State v Bomai [2004] PGNC 123; N2643 (23 August 2004)

N2643

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. 1303 of 2002

THE STATE

-v-

JOHN BOMAI

Lae: Manuhu, AJ

2004: 17th, 18th & 23rd August

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Armed robbery – Circumstantial evidence - Participation in commission – Vehicle gave way to accused at crossing and got robbed by others.

Case cited:
Pawa v the State [1981] PNGLR 498.

Counsel:

Mr. J. Pambel, for the State.
Mr. Inua, for the Accused.

23rd August, 2004

MANUHU, AJ: The accused, John Bomai, is charged that he, on 2nd August, 2002, at Malahang, Lae, stole from James Narol with actual violence, a red Nissan Urvan fifteen seater bus, registration no. LAL 806, the property of White Corner Investment Limited.

James Narol had driven the said vehicle from his company premises onto the main road where there is a crossing. James Narol had to stop the bus at the crossing to give way as the accused and another began to cross. At that point in time, three other men rushed to the vehicle. One had what appeared to be a bayonet and had it pointed at the victim. Others had guns. The victim was threatened, assaulted and forced out of the vehicle. The three men got into the vehicle and drove away.

The State’s case is purely circumstantial. The law relating to circumstantial evidence is well established in this jurisdiction. In the Supreme Court decision of Pawa v the State[1], Andrew J said:

"I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 when he said:

'I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] 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 guilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] 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 mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense'."

The State alleges that the accused was involved in the robbery because at the crossing, he took his time to walk across and he stood on the crossing for about one minute to facilitate the robbery. That is the only evidence against the accused.

Whether the accused deliberately facilitated the robbery is dependent on what was in his mind, which is not easy to ascertain, especially when the prosecution must prove its case beyond not most but all reasonable doubts. But what is in a person’s mind, in the absence of his admissions, can only be inferred from his actions.

In that regard, none of the witnesses saw the accused associating with the three men prior to him crossing the road. It was the accused who said in his record of interview that the three men approached him at the market to light their cigarettes but he did not know who they were. One of the prosecution’s witnesses also said that the accused crossed the road to get to the Bumayong Bus Stop but was seen getting on a bus headed for Lae City after the robbery. The same witness said that the accused was new to him and must have been one of the trouble makers. The accused in his evidence admits that he had been in Lae for two years only.

I take into account also that the accused was only 15 years old at that time. He was interviewed a day after the robbery and maintained his innocence. He denied any plan or discussion with the three men to commit the robbery. He maintained his denial when he gave evidence. His actions prior to and after the robbery do not seem like that of a 15 year old that had just assisted in the commission of a serious crime in a reasonably crowded part of the street. If the accused is one of the three men, why would he be left behind to face the risk of being attacked by the victim, the company security officers or the bystanders? After all, he was only a few meters from the stolen bus and was able to escape with the three men if he was one of them.

I also take into account that James Narol’s impression of the accused person’s actions is the same as that of Wengo and others. I would have felt the same too but there is also the possibility that we could all be wrong, especially when, in Lae, pedestrians will rush onto a crossing but will take their time to cross as if their legs have suddenly become too heavy to move. It is worse with crossings outside of the city, and Malahang is one of them.

The prosecution is required to prove its case beyond all doubts. This requirement recognizes the universal right of personal liberty which is found in s. 42 of the Constitution. We sometimes hear that it is better to have a guilty man free than to have an innocent man in jail. Such is the importance of the right of personal liberty which is the reason for the heavy burden upon the State. Consequently, an accused should only be convicted if his guilt is the only reasonable conclusion.

In this case, it is possible that the accused walked upon the crossing in the manner already described to facilitate the robbery but the evidence is inherently dangerous to base a conviction on. The accused was indeed mischievous but it is possible that that mischief had no connection with the armed robbery. With such reasonable doubt, I must find the accused not guilty and I acquit him.

Verdict : Not guilty
_________________________________________________________________
Lawyer for the State : Public Prosecutor.
Lawyer for the Accused : Paraka Lawyers.

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^[1] [1981] PNGLR 498 at 501.