State v Walimini (No 2) [2004] PGNC 162; N2627 (23 June 2004)

N2627

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1374 of 1999
CR 1375 of 1999
&
CR 1389 of 1999

THE STATE

v.

RAPHAEL WALIMINI

Kimbe: Sevua, J
2004: 17th, 18th & 23rd June

CRIMINAL LAW – Armed robbery – Attempted armed robbery – Unlawful use of motor vehicle – Evidence – Confessions – Admissibility – Weight to be attached.

Counsel:
F.Popeu for State
O.Oiveka for Accused

23rd June 2004

JUDGMENT ON VERDICT

SEVUA, J: The accused, Raphael Walimini, of Yaujage village, Maprik, East Sepik Province, is indicted with one count of attempted armed robbery, one count or armed robbery and one count of unlawful use of motor vehicle, contrary to sections 387 (1) & (3) (a) & )b), 386 (1) & (2) and 383 (1) (a) & (b) respectively, of he Criminal Code. He pleaded not guilty to all three charges.

The State alleged that on 27th July 1998, the accused with 8 others, armed with two factory made shot guns, one home made shot gun, one pistol and three bush knives went to Forest Hill at Buvussi on the Kimbe – Bialla Highway to rob a PMV which was travelling from Kimbe with Lavege villagers who had received their royalty monies. The accused and the others had planned to wait for this vehicle and rob the passengers.

Between 3 – 4 pm that day the PMV driven by one Joram Kibe with one Patrick Waiyang as his offsider arrived at Buvussi and began climbing the hill slowly. The accused and one of his companions, armed with two factory made shot guns came onto the road and tried to stop the PMV. They were alleged to have gone to the driver’s side and pointed the guns at the driver and demanded that he stop the vehicle, however the driver did not stop so the accused’s companion fired a shot at the driver’s cabin, which missed the driver, but struck the offsider, Patrick Waiyang on his face. The PMV did not stopped but continued uphill.

The State further alleged that the accused and his companions then turned onto the next vehicle which was travelling after the PMV, a Mitsubishi L200 double cab registration PAA 844 belonging to the Buvussi Health Center and driven by one Mambu Sina. The accused then threatened the driver and ejected him form his vehicle and stole it and drove after the PMV. They pursued the PMV, however they did not catch up with it so they escaped in the stolen vehicle.

In the meantime, when the driver of the PMV, Joram Kibe realized that his offsider had been injured he turned around and drove Patrick Waiyang to Kimbe General Hospital, however Patrick Waiyang had died on the way to the hospital and when the PMV arrived at the hospital, Patrick Waiyang was pronounced dead on arrival.

The trial involved a voir dire in which the accused objected to the admissibility of the confessional statement dated 19th October 1998 and the record of interview conducted on 21st October 1998. At the end of the voir dire, the Court ruled that the confessional statement and the record of interview be admitted into evidence. The confessional statement is Exhibit "Ä" and the record of interview, Exhibits "B" and "C" respectively. The ruling is the subject of a separate judgment delivered on 17th June 2004, and is available as a matter of public record. I should add that the State adduced evidence from two police officers whose evidence in the voir dire is also relied on by the State in the trial. This can be done as was held in The State v. Kusap Kei Kuya [1978] PNGLR 263. Therefore, the prosecution’s case in this trial rests on the confessions which the accused had made, and which the police had recorded in the confessional statement and the record of interview.

It is therefore necessary to refer to those Exhibits to follow the events of the 27th July 1998 at Buvussi Mountain.

In Exhibit " A", the confessional statement, the accused said he was at Section 12, Kavui when one Badi Kawas of Dagua, East Sepik Province, came to him and told him of the planned robbery at Buvussi Mountain where they already had information that a vehicle with a lot of money would be passing through Buvussi Mountain. The two then went to Buvussi Monutain where the others had already gone to wait at the rendezvous. The accused named the others involved in these crimes as Gibson Lulip, who was armed with a single shot shotgun; Badi Kawas, armed with a home made shotgun; Roymond Jubu, armed with a pistol, and those armed with bush knives were Ken Kira of Maprik; Joe Joe of Dagua; Joe Kaveu of Mai village, Hoskins; John Waine of Simbu and Komsi Magambu of Maprik.

As the accused and his companions waited at Buvussi Mountain, the blue Dyna open back truck, loaded with passengers appeared and began climbing up the hill. They all rushed towards the truck trying to stop it, but it continued uphill so they fired a shot at the truck. The accused then shot at one of the rear tyres but the truck did not stop. The accused said he then ran up the mountain and escaped as the others stole another vehicle and escaped in it. The accused read and signed the statement on 19th October 1998.

In the record of interview, Exhibit "B" and "C", the accused also made similar confessions. He said Badi Kawas gave him a single shot shotgun with two bullets that day. He said he was not really sure about the vehicle; however he was there with the others to rob the vehicle of royalty monies. As they waited, the vehicle arrived and the boys rushed onto the road and fired shots at the vehicle, which he described as a blue open back Dyna truck loaded with many passengers. He named those who fired shots at the truck as Gibson Lulip, Raymond Jubu and Badi Kawas. The accused said that when he heard the shots being fired, he too fired a shot at the rear tyres of the vehicle.. He denied firing the shot at the front or driver’s cabin, but admitted firing at the rear tyres. He said Gibson Lulip and Badi Kawas were at the front of the vehicle so they must have fired the shot at the driver’s cabin. The confessions made by the accused obviously connected him to the first charge in the indictment.

In relation to the second charge of armed robbery of the Buvussi Health Center vehicle, and the unlawful use of it, the accused denied being involved. He said in both the record of interview and the confessional statement that he escaped after the failed robbery of the Dyna truck and was not amongst the others when they robbed the second vehicle, that is, the Buvussi Health Centre vehicle and drove away in it. There is no other evidence against the accused in respect of the second and third charges.

In the defence case, the accused, in the exercise of his constitutional rights, elected to remain silent. However, with the consent of the prosecution, he tendered two witnesses’ statements. The statement of the driver of the truck, Joram Kibe, and the statement of a passenger, David Rian. Both were admitted and marked Exhibits "D" and "E" respectively.

The two statements which comprise the evidence of the accused in this trial do not specifically exclude the accused from the scene. It is true that some of the criminals involved in this incident were masked, but the witnesses did not say the accused was not there at the scene of the crime. They merely gave the descriptions of some of those involved. In my view, under the circumstances, they could not have identified any one, let alone the accused.

So the state of the evidence in this case is that on the one hand, the State relies on the confessions and or admissions made by the accused in two separate documents, while on the other hand, the defence relies on the statements of the driver of the truck and one of the passengers.

It was submitted by the defence that the allegations against the accused are mere allegations. Since the confessional statement and the record of interview were the subject of a voir dire and were thereafter admitted, the Court is then asked to attach the necessary weight to that evidence. In comparing that evidence with the evidence of the accused, which comprised basically of the statements of the driver and a passenger, the defence evidence is from eye witnesses who described the persons who held up the victims at Buvussi. Such descriptions as light skin and rasta hair etc do not fit the accused therefore there is conflict in the overall evidence. It was finally submitted that although the accused did not give evidence, the prosecution still has the onus of proving the guilt of the accused beyond reasonable doubt that he committed the crimes, the subject of the indictment against him in this trial.

The State submitted that there is no dispute that there was an attempted robbery, and shots were fired injuring Patrick Waiyang, the offsider. There is no dispute that he died on arrival at Kimbe General Hospital. There is no dispute that the suspects failed to rob the first vehicle so they turned to the second vehicle owned by Buvussi Health Centre driven by one Mambu Sina, who was held up and his vehicle stolen from him. Furthermore, there is no dispute that the second vehicle was used to pursue the first vehicle, but failed to catch up so the occupants escaped in it.

The State submitted that the accused was one of those suspects and in the course of proving that through the tender of the confessional statement and record of interview, the accused objected to the admissibility resulting in a voir dire, after which, the Court admitted the documents into evidence. The State says it then becomes a matter of weight and value to be attached to the documents.

All the evidence in the voir dire becomes evidence in the main trial therefore the confessional statement and the record of interview form the State’s evidence against the accused. See: The State v. Kusap Kei Kuya [1983] PNGLR 263. The accused has made confessions and admissions in the documents that the Court admitted after the voir dire, which became Exhibits "A", "B", and "C" respectively.

There is no better evidence than his own admissions which explained the commission of the crime the subject of the first count against him. He admitted to being there at the scene of the crime; that Badi Kawas had gone to him at Kavui Section 12 and told him about the planned robbery; that he had accompanied Badi Kawas to Buvussi Mountain and met the others who were already there; they planned to rob the truck carrying Lavege villagers who had collected their royalty monies in Kimbe; he fired a shot at the rear tyres of the truck in an effort to stop the vehicle after he heard shots being fired in the front of the vehicle and he named those involved in these crimes.

In my view the evidence against the accused is overwhelming and there is no reason why the Court should not attach weight and value to it. It is direct admissions from the accused’s own mouth and I accept that evidence.

I find as facts the following:-

(i) Badi Kawas had gone to the accused at Section 12, Kavui and told him about the planned robbery at Buvussi Mountain on 27th July 1998.
(ii) Both the accused and Badi Kawas had gone to Buvussi Mountain to meet the others

who were already there at the rendezvous.

(iii) The accused was armed with a factory made single shot shotgun and two bullets.
(iv) The accused was involved in the attempted robbery of the blue Dyna open back truck carrying passengers towards Bialla.
(v) The accused fired a shot from the shotgun he had at the rear tyres of the truck in an attempt to stop the vehicle so he and the others could rob the passengers.
(vi) The accused was part and parcel of the plan to commit this crime, and he actively participated in the commission of the crime of attempted armed robbery.

From these facts, I am satisfied beyond reasonable doubt that the accused is guilty of the crime of attempted armed robbery, the subject of the first count in the indictment presented against him on 10th June 2004. I therefore convict him accordingly.

In respect of the second and third counts, that is, the charge of armed robbery of the Buvussi Health Centre vehicle and the unlawful use thereof, the accused denied being involved. There is no other evidence against him other than the allegations contained on the facts for purpose of the arraignment, which were put to him and he subsequently denied.

I find that there is no evidence against him on those two charges and find him not guilty. I acquit him of the second and third charges.

Accordingly, the accused is guilty of the attempted armed robbery, but not guilty of armed robbery and unlawful use of motor vehicle

Lawyer for State : Public Prosecutor
Lawyer for Accused : Public Solicitor