [1964] 109 CLR 529, pp.541-542, which I respectively adopt. His Honour said, "....Whether an accusation be in terms denied or conceded, may sometimes be less important than the manner and the tone of the words used by the accused under circumstances of the utterance.

A man’s look may belie him. Demeanour and conduct may discount denial and manifest guilt as surely as would a confession made by words. But I think that Dr. Coppel was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence pointing to the accused as guilty of the offence charged. When there is, false account of movements, false denials of knowledge of relevant facts, any conduct, utterance or demeanour demonstrative of guilt may go far to support a conclusion that the accused committed the very crime charged" (my underlinings).

In that case, his Honour was considering an application for special leave to appeal by the Applicant against his conviction for break, enter and stealing. Pertinent issues related to his refusal to answer certain questions put to him by the police during interrogations. The circumstances of the case before me are different, however, I find that similar inferences can be drawn in this case

I am therefore satisfied beyond reasonable doubt that the State has proved all the elements of the offence charged and I accordingly find the accused guilty.
_____________________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor