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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 964 of 2001
THE STATE
EDWARD TOUDE, WALTER YOGANA,
TANA BARINDA & JOHN TAYLOR ANANI
ALOTAU: KANDAKASI, J.
2001: 10th, 11th and 16th October
CRIMINAL LAW – PRACTICE & PROCEDURE – Admission of witness statements by consent – Party consenting not at liberty to call rebuttal evidence on the basis of rule in Brown v. Dunn and to question credibility of witnesses – If rebuttal evidence is called little or no weight should be placed on such evidence – Acceptance of such evidence may amount to unfair trial for party consenting.
CRIMINAL LAW – Particular offence – Aiding and abetting armed robbery – Robbery of a boat – All of State’s evidence by consent – No direct evidence against accused – Only inference open on the available evidence pointing to guilt of accused – Return of guilty verdict –Criminal Code ss. 386 (1), (2) (a) and (b).
EVIDENCE – Effect of evidence admitted by consent – Prevents compliance of rule in Brown v. Dunn (1879) R (HL) and consenting party from presenting rebutting evidence – If rebuttal evidence is presented little or no weight should be attached – Court still obliged to assess weight of evidence tendered by consent or not rebutted before decision on verdict.
EVIDENCE – Assessment of – Inconsistencies between prior statements in record of interview and subsequent oral evidence – Inferences to be drawn from totality of evidence – Matter of logic and common sense – Evidence or claims inconsistent with logic and common sense not credible – Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself – Only inference open accused evidence incredible and unreliable.
WITNESSES – Credibility of witnesses – Statements of witnesses tender by consent amounts to no contest on their credibility – Accused person giving brief oral evidence in contradiction of statements made in record of interview with no explanation of the reasons for the inconsistencies – Such witnesses are untruthful and unreliable in the absence of any credible explanation for such inconsistencies.
Cases cited:
Browne v. Dunn (1893) 6 R 67 HL.
The State v. Ogadi Minjipa [1977] PNGLR 293.
The State v. Saka Varimo [1978] PNGLR 62.
The State v. Kauva Lavau & Kamo Kauva ( unreported judgement 26/09/96) N1523.
State v. Morris [1981] PNGLR 493.
Garitau Bonu & Rosanna Bonu v. The State (unreported judgement 24/07/97) SC528.
Counsel:
K. Popeu for the State
D. Kari for the Accused
16th October, 2001
DECISION ON VERDICT
KANDAKASI J: Edward Toude ("Edward"), Walter Yogana ("Walter"), Tana Barida ("Tana") and John Taylor Anani ("John"), you all pleaded not guilty to one count of armed robbery contrary to section 386 (1) (2) (a) and (b) of the Criminal Code ("the Code") allegedly committed on the 22nd of March 2001 at Tarakwaruru Wharf. That was here in the Milne Bay Province, on a boat known as MV 434 (or "the boat") from where a sum of K14,700.00 ("the money") belonging to Kiwali Exports of Alotau was stolen. You did not carry out the robbery but the State alleges that by virtue of section 7 of the Code, you are principle offenders. This is because it alleges you aided and abetted the commission of the offence by a gang numbering about 6 men armed with 2 factory made shot guns, 3 metal pipes and one double-edged grass knife being dangerous weapons.
The specific allegations against each of you are that, there was a plan for the robbery and each of you knew of it and played the following parts:
The State admitted into evidence with your consent a number of statements in evidence against you. These are the statements of:
In addition to these documentary evidence, the State also called detective constable Warriupa Jeffery who gave a brief sworn evidence. He is the policeman who carried out the necessary investigations, conducted the necessary records of interviews and charged each of you. He was not cross-examined in any meaningful respect to cast any doubt on the State’s case by the defence, which I find was consistent with the defence having consented to the State’s evidence.
According to Beryl Kibikibi’s statement (exhibit "A"), MV 434 was schedule to travel out of Alotau in the midnight of the 18th of March 2001, bound for Empflats Island through Wedau, Pem, Taraks for overnight and then Goodenough Island. As the captain and the supercargo were both drunk, she left a sum of K15,000.00 in cash with a Jacob and Jerome (securities) to hand them over to the captain or the supercargo to buy marine products. The boat left as scheduled and called into Wedau and left for Pem on the 21st of March 2001.
On the 23rd of March 2001, a message was left for her to call regarding MV 434 at Tarakwaruru. She returned the called and spoke to an Elsie at the District Office there and learned of a hold up of MV 434. After initially failing to speak to either the captain or the supercargo, she eventually managed to speak to Edward, the supercargo. Her first question to Edward was "How much was stolen?" and Edward answered "everything." So she next asked "Did you buy any produce?" and he answered "Approximately K300.00. The rest were left in the trunk." She then questioned him as to why he left all the money in the trunk instead of hiding them or keeping them in a secured place. Edward’s response was, because he was sick and not feeling well. She then asked him as to his and the other crews’ whereabouts or activity at the time of the robbery, and he told her that they were all on the boat, some sleeping because it was midnight while others were listening to music from a cassette player. She then decided not to ask any more questions until they returned to Alotau and asked them to return to Alotau right away. Thereafter, she reported the robbery to police.
MV 434 returned to Alotau in the early hours of the 24th of March 2001. The captain and the supercargo, Edward and the rest of the crew went to her office to report on the incident. She ascertained that they planned that only one person would speak for them all. Instead of that happening, she questioned them one by one. Through that process, she found out that Edward lied to her on the telephone and his report at the office when he said he was on MV 434 when the robbery took place. He was in fact not on the boat.
The key evidence for the State is from two sources. First is the statement of Inia William ("Inia") a passenger bound for Goodenough and was on MV 434 when the robbery took place. He says in his statement (exhibit "B") MV 434 after leaving Alotau and calling into the other destinations along the way, headed for Tarakwaruru and the North Coast of Goodenough Island to buy marine products for Kiwali Exports. After going to a number of other places, she docked in at Tarakwaruru at about 4:00 pm on the 21st of March 2001 and overnighted there. The captain of the boat left the boat with the rest of the crew and cargo still on board and went to visit his wife at Irikaba village.
The next morning about 5:00 am, the supercargo, Edward took control of the boat and sailed to Pem to drop of and buy a Boger Matasororo’s marine products. The boat got to Pem between 8:00 am and 10:00 am. They dropped off Mr. Matasororo there and picked up 5 bags of marine produce and left for Tarakwaruru. The boat arrived and docked into Tarakwaruru Wharf at about 11:00 am. Whilst at Tarakwaruru, they bought some more marine produce from three people. Inia then disembarked the boat there temporarily and went ashore to have his shower and do his laundry. He returned to the boat between 1:00 pm and 2:00 pm and remained on the boat.
He says between 5:00 pm and 6:00 pm Edward left MV 434 and went for a walk in the village. An hour later about 7:00 pm, Walter, Jacob, Jerome and Alphias also left the boat and went for a walk in the village. That left only him (Inia) on the boat. He played a cassette player and listened to gospel music and went to sleep without realising that until he was awakened by music being played on the cassette player by Walter and Alphias. That was around midnight and lights on the boat were on. Then suddenly, three masked men armed with a factory made short gun, a metal pipe and double-edged grass knife appeared on the boat and held them up. The men with the gun pointed it at Mr. Inia and forced him to lie down on the floor of the boat with his face down. He tried to get up but was forced and ordered to lie down on the floor.
From where he was lying down, Inia heard the robbers walk straight to the captain’s cabin but the door was locked. So they walked back to where he was lying down and the next thing he saw was Walter trying to undo the key tag that was tagged to his trousers. After undoing the key, he went with the armed men to the captain’s cabin and he opened the door and they all walked into the cabin. At that stage, Inia got up and was trying to get out of the boat to seek assistance. To his surprise however, he saw another gunmen pointing his gun at him. That gunman told him to lie down and keep still on the floor of the boat and he complied. He then saw the three robbers who boarded MV 434 leave with the trunk box containing cash money. Once out of the boat he could hear dogs barking from the direction of Ginada village. So he worked out that the robbers must have come from that village.
Some 10 to 15 minutes later, he got up from where he was forced to lie down. Then a few minutes later, Saul Ogere, came on board and he was asked as to whether he had seen the gunmen on his way and he replied in the negative. At that stage, Walter came out of the captain’s cabin and he went looking for Edward.
About an hour later Edward returned to the boat with Walter. Once on board, Edward put on the boat’s spotlight and searched the surrounding in vain for the robbers.
Jerome Kunsoro ("Jerome"), who was a crew on MV 434, corroborates the above story. He says he had earlier left MV 434 to visit his sick mother at Ginada village. When he returned to the boat, he found only Mr. Inia, who was a passenger from Goodenough Island on board. He found out that the captain and the rest of the crew were not there. He also confirms the details of the robbery as described above and adds that he saw the same robber making signs to Walter for the keys to the cabin and Walter getting up from a sitting position and opening the door. In addition to that, he saw the robbers take the trunk that had the money and the cassette player used by him and the others on board the boat.
Charles Sigerua, a villager from Ginada says in his statement (exhibit "D") that on the 24th of March he received K20.00 from his small brother James Jimmy Waide. At that time, he did not know that the money was stolen. He got the money and spent it at the local trade store to pay of debts he had with the store. He learnt of the robbery on the 29th of March 2001, when Alotau police were carrying out investigations. Out of curiosity, he went and asked his small brother James Jimmy Waide and asked if he knew anything about the robbery and he told him that it was him, Gerald Charles Asabuna, Issacc Kataboi, Stanley Yunuwa and Quinsen Kasora.
Exhibit "E" is a statement from the captain of MV 434 assisting police to get to the scene of the crime and transporting them back to Alotau. What he says about the robbery and the results of the police work appears not to be directly from his personal knowledge and involvement. I will therefore, disregard his evidence on that basis.
Exhibits "F" to "N" are Statements from policemen involved in the investigation, arrest, recovery of a part of the stolen money totaling K7833.00, charging and conducting a record of interview with the robbers and you men and corroborating them. The evidence in exhibits "F", "G", "I", "K", "L" and "N" speak of police receiving a report of the robbery and carrying out necessary investigations. Initially they appeared not to have any lead in finding the robbers but eventually they had some good leads. That lead to the robbers being caught together with you. These statements also speak of the robbers freely admitting to the robbery. They also speak of John freely supplying his short gun for use in the robbery in return for payment from the proceeds of the robbery. They also confirm that, after the robbery John was given a large sum of money, which he hid in his garden and later took it and gave it to police. They also say that Tana received some cash from the proceeds of the robbery and were later recovered from him by police.
The remaining exhibits are each of your records of interviews with the police after your arrests. In so far as is relevant, the relevant questions and answers in Edward’s record of interview (exhibit "R") are questions and answers 19, 23–47. In the case of Walter’s (exhibit "S") are questions and answers 15–33, 38–40. As for John’s (exhibit "O") are questions and answers 17–39. Finally, for Tana’s are questions and answers 12–23 and 30.
From these records of interview Edward confirms he was employed as MV 434’s supercargo. His duties required amongst others, the safe keeping of the money that were stolen. He was given specific instructions as to the discharge of his duties and he did not follow them. When at Tarakwaruru, he did not care to put the money away in a secure place. Instead he simply left them all in a trunk box and ran off to see his girl friend in the evening. The following question and answer is important:
"Q29. Did you go out anywhere else in the evening?
Ans: Yes, I went up to Tana Barida (Kaiwa’s) house and from there I came back to the boat and then I walked up to Regiregi village
Q30. Why did you go to Tana Barida (Kaiwa’s) house?
Ans: I went to tell him that I was going to Regiregi village, in case he comes down to the boat and check me in the night
Q31. Did you go to Regiregi village?
Ans: Yes
Q32. Did you put the money properly before going to Regiregi village?
Ans: No.
Q33. Why didn’t you put the money in a safe place?
Ans: Because I was in a hurry"
When asked about your return to MV 434 and what you did in questions 34 to 40, Edward, you said you walked back to MV 434 and found only Inia on board. You then said, you did some fishing from the boat and remained on board until 11:00 pm when you left for your girlfriend’s place. You remained at your girlfriend’s place until Walter went and got you after the robbery. Again you say you did not care to put the money in a safe place as you were in a hurry (questions and answers 41 to 44). You do not say why it was necessary to visit your girlfriend the second time on the same day or why it was necessary to return to MV 434 after getting to your girlfriend’s house.
Edward, you also took the stand and gave a sworn testimony. You said the robbery took place on the 22nd of April 2001. When asked as to when you sailed out of Alotau before getting to Tarakwaruru, you said you sailed out in April 2001. Obviously this was not correct when contrasted with all of the other evidence which speak of the robbery taking place on the 22nd of March 2001, after MV 434 with you on board sailed out of Alotau a few days earlier in the same month.
You had the opportunity to comment on or otherwise correct any errors, if any, in your record of interview but you did not do that. You agreed to its admission into evidence and have not questioned it or raised any reason for the court to doubt the correctness of the answers to the questions and answers in your record of interview. Besides there is the statement of Kinzii Wingi (exhibit "J") which was also admitted into evidence by consent. This statement says your record of interview was conducted without the use of any force or threat after administering to you your rights and having warned you that the statements you make in answer to the questions asked would be recorded and may be used in Court as evidence against you. You read the record of interview, understood it and signed it in acceptance of its accuracy.
Inia’s evidence does not support your evidence in your record of interview. Inia says nothing about you returning to MV 434 and then leaving again at 11:00 pm. According to him, you left MV 434 between 5:00 pm and 6:00 pm and did not return until Walter went and got you after the robbery. Tana does not in his record of interview confirm you visiting him on the day or the night of the robbery. Given these, and based also on my impression of you, both in court and the witness box, and your demeanour I can not find you to be a truthful witness. For these reasons, As such I will attach little or no weight to your evidence given in Court.
As for you Tana, you say in your record of interview that you were home at about 6:00 pm and 7:00 pm with your wife busy preparing dinner. You say you knew of a plan to rob MV 434 by Jimmy Waide, Gerald Charles Asabuna and the others. Around that time, Gerald Charles Asabuna sent Jimmy Waide to inform you that, they were now ready to execute the robbery plan and told you not to disturb them. You say you were told of the plan to rob MV 434 when MV 434 first called into Tarakwaruru. Also you say you did not report of the plan to police or do anything because you were scared that the robbers might hurt him. Yet you give no reason for holding such a fear, if indeed you had it. You do not state why the robbers saw it necessary for you to be told of their plan if you played no part in the plan or the execution of it.
In your oral sworn testimony given in this Court, you say you knew nothing about the robbery until three days after it had occurred. This contradicts what you say in your record of interview. Like Edward, you had the opportunity to question the reliability of what is stated in your record of interview but you did not do that. Instead, you agreed to it being admitted into evidence. You also contradicted Edward when you said in Court, you do not know him because but says he knows you. That is why he says, he came to see you in the night of the robbery before it took place. You confirm that, in you answer to questions 19 and 20 in your record of interview where you speak of having asked Eddie for a ride on MV 434 when she first came into Tarakwaruru Wharf and you being allowed on board because he is your wantok. Based on these reasons and your demeanour in Court, I find you to be an untruthful witness and therefore unreliable. I will therefore also place little or no weight on your evidence.
With regard to Walter, you were not a crew on MV 434 but were there on the invitation of the captain. You had the keys to the captain’s cabin before during and after the robbery. You say the captain’s son before leaving for MV Arona gave the key to you. That was at Alotau. You say you did not let the captain know of you having the key or give it to him. When asked why, you answered, initially because the captain was drunk but when the captain became sober you said you do not know why you kept the key. If indeed you had the key and the captain did not know about that, you do not explain how the captain got into his cabin. There is no evidence on this.
But you say the crew including supercargo, Edward knew of you having the key to the captain’s cabin. At about the time of the robbery, you said you had the key on a drum with your jeans. When asked why you took such a casual attitude after having knowledge of the existence of the large sums of money, you answered, you did not know that there was going to be a robbery.
When the robbers got on MV 434, you say they forced you to open the captain’s cabin. But you do not give any specifics of the kind of force used against you. When asked, how did the robbers know that you had the keys, you answered they saw it sitting on the drum. After opening the door, you say you showed them where the trunk box containing the money was and they took it and escaped with it.
Inia and Jerome, who were on MV 434 at the time of the robbery, do not agree with you. Instead they speak of the robbers making signs for you to open the captain’s cabin. The robbers appear to know before hand that, you had the keys. During the robbery you were seen getting up from a sitting position unlike Inia and Jerome who were ordered to lie down on the floor, and going to the captain’s cabin and opening its door with the key you had. After having opened the door, these witnesses saw you getting into the cabin and coming out with the robbers who had taken the trunk box containing the money after you had shown them where it was. Both Inia and Jerome do not speak of any force being used against you to get you to open the door.
You also took the stand and gave a brief oral testimony. You spoke briefly of the robbery without any detail. In your record of interview, which you agreed to be admitted into evidence, you claim that you were forced to open the door to the captain’s cabin. In your oral testimony, you say you do not know who was held up in answer to your lawyer’s last question, which asked, "Who was held up?" If indeed you were forced to open the door or held up, you could have said that in your oral evidence but you did not do that. Also you could have tried to explain the difference in your oral testimony and the record of interview, but you did not do that either. There is also no explanation as to why or how Edward came to either trust you with the money and leave the boat without taking the key to the place where the money was kept off from you or fail to hide or otherwise secure the money first before leaving. For these reasons and based on my assessment of your demeanour in Court, I find you are not a truthful and a reliable witness, in so far as you try to exonerate yourself. I will therefore, place little or no weight on your evidence when I get to assess the evidence before me and make findings of fact.
Finally, John you say in your record of interview that, Gerald Charles Asabuna came to your house around 10:00 pm and 12:00 pm and asked you for the use of your gun to rob MV 434 and pay you out of the proceeds. You say you refused to lend your gun initially but when Gerald Charles Asabuna insisted and promised to pay you, you agreed on the third occasion. After the robbery, you admitted to receiving a large sum of money in K50 and K10 notes. You go on to say that, you hid the money in your garden and later, upon the direction of the police, you took them out and handed them over to the police.
At the time of the robbery, your license for the shotgun had expired and had not been renewed yet. Also, Gerald Charles Asabuna had no license to carry that gun at anytime, a fact you knew at the time of lending it out and the robbery.
You also took the stand and gave a sworn testimony. You claimed you do not know Gerald Charles Asabuna. But that person came into Court and gave evidence in your defence and said you are is his uncle. You are therefore related, and so therefore, you had reason to know him. That is why he came and asked you and promised to reward you for allowing the use of your gun. This could correctly be the basis upon which you could have given your gun to him. Because normally, nobody gives away such items unless they know the person who is asking or it is taken by force or is stolen, none of which occurred here. This contradicts your evidence that, when he came asking for the gun, that was the first time you had seen him. You also contradict your evidence regarding the reason why the gun was asked for and your reward for allowing its use. In your record of interview, you speak specifically of being asked to use the gun for the robbery of MV 434 and you getting paid from the proceeds. In your oral testimony you speak of hunting and being promised a pig in payment.
Of course, I note that, you tried to cast doubt on the accuracy of the record of interview by speaking about being punched and did not want to make it difficult for the police. You called Gerald Asabuna to give evidence on you behalf as well as your co-accused. Mr. Asabuna did admit however, that he is your nephew and that he came to give evidence in Court to assist you. But as I said, his evidence contradicts yours in relation to your relationship to him and your knowledge of him.
On your part, I note that, you took these steps after having agreed to your record of interview being admitted into evidence. If indeed what you say is what happened, you should have instructed your lawyer to challenge it and object to its admission. But you did not do that. Besides, the statement of Robert Bala dated 3rd April 2001, which was also admitted into evidence with your consent, speaks of no force or threat of any sort being exerted against you to secure the kind of answers you gave. He also speaks of you being given your constitutional rights and being warned that anything you say would be taken down in writing and may be used as evidence against you.
For all of these reasons, and based on my impression of your demeanour and performance as a witness in the witness box, I do not find you to be a truthful and reliable witness. This is especially in relation to your oral testimony and in so far as you try to show your innocence. I will therefore, place little or no weight on you, evidence in the assessment of the evidence and make findings of fact.
It is clear law by virtue of the rule in Browne v. Dunn (1893) 6 R 67 (HL), that unless a party has put his case or evidence in cross-examination to the other side, he or she is not at liberty to call evidence in rebuttal. This is to allow for a fair play in a trial so that in fairness one party can comment or other wise respond to the others evidence. If evidence is called in breach of that rule, the Court may place little or no weight on such evidence before it: see The State v. Ogadi Minjipa [1977] PNGLR 293, and The State v. Saka Varimo [1978] PNGLR 62.
Hence it means, in this case that, after having agreed to an admission into evidence, evidence going against yourselves including your own respective records of interviews, you all were not at any liberty, in my view, to call evidence in rebuttal. The reason for that is simple. When you all agreed to an admission into evidence all of the State’s evidence in the form presented, you in effect told the Court that there was no contest on the evidence thus presented. This why before, you opened your cases, I asked your counsel on the appropriateness of the mode of trial. You were however, contend with the mode of trial and I considered it inappropriate for me to insist otherwise and allowed the trial to be run the way you preferred.
By your own conduct, you chose not to test the prosecution’s case and in fairness put your respective cases to the prosecution, in line with the principle in Brown v. Dunn (supra). As a result, you all were at no liberty to call evidence in rebuttal of the prosecution’s case, per the evidence you agreed to. Nevertheless, you did call evidence by each of you taking the stand in the witness box and called Gerald in your defence. It would be most unfair for me to accept your oral evidence, when in fairness you did not put the effect of your evidence to the State’s witness. Besides it will run contrary to your own acceptance of the State’s evidence as being correct by consenting to their admission and not taking any issue on them.
At the same time, I note that, it is also clear law that, just because the whole or part of a party’s evidence has been admitted into evidence by consent of a party or is not rebutted in any way, does not automatically follow that the court must accept it and act on it. Instead, the Court has the duty to assess the evidence and make a finding as to whether the evidence presented is credible and is of such weight that it can safely be acted upon. This means that, in the context of a criminal case, the court must assess the evidence and then decided if the evidence establishes the prosecution’s case beyond any reasonable doubt. If the court is satisfied that the evidence does establish the charge or indictment presented beyond any reasonable doubt, it must return a guilty verdict. If however, the evidence falls short of that, a not guilty verdict must be returned. See The State v. Kauva Lavau & Kamo Kauva ( unreported judgement 26/09/96) N1523, for an example of a court doing that.
In this case, there is no dispute and I so find that an armed robbery as alleged did take place on board the MV 434, then docked at the Tarakwaruru Wharf, here in the Milne Bay Province, between 12:00 midnight and 1:00 am on the 22nd March 2001. A sum of K14,700.00 belonging to Kiwali Exports kept in a trunk box on the boat and in the captain’s cabin were stolen by an armed gang of about four young men. They were armed with two guns, metal pipes and a double-edged grass knife when carrying out the robbery. John supplied one of the guns. Both John and Tana were paid out of the proceeds of the robbery. Through good police work, the gang was arrested and charged and a sum of K7,833.00 were recovered and one of the robbers, Gerald Charles Asabuna was convicted in relation to the robbery.
What appears to be in dispute is the part each of you is alleged to have played in facilitating the robbery. According to the evidence, after the captain of MV 434 left the previous day to visit his wife, Edward took charge of the boat. He sailed the boat to Pem and return to Tarakwaruru Wharf on the afternoon of the 22nd of March 2001. By about 6:00 pm everyone on the boat disembarked and went ashore. Only Inia William, a passenger bound for Goodenough Island remained on board. Sometime later Jerome Kunsoro, employed as a security on the boat and Walter Yogana not an employee but was on the boat from Alotau returned and stayed with Inia.
Edward the boat’s supercargo also left the boat and first visited Tana at his village and then his girlfriend. They appear to have had a plan if not, Edward expected Tana to visit him on MV 434 that night so Edward says he went to see him in case Tana went looking for him. Before leaving MV 434, Edward did not properly secure the money he was in charge of because he says, he was in a hurry. He does not say why was he in a hurry or what caused him to be in a hurry. He just left the money in a trunk box in the captain’s cabin. Walter who was not a crew but was on the boat at the invitation of the captain had a key to the captain’s cabin. The captain did not know that Walter had the key to his cabin. But Edward did know about that.
There is no direct evidence of there being a plan to rob MV 434 by the armed gang and you four men playing the parts you are alleged to have played. That does not automatically mean that, there must be a finding that you had no part either has alleged or at all in the robbery. Instead, the law does allow for a person to be convicted on circumstantial evidence as in this case, if guilt is the only inference available to a court.
That law was stated by Miles J., in State v. Morris [1981] PNGLR 493, at p. 495. He was affirmed by the Supreme Court in the case of Pawa v. The State [1981] PNGLR 498 per Andrew J., at page 501 who states that law in these terms:
"I am in agreement with Miles J., in the State v. Morris 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] HCA 42; [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 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] HCA 44; [1963] 110 CLR 234, at p 252; See also Thomas v. The Queen [1960] HCA 2; [1960], 102 CLR 584, at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than a 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...’"
(Emphasis added)
A more recent statement of that law by the Supreme Court is in Garitau Bonu & Rosanna Bonu v. The State (unreported judgement 24/07/97) SC528, where the Supreme Court cited with approval the above principles and said:
"The law relating to circumstantial evidence and the inferences to be drawn are clearly established in Paulus Pawa v. The State [1981] PNGLR 498 where the Supreme Court was unanimous in its decision by dismissing the appeal of the prisoner and confirming the trial judge’s conviction of the Appellant wholly on circumstantial evidence. In that case the Court House in Mount Hagen was broken into and the safe was stolen. The safe was subsequently discovered the next day near the Appellants’ village. It was still locked and when cut open cheques and documents were found inside but there was no cash. Evidence from the Clerk of Court was that at the close of business on 25 November, 1980, there should have been K4,327.00 in cash in the safe.
The Appellant was a Clerk of the District Court in Mount Hagen and as part of his duties held the only key to the Court’s safe. His explanation of the supposed loss of the key to the safe given by Prosecution witness, was not accepted and when he did not give or call evidence in his trial for theft of the money, the trial Court found him guilty of the theft. It is the same situation in this case although the facts and the charges are different."
In that case, the Supreme Court dismissed an appeal against a guilty verdict based solely upon circumstantial evidence on a murder charge. The only evidence against the appellants was that, the deceased’s fatally stabbed body was found in the appellant’s house and some attempt was made by them to treat the deceased. The Supreme Court made it clear that, the process of drawing inferences and arriving at a conclusion in such a case is a logical and common sense approach in these terms:
"In the absence of any explanation from the Appellants as to why and how the deceased happened to have ended up in their house and found by them in that condition, it is a common sense reaction for anyone to conclude that the Appellants ought to know much more than they are prepared to admit or say. It is a rational inference consistent with logic and common sense. This in our view was a conclusion open to the trial Court on the facts available, and we see no justification in reversing the findings of the trial judge."
The question in your case is this, what reasonably logical and common sense inference do the facts support? The only reasonable, logical and common sense inference open on the evidence presented by the prosecution which I accept as credible and therefore reliable is this. There was a robbery plan that went like this:
Walter was to wait for the robbers to come on board. Once on board, the robbers would hold up Inia and Jerome and pretend to hold up Walter as well. This is a very strong inference because only three robbers boarded the boat, to take the three people then on board. The evidence of Jerome and Inia clearly state that the robbers appeared to know that Walter had the key to the cabin and signaled him to open the captain’s cabin. According to these witnesses, there was no force used on or against Walter to get him to open the cabin door. He was not forced or ordered to lie down on the floor as they were ordered to do. Once the door was opened, Walter went into the cabin with the robbers and showed them where the trunk box with the money was. Walter’s answer to this last question in examination in chief "Q. Who was held up?" Ans: "I do not know" also supports this inference. Further, Walter was not a crew on the boat. He had no right to have access to the cabin let alone its key. I do not accept or believe for the reason already given that Walter had the key from Alotau and before the captain left the boat. This is because, if the key was with Walter before that, the captain could not have had access to his cabin, unless it always remains open or that he had a spare key, none of which is the case in so far as the evidence goes. Instead, I find that, when the captain went to visit his wife the day before, the boat was in Edward’s control. Edward sailed her to Pem and back. He had reason therefore to have control and access to the cabin and its key. Therefore I find also that, for the purpose of the robbery Edward left the key with Walter for him to open the door for the robbers to get the money and that is what happened.
After having organised with Walter, Edward went to Tana some time after 7:00 pm (see: Tana Record of Interview) and told Tana that the stage was now set for the robbery to take place. He told Tana of the arrangements he had made with Walter and that there were only three people including Walter on board. Upon receiving that information, Tana went to Gerald and told him to get organised and go and execute the robbery. Gerald organised his gang and found out that they needed the use of a gun. He knew that his uncle, John, had a gun. He therefore went to his uncle, John between 10:00 pm and 12:00 midnight (see: John’s record of interview) and asked for the use of the gun for the purpose of the robbery. John was reluctant to lend his gun initially but when he was promised of having a share of the proceeds of the robbery, he lent his gun. Once equipped with the gun and the other weapons the gang went and effected the robbery. From the proceeds, John and Tana were paid. Only K7,833.00 of the total K14,700.00 was recovered from the robbers, Tana and John. The balance of the money stolen was unaccounted for. They could possibly have ended up with Edward and Walter for their part in the robbery.
The above inference is reasonably and logically open. It is also in line with the dictates of common sense based on the evidence presented by the State, inclusive of each of your respective records of interview. Parts of your oral testimony as noted above also supports this inference. There is no reliable evidence pointing to a contrary inference or casting a doubt in my mind on this inference. I note that you tried to, though with many inconsistencies and not in accordance with the rule in Brown v. Dunn (supra) after having accepted the States evidence to contradict such an inference. For the reasons given, that can not be accepted and is not one that is open both logically and in line with common sense.
You men have been charge for aiding and abetting the commission of the robbery on board the MV 434 at Tarakwarur wharf here in the Milne Bay Province. On the basis of the above, I find beyond any reasonable doubt you men played the following parts:
I find you all guilty as charged for the respective parts you played beyond any reasonable doubt. I therefore return a guilty verdict
and proceed to convict you on the one count each of robbery within the meaning of sections 7 and 386(1) (2) (a) and (b) of the Criminal Code.
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Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor
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