State v Bawai [2001] PGNC 123; N2074 (26 March 2001)

N2074

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 292 of 2000

THE STATE

v.

THOMAS GITAI BAWAI

WAIGANI: KANDAKASI, J.
2001: March 7, 8, and 26th

CRIMINAL LAW – PRACTICE & PROCEDURE - Accused charged with armed robbery and attempted murder – Evidence not supporting charge presented but supports alternative charge of attempted robbery – Return of a verdict of guilty on the alternative charge – Criminal Code (Chp. 262) Ss. 386 and 387.

CRIMINAL LAW – Particular offence - Attempted robbery with violence and threats of violence in the company of others – Accused apprehended by victim of the offence and handed over to police – Return of guilty verdict – Criminal Code (Chp. 262) s.287.

CRIMINAL LAW – Particular offence - Attempted murder – Gang member shooting at driver of PMV bus trying to escape from an armed hold up – Damage to vehicle and injuries to driver of vehicle – Return of guilty verdict.

EVIDENCE – Prosecution and defence calling one witness each – Assessment of evidence – Need to consider all the circumstances surrounding the case – Credibility of witnesses – Variation between record of interview and evidence given in court casting doubt on credibility of defence case.

WORDS & PHRASES – "Robbery", Stealing" - means some physical act of taking away or removing from –"Attempts to commit an offence" – There must be intend to commit the offence which must be manifested by some overt act which has been set in motion – Criminal Code (Chp. 262) ss. 4, 384, 38.

Cases Cited:
Regina v. Joseph Kure [1965-66] PNGLR 161

Counsels:
Mr. D. Mark, for the State
Mr. J. Tekwie, for the Defendant

26th March 2001

DECISION ON VERDICT

KANDAKASI, J: I heard this matter on the 7th March 2000. The next day, 8th March 2001, I heard submissions from both parties and reserved a ruling on the verdict. Due to a court circuit to Goroka on short notice, I was unable to deliver a decision on the verdict until today.

The State presented an indictment against you charging you with one count of armed robbery and one count of attempted robbery. You pleaded not guilty to both charges and that necessitated a trial. The State called only one witness namely, Peter Takis who gave oral evidence to support the charges against you. The record of interview between yourself and the police were admitted into evidence with your consent. Similarly, a medical report by Dr. E. Brown, dated 15th November 1999 was admitted into evidence in support of the State’s case. In your defence, you called yourself and gave oral evidence. You produced no other evidence in your defence.

The relevant facts

Mr. Peter Takis testified that he was a crew on a PMV bus (hereinafter "the bus") owned by a Pinjki Wak and driven by a Tom Eroa on the 26th October 1999. The bus was making its usual run with a stop at the Koki bus-stop. There you and another man got on the bus. The bus then left for Four Mile through the Two-Mile hill way. When they were approaching Two Mile Hill, one of the passengers called for the driver to stop at the bus-stop. The driver complied and brought the vehicle to a stop at Two Mile Hill bus stop. Then one of the man who got on the bus with you got up, produced a gun at Peter Takis and ordered him to go down. As he was in the process of complying, you approached him with a kitchen knife with the aim of stealing a bag, which contained money collected Mr. Takis for bus fares. At that stage, Mr. Takis grabbed hold of you and with the assistance of the other passengers in the bus, you were overpowered and disarmed. At about the same time, the driver tried to speed off from the bus stop to get away from the robbers and the person who had gone down holding the gun, shot at the driver. Mr. Takis heard the gunshot but did not see where it was fired at until later when he found out that his driver was shot at. However, the front windscreen, which was shattered, saved the driver who sustained only minor injuries. Notwithstanding the damage to the vehicle and the injuries to the driver, the driver drove the vehicle straight to the Four-Mile Traffic Police Station and from there to the CID Serious Crimes section at Boroko Police Station at the direction of the Four-Mile Traffic police. You were then handed over to the police at Boroko together with the kitchen knife you used to threaten Mr. Peter Takis.

Police interviewed you and subsequently charged with armed robbery and attempted murder.

The driver went to the Port Moresby General Hospital and received treatment for the injuries he sustained from the incident. There is a medical report by Dr. E. Brown, which confirms that. That report describes the injuries as follows:-

Tom Eroa alleged that he was shot with a shotgun on the left side of the head and left shoulder at Two-Mile hill in the afternoon of 26th October 1999.

He was examined at the Accident and Emergency Department at 1.25pm of 26/10/99 and found the following:-

1. Small pellet wound over his left temporal – front fore area of the head.
2. Few abrasions over his left deltoid area (upper arm).
3. X-rays of his head and left shoulder revealed no pellets.
4. He was discharged from the Accident and Emergency Department on the same day.
   

In your evidence, you confirmed that you got on the bus at Koki and also confirmed that an armed holdup took place at Two Mile hill where a gun shot was heard and one of the suspects was overpowered by the crew and passengers in the bus. You denied getting on the bus with another man or your accomplice. You claimed that you went on your own to buy betelnuts for your mother who gave you K5.00. The betelnuts were to be sold by your mother on the streets.

When the hold up took place at Badili, you said you just sat on the seat where you were seated in the bus from Koki and was still on the bus when it was driven away from the Two-Mile bus stop. You then stated that, the bus went to the main Four Mile bus-stop where you tried to disembark and go to your house but the crew and other people in the bus talked in their own language and started beating you up. Thereafter, you were taken to the Boroko police station. You said that the knife produced in court and admitted into evidence as Exhibit "A" was given to police after the crew and people in the bus handed you over to the police.

In your record of interview you stated that the knife was not yours and that you had gone to Koki market to buy betelnut for personal consumption and not for sale as you were claiming in your oral evidence.

When you were asked to give your background, you stated that you are an ordinary villager with no formal employment. Yet you were able to say that police charged you for armed robbery and attempted murder, using the English language to express them.

You did not explain what had become of the other person that was overpowered by the crew and passengers in the bus at Two-Mile hill and there was a sudden switch to you at the Four-Mile main bus stop.

When asked to fully describe what happened at Two-Mile hill you did not say anything about the bus’ windscreen being shattered and the driver sustaining injuries.

The verdict in this case will be depended on which version of the evidence the court accepts. The question of which version the courts should accept, requires an assessment of the evidence and determining which of the evidence is credible. That as of necessity will depend upon which of the two witnesses the court accepts as a credible and reliable witness. Both parties agreed that corroboration is not required and as such is not an issue.

Assessment of Evidence

I carefully observe the demeanour and conduct of both witnesses in the witness box. The State witness impressed upon me as a truthful witness. He did not look for answers to questions put to him both in examination-in-chief and cross-examination. He was not evasive nor was he uncooperative. Cross-examination tried to cast doubt on the evidence he gave in court but the witness maintained his story or evidence in its entirety. His evidence is corroborated by the medical evidence as well as the record of interview. The medical evidence confirms that the driver of the vehicle Mr. Tom Eroa sustained injuries to his face and upper arm areas from gun shot pellets but were not serious. The record of interview confirms that the defendant was apprehended and handed over to the police by the PMV driver and its crew. At that time, a kitchen knife was also handed over to police as the weapon used by you.

You did not impress upon me as a truthful witness. You were evasive in your answers and told a story that did not fit in well with any sense of logic and commonsense. The following factors illustrate that point.

In your record of interview, in Q.23 you said in pidgin "Yes, mama bilong mi, Hoai bin givim mi K5 moni mi go baim buai long Koki bilong mama bai kaikai."

You changed that in your oral evidence to say that your mother send you to Koki market to buy betelnuts for her to resell on the streets.

If the version given in the record of interview is correct, no explanation has been given as to why it was necessary to go down to Koki when betelnuts could easily be bought off at the Boroko or the Gordons markets, which were near to your place of residence at Four-Mile settlement. If however, the version you gave in your oral evidence is correct, again no explanation is given as to why it was necessary to go to Koki when betelnuts could still be bought off at the nearest locations of, Gordons or Four-Mile markets.

The driver was shot at with the use of a gun from the outside. That shattered the windscreen and injured the driver of the bus. It was reasonable for you to know about this fact but you were not able to say that, in your evidence despite attempts in cross examination by Mr. Mark of counsel for the State to get you to give a full description of what actually happened during the incident. Straight after the incident, the driver was heading for the police station to report the matter and then to the hospital for medical attention. Given that, your claim of the bus been driven to Four-Mile bus-stop does not appear reasonable and logical. When a driver has been shot at by gangsters and has sustained injuries with one of the gang members being overpowered by the crew and passengers in the bus, it was more than reasonable and it accords well with logic and common sense that the first place the bus could have been driven to, was the police station. That’s what happened according to the State witness’ evidence. Further, you failed to explain what had become of the person you claim the crew and the passengers in the vehicle overpowered and suddenly you became the suspect.

Unless one is mentally affected, non-body assaults another person or accuses another for nothing. There is always a reason. In the present case, you confirm that there was an armed hold up of the bus at Two-Mile and one of the gangsters was overpowered and apprehended by the bus’ crew and other passengers in the bus. The State’s witness says that person was you. You say it was a different person. It was therefore, necessary for you to explain what happened to that person and you suddenly got accused and assaulted and handed over to police. Your failure to do so goes against you.

In the circumstances and on the basis of the evidence before me, I find that you were part of the gang, which held up the bus at Two-Mile hill on the 26th October 1999 just after midday. I also find that, you used a kitchen knife, which is Exhibit "A" in evidence and threatened the crew of the bus to steal from him a bag containing money from fares paid by passengers. Unfortunately for you, the crew of the bus, Mr. Peter Takis overpowered you with the help of some of the passengers in the bus and apprehended you. At that time, the driver of the vehicle tried to drive off and that caused your accomplice and gunman who was on the ground to shoot at the driver with a view to stopping the vehicle from getting away. That resulted in a shattering of the bus’ windscreen and injuries to the driver.

I also find that, you were eventually taken to the police station where your were charged with armed robbery and attempted murder. I do not accept your claim of you being innocent and being wrongly accused and beaten up by the crew and people in the bus. This is because I do not believe your story for the reasons I have earlier given.

The main issue now is whether you are guilty of the charges against you. That issue can be determined by reference to a determination as to whether or not each of the essential elements of the offences with which you have been charged have been established by the evidence before the court.

Whether the Charges have been Established

In relation to charge of armed robbery, s. 386 of the Code describes the offence in these terms "a person who commits robbery is guilty of a crime."

Earlier on in s. 384 robbery is defined in these terms:-

A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or a property in order to obtain that thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

The Code in s.386 defines the term "stealing" in this terms:-

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.

From the above, it will be very clear that the act of robbery can only be committed if there is an act of stealing which requires an element of actual moving of the thing capable of being stolen or otherwise deals with it by some physical act.

In this case, the evidence does not show what, if any was stolen or taken away from the crew or the bus or any other person in the bus at that time. Accordingly, it will be unsafe to return a verdict of guilty on the charge of armed robbery.

Nevertheless, there is sufficient evidence for a finding that there was an attempted robbing from the bus crew the bag containing collections from bus fares. This then gives rise to the question of whether or not this court is entitled to proceed to return a verdict of guilty on the alternative charge of attempted robbery under s. 387 of the Code. That question is answered by s. 546 of the Code which reads:-

(1) On indictment charging a person with committing an offence, he may be convicted–

• (a) of attempting to commit the offence; or
• (b) of attempting to commit any other offence of which he might be convicted on the indictment.

Section 4 of the Code defines "attempts to commit an offence" in this terms:-

(1) when a person, intending to commit an offence –

• (a) begins to put his intention into execution by means adopted to fulfilment; and
• (b) manifests his intention by some of it act,
  

but does not fulfil his intention to such an extend as to commit the offence, he is said to attempt to commit the offence.

(2) It is immaterial, excepts so far as regards punishment whether –

• (a) the offender does all that is necessary on his part for completing the commission of the offence; or
• (b) the complete fulfilment of his intention is prevented by circumstances independent of his will; or
• (c) it is of his own motion from the further prosecution of his intention.
  

(3) it is immaterial by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and attempt to commit another offence.

In the pre-independence case of Regina v. Joseph Kure [1965-66] PNGLR 161, Frost, J. at page 166 in the context of a charge for assault with intent to commit rape and alternate count of attempt to commit rape referred to the definition in s. 4 of the Code and said that in order to establish the offence of attempted rape the State must prove:-

(1) the accused intended to have carnal knowledge of the complainant without her consent, or obtaining her consent by force or by means of threats or intimidation, or by fear of bodily harm, etc.

(2) the accused had begun to put his intention into execution by means adapted to its fulfilment.

(3) the accused had manifested his intention by some overt act.

His Honour then referred to a test developed to determine the existence or otherwise of those elements in any one case especially in the context of the second element from which the principle of proximity to the action to the offence emerged and on his part concluded that:-

... this test cannot be read into the terms of the Code. The second element I have referred to provides a definition of what acts are regarded as sufficiently "proximate" to constitute an attempt. Provided that the first and second elements are then made out, the third element will be proved, that is the accused will be shown to have manifested his intention by some overt act if the acts of the accused, in the light of any intention confessed by the accused or any intention inferred from all the facts, should plainly indicate the accused’s intention to commit rape. It is sufficient if the act relied upon is consistent with that intention. In my opinion, the Code does not require that the Crown should go further and show that the acts relied upon should be referable, independently of any intention confessed by the accused or to be inferred from his actions or from all the facts equivocally to an intention to commit the particular crime.

In the case before me, the relevant elements for attempted robbery within the meaning of s. 387 of the Code as to be as follows:-

(1) You assaulted a person with intent to steal money and at immediately before or immediately after the time of the assault used or threatened to use actual violence to any person or property in order

(a) to obtain the money intended to be stolen; or

(b) to prevent or overcome resistance to its been stolen; and

(2) You had begun to put your intention into execution by means adapted to its fulfilment; and

(3) You manifested your intention by some overt act.

You boarded the PMV bus at Koki with another person. When the bus got to Two-Mile hill you and your accomplice proceeded to hold up the bus’ crew namely, Peter Takis who had the days fare collections with him with intent to steal the money from him. Your accomplice stepped out of the vehicle and pointed a gun at the crew and ordered the crew to bend down whilst you proceeded to where the crew was, pointed a kitchen knife at him but the crew grabbed hold of the you and with the assistance of the passengers in the bus overpowered you. At that time, the driver tried to drive off from Two-Mile hill and your accomplice who was on the ground with a gun shot at him. The gunshot shattered the windscreen of the bus and wounded the bus driver that was in my view, to stop the driver from getting away. I therefore, have no difficulty in finding that you did commit the act of attempted robbery with assault or threats to obtain the money bag from the bus’ crew in accordance with the provisions of ss.7 and 8 of the Code. I have also no doubt in finding that you were in the company of others with a loaded firearm at the time of the attempted robbery and that brings your case under s. 387(1)(3) of the Code. I therefore return a verdict of guilty on the alternative count of attempted robbery under s. 387(1)(3) of the Code.

In relation to the attempted murder charge, what I have said regarding the definition for attempt of committing an offence equally applies to this case. The only difference is the variation of the elements so as to fit the offence of attempted murder, which is defined by s. 304 of the Code. The section reads:-

A person who –

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Consequently, the necessary elements for that offence has to be:-

(1) You must have intended to unlawfully kill Tom Eroa or with intent unlawfully to kill Tom Eroa did an act being of such a nature as to be likely to endanger that person’s life; and

(2) You began to put your intention into execution by means adapted to its fulfilment; and

(3) You manifested your intention by some overt act.

By virtue of s. 7 and 8 of the Code, you attempted either to unlawfully kill or with intent unlawfully to kill Tom Eroa aimed and shot at Tom Eroa with a gun which act was likely to danger Tom Eroa’s life. Your actions were manifested in the aiming and firing of the gun at Mr. Eroa with the view to stopping him from driving away so you could complete your unlawful purpose of stealing or robbing Peter Takis of money he had collected from bus fares and was holding at that time. The gunshot shattered the windscreen of the bus and wounded the driver, Mr. Tom Eroa. The act of armed robbery would have been completed if you proceeded to take from Peter Takis by force or with threat of use of force the bag of money he had at that time. Also, if it were not for the windscreen, Tom Eroa would have been killed by the gunshot fired at by your accomplice. I therefore, have no doubt whatsoever in finding you also guilty of attempted murder under s. 304 of the Criminal Code. A verdict of guilty is therefore, returned against you on both counts and you are accordingly convicted on both counts.

I order you to continue to be held in custody awaiting your sentence.
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Lawyers for the State: PUBLIC PROSECUTOR
Lawyers for the Accused: PUBLIC SOLICITOR