State v Dua [2005] PGNC 100; N2854 (13 May 2005)

N2854

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1111, 1113, 1114 OF 2003

THE STATE

v

WAMA DUA, DANIEL BEMA & JOHN GOGA

LAE: KIRRIWOM, J
2005: 05th, 10th & 13th May

CRIMINAL LAW – Particular Offence – Robbery – identification – recognition of known persons - eye witness account supported by circumstantial evidence of subsequent conduct of accused after the offence – evidence of suspected accomplice – no evidence that prosecution eye witness was an accomplice – evidence untainted and reliable – evidence of identification was reliable – verdict of guilty.

EVIDENCE – Accomplice evidence – Need for corroboration – Proof of witness as accomplice – Mere suspicion or accusation insufficient.

PRACTICE AND PROCEDURE – record of interview – exculpatory statement exonerating one accused by co-accused – co-accused failed to appear and not on trial – record of interview inadmissible per se – evidence irrelevant and immaterial.

Cases cited:
The State v Titeva Fineko [1978] PNGLR 262
The State –v- Amoko-Amoko [1981] PNGLR 373
Reg v Gregory Ino Gemai [1974] PNGLR 2
John Beng v The State [1977] PNGLR 115

Counsel:
J. Wala for the State
R. Yombon & Mr Zilong for the Accused

DECISION

13th May 2005

KIRRIWOM, J.: Wama Dua, Daniel Bema and John Goga have all been charged with armed robbery. Indicted together with them also was one Peter Saina who had escaped from custody while on remand in Buimo and is believed still at large.

The State case is that in the early hours of the morning between 1:00am and 1:30am or thereabouts on 16 December 2002, the accused before the Court in company of three other accomplices who have not been apprehended held up the lone security guard and one Kaden Koyanda, a Chef with Bugandi Shell Service Station with guns and knives and stole money in cash totalling K37, 332.00 that belonged to the Shell Service Station.

All three accused denied the charge and raised defence of alibi. The issue in the case was one of identification and who the court believed.

State called several witnesses including Kaden Koyanda, its only eye witness who had face to face encounter with the robbers on the night in question. Although he is the prosecution star witness on whose evidence the prosecution case substantially rests, his story also adds to the overall chain of circumstantial evidence presented before the Court by the State and the defence that go to establish the prosecution allegation of robbery.

There is no dispute that there was robbery at Bugandi Shell Service Station on the night of 15th December 2002 or in the early hours past midnight of 16th December 2002. The thieves went to the premises during a heavy downpour of rain that night while the premises was on stand-by power after a black-out from the main city power supply. After immobilising the security guard and Kaden Koyanda by tying them both up and placing them in a shed at the back of the Service Station, the criminals then used oxy cylinder to cut open the steel door to the office and also cut into the steel safe and stole the money and escaped. Some money bags, especially coins were left lying around on the floor in the office.

It is also not disputed that on the night of this robbery, these three accused were drinking alcohol and the following morning John Goga and Daniel Bema were apprehended at 2-mile block while asleep. Daniel Bema was arrested together with two moneybags, one was empty and the other still had coins in it, approximately K800 when counted subsequently at the police Station, and taken to the station with them. I will explain how he came into possession of those moneybags as far as he is concerned when I come to his evidence later in the judgment.

John Goga was also apprehended when he was fast asleep except for Wama Dua who was arrested the following day at his work place at Bugandi Shell Service Station. I will discuss their side of the story later in the judgment.

The issue in this trial is one of identification. The only witness who saw and identified these three accused is Kaden Koyanda. Defence sought to show in the trial that Kaden Koyanda was not an independent eye witness as he claimed, he was indeed an accomplice to the robbery and he was part of the group of unknown persons who committed the robbery. Defence tried to show this in the evidence of Wama Duma who claimed he saw Kaden Koyanda’s wife and son in-law carrying into their house a money bag hidden under the shirt early in the morning about 6:30am to 7:00am after the robbery.

The three accused were identified by Kaden Koyanda who saw them at arms length when they pointed the gun at him, bound his legs together with rope and tied up his hands behind his back and left him in the shed together with the security guard whom they had earlier tied up and left there. Kaden Koyanda is a chef who prepares food for the fast-food inside the service station. On the night of 15th December 2002 he started work at about 9pm. After he cleaned up in the kitchen and took the meat out of the freezer and placed it outside to be defrozen for cooking in the morning, there was power blackout. It was raining heavily and he went to the back and started the stand-by generator. Back inside he saw his sleeping area was flooded with rain water from a leak in the roof. He started sweeping the water out and as soon as he opened the back door and poked his head out to sweep out the water, he was confronted by armed men, one pointing gun at his cheek and another pointing a knife at his nose. There was light, a fluorescent tube, above the door that illuminated the place outside the door. He had already seen them and recognised some of them when they blindfolded him with a piece of cloth fastened around his eyes.

He said they were not masked except for Wama Dua who wore a black cap on his head which he pulled down his face. Amongst the persons he saw were Peter Saina whom he called Peter Rimbu. He was from Kagua Southern Highlands, a former employee of the company whom he knew well as a fellow Southern Highlander. Others persons he saw were Wama Dua, Daniel Bema whom he referred to as Six Battery, Muli Kapia and John Goga whom he referred to only as Goga. He said he knew them all. He said Wama Doma was a security guard at the Service Station but was off that night because Sunday was usually his off-days. He said both Goga and Six Battery were regular faces at the Service Station and at 2 mile block where they all live together. There is no dispute about Daniel Bema’s nick name as Six Battery. Everyone in the block calls him by that nick name and he has come to be known by it as he states so in his record of interview. He said he knew these persons quite well and he recognised them that night. After tying him up they left him on the wet floor but he told them to take him to the potato shed. That is where they left him together with the security guard who was also already tied up there. They covered them both with canvas and stationed someone there to guard them as the others went about breaking open the office door with oxy. Sometime later when he and the security guard felt satisfied that the thieves had decamped as the noises had subsided, they freed themselves and inspected the damage. The thieves took the money from the safe which they also cut open with oxy and left behind on the floor were bags of money filled with coins.

He said he gave the names of the persons he saw to the Police in the morning. Defence wanted to discredit his evidence by trying to show that he was apprehended as a suspect in the robbery together with the accused now before the court and he did not call their names that same morning of the robbery until much later only to buy his freedom. It was the defence proposition that the witness himself and other unknown persons who were responsible for the robbery. This suggestion by the defence did not fit in with the general trend of the evidence when the accused John Goga and Daniel Bema were apprehended already that same morning by the Police following raid of 2 mile block which was the nearest settlement to the Service Station except for Wama Dua who was arrested the next day on 17 December, 2002. Unfortunately both Wama Dua’s evidence and Daniel Bema’s evidence do not advance the defence as suggested by their counsel especially when Daniel Bema was found with bags of money and Wama Dua by his own evidence deposes to seeing money bag being hidden inside the shirt by Kaden Koyanda’s son in-law as he and Koyanda’s wife returned to the house that morning. One way or another, both accused had something to do with either being in possession or seeing money bags being part of the bags of coins stolen from the Shell Service Station that morning when apprehended. If both were telling the truth, Daniel Bema took no steps to return the money bags or report to the police of his find until he was caught with them as he slept in Wai Givisa’s house. Wama Dua made no mention of seeing a money bag with Koyanda’s son in-law, hidden inside his shirt early that morning. He did not even tell the police about it.

Wama Dua raised a defence of alibi. He said at the material time in question he was at a card game inside the block at 2 mile gambling and drinking beer. About 10 or 11 pm he went home to his family, washed, had his dinner and went to bed. His wife supported his story. Both he and his wife knew Kaden Koyanda quite well. They resided in the same house but separate rooms and in close proximity with each other and often shared things with each other from time to time. Neither could explain why Kaden Koyanda could suddenly turn against them by accusing Wama Dua as a suspect who held him up on the night of 15th December 2002 going into the early hours of 16th December 2002.

Daniel Bema also knows Kaden Koyanda whom he sees from time to time when he goes to the Service Station and he had no grudges against him and he could not understand why Kaden Koyanda could suddenly accuse him of being involved in the robbery. He said on the night of this robbery took place he was at Boundary Road with a Chimbu family that held a small feast which is akin to an initiation to mark the occasion when a young girl reaches puberty by experiencing her first menstrual or monthly cycle. At the advent of her first menstruation the girl is confined and not allowed out for a period of time until the family is ready. Her release from confinement is accompanied by a small feast of family members and friends as is the custom in many parts of PNG but seems to be dying away today. Daniel Bema was in such a gathering where they ate, drank and sang till next morning. He said about 6 o’ clock in the morning as he made his way backs to his place he went into a small bush near the Shell Service Station to relieve himself when he found two money bags. He took the two money bags home with him and went to sleep.

Wai Givisa took the money bags from Daniel Bema and placed them inside his house. He said Daniel Bema forced him to take the money and put it away. Daniel resided with him in his block at 2 mile and shared the same house but in separate room. He took the money and left them inside the house and proceeded to work at Malahang Industrial Centre. He was troubled by this that morning at his place of work until the police picked him up about lunch time in connection with the money found in his house. This evidence was not refuted by the accused.

Defence wanted the court to believe that the accused were innocent of the charge, they were falsely accused by Kaden Koyanda who named them after they were all in custody for sometime simply to buy his way out of this trouble. In other words he was an accomplice and as an accomplice his evidence must be treated with caution and not be relied upon without there being an independent corroboration of his story. The law on evidence of accomplices is clear as discussed in The State v Titeva Fineko [1978] PNGLR 262 and The State –v- Amoko-Amoko [1981] PNGLR 373. But there must be clear or direct evidence implicating the witness to the crime, not just mere speculation or conjecture. In this case no evidence was led to show that the witness was strongly implicated in the robbery other than the fact that he and the security guard were at the premises when the robbery took place and he took no step to report it until the supervisor reported for work the next morning and they told him of the robbery. A further suspicion against the witness stemmed from the fact that one of the persons named by the witness as amongst the group of robbers, namely Peter Saina was a close associate of the witness who called him ‘uncle’. Peter Saina worked as ‘pump boy’ at the Service Station before the trouble but was no longer employed there at the time. A further accusation of the witness as an accomplice stemmed from the evidence alleging money bag being seen in the possession of his son in-law. Defence did not pursue this line of cross examination in any detail and I cannot make head or tail of this accusation.

But the point must be made here that the fact that the key witness of the prosecution might be or is an accomplice does not discredit his evidence nor does it render him a total liar nor does it mean that his evidence is to be rejected as it is contaminated or a fake or a falsity. The court must examine his evidence with caution and as long as it finds support through other evidence in the case, there is no reason to reject his evidence. It must be believed.

Similarly, it must be noted that it is a normal police practice when a crime is reported that anyone who might have some knowledge of the crime is either a witness or a suspect. Often a witness can be a suspect at the same time and vice versa. It is a normal practice to trade with suspects by offering some form of rewards such as immunity from prosecution in order to secure evidence against the accomplices. Evidence tendered through such witnesses is admissible except the weight to be attached to it. Although it was implied in this case by the defence, there is no evidence to show that such trading had taken place and I reject any such notion attributed to the witness Kaden Koyanda. He was locked up with the other suspects which is a normal procedure and after three days the police decided to discontinue the case against him for reasons known to the police. That is their discretion. As long as that discretion is properly exercised, the Constitution guarantees that power to the Police Commissioner and he is not subject to any direction or control.

On the issue of credibility of witnesses, I accept Kaden Koyanda as having told substantially a true story of what he saw that night. This is a case that hinged on identification and supported by surrounding circumstances. I cannot imagine him lying to this court and naming all those persons, his own workmates at one time or another, persons whom he had occasion to chat and interact with socially in the communal area at 2 mile where they live together as a family and more so, where payback system is a way of life, without fearing for the safety of his own life and that of his family by way of reprisals from those he named and their relatives. I found his story credible. He knew the perpetrators of the robbery and they knew him. They purposely took the gamble that he would not blow the whistle on them which was their biggest mistake. They did not mistreat him other than simply tie him up and place him in the shed. They even carried him to the shed when he protested being left on the flooded floor. They may have even thanked him or attempted to thank him the next morning by offering him some of the money they had stolen as insinuated by Wama Dua seeing money bag in the possession of his son in-law in order to buy his silence, but that does not render his evidence inadmissible nor unreliable. I am satisfied that this robbery was committed by persons whom Kaden Koyanda knew. What did not come out in evidence from Kaden Koyanda, as he was not asked in cross-examination, is whether he knew about this robbery before it happened. All that the defence purported to show was that Kaden Koyanda was the ‘insider’ who collaborated with outsiders excluding the accused persons in this case to commit this robbery. But what seems more probable of having happened is collaboration or conspiracy between him and the accused with others not apprehended and charged to commit this crime. Whichever way the witness Kaden Koyanda gets implicated or the speculation goes, his evidence remains untainted and strong.

This then brings me back to the primary issue of identification. There is no question about the identity of the perpetrators of this robbery. There is ample evidence of identification. Identification is by recognition of persons he had known both at the work-place, in their communal living quarters and the general locality at 2 mile and the Shell Service Station where they come and go every day as persons he interacts with all the time. He sees Daniel Bema or Six Battery as he is commonly known together with John Goga. Both are from Chimbu province. In this case John Goga tried to isolate or distance himself from Daniel Bema claiming he did not know him well as they were from different parts of Chimbu. This is why I treat his evidence with suspicion in the same way as I treat the evidence of his accomplices.

It is not a coincidence that all the three accused were under influence of alcohol or were out drinking in the course of the night of this robbery. Daniel Bema was drinking with his wantoks at Boundary Road where a customary feast went on all through the night till next morning, Wama Dua drank with his friend Raymond down at the block at 2 mile and playing cards and returned home and slept and John Goga went drinking with his friend John Kay and two other boys from Kimbe at Robert club 3 Block. They drank until 2am or thereabout and they took him back to his block and he proceeded to watch a card game in progress and slept in front of a coffee house till next morning when the police picked him up. Except for Wama Dua, both John Goga and Daniel Bema were quite drunk on that morning they were picked up at the block at 2 mile by the police. Wama Dua was arrested only when mentioned by Kaden Koyanda but he admits to being out drinking that night and his wife confirmed this.

There can be no coincidence that these three persons were drinking at three different places that night. I am satisfied that they were together that night. It was them who held up their own friend Kaden Koyanda and immobilised him and the security guard from raising the alarm by binding their legs and arms and blindfolded they covered them with canvas and left them in the shed. Unfortunately the court does not know the security guard’s side of the story of how he was immobilised. He probably may have fallen asleep on the job at that time of the night when the thieves struck and made it all too easy for himself and the thieves. I will not delve into this speculation. In any event his evidence is immaterial as far the prosecution case is concerned.

Defence sought to tender into evidence record of interview of Peter Saina, a co-accused who was not on trial with these accused. The reason for this counsel said was that the record of interview exonerated the accused before the court. I rejected that evidence and did not allow the defence to pursue that line of cross-examination of the arresting officer Detective Constable David Miamel primarily because the author of that out-of-court document was not on trial. The law is that an admission in the record of interview is only evidence against the accused who made that admission. A confession or a confessional statement made by an accused in a multiple trial involving several accused where an inculpatory or exculpatory statement incriminating or exonerating another accomplice is made is only evidence for or against the author of that document to the exclusion of all other persons.[1] An out-of-court document is not a reliable evidence for anyone other than the author of that document. Against other persons it is secondary and strictly inadmissible. If Peter Saina gave statement to the police that exonerated these accused now before the court, this is not material evidence for them, and strictly inadmissible in that form in favour of the accused. The best way for that evidence to be tendered in court in their favour is by sworn testimony from the relevant witness concerned. As an accomplice in the case, that evidence would be accorded the normal caution and treatment as the court would of accomplice evidence before it can decide to either rely on it or reject it. All three accused had their records of interview admitted into evidence by consent. There are no admissions; all accused exercised their right to remain silent although John Goga denied any involvement in this robbery.

Given the time of the night when Kaden Koyanda made his observation and saw these accused, I am satisfied that it was these accused he saw and recognised. He knew them well. They also knew him and they also knew that he recognised them and was cognizance of what they were up to. The robbery did not take place in seconds or minutes and was over in a flash. It took hours where oxy cylinder was used to cut not only the office door open, but also the safe itself where the money was kept. This robbery needed a vehicle to transport the necessary tools such as oxy cylinder and acetylene and accessories to the site to set up and then cut through the door and safe. This was a massive well planned robbery that was executed by persons who were familiar with the witness Kaden Koyanda and possibly the security guard and who knew the general lay-out of the premises and who knew which entrance to use without being observed by anyone or motorist travelling up and down the highway at that time of the night. The front entrance could easily attract attention from anyone who might be on the road at that time.

Although I warn myself of the possible danger of a mistaken identification of innocent persons by a single witness as sometimes happens and which is why the law strongly recommends this caution being exercised as stated by the Supreme Court in John Beng v The State [1977] PNGLR 115, this case is far from it. The witness knew who the perpetrators were. He is even an accomplice and police were right to treat him as a suspect. But his evidence is good and reliable.

On the evidence before me, I am satisfied beyond reasonable doubt that these accused were amongst the group of persons who held up Kaden Koyanda on the date and time in question and broke into the office and the safe at Bugandi Shell Service Station Lae and stole K36, 332.00. I therefore find them all guilty as charged and I convict them accordingly.

Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Paraka Lawyers

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^[1] It was held in Reg v Gregory Ino Gemai [1974] PNGLR 2 that “(1) Admissions made to the police and statements from the dock made by each accused must be isolated from the admissions and statements made by either of the other accused and were not to be received in evidence for the purpose of the case against either of the other accused. (2) Inculpatory statements made in the course of the interviews should be approached with caution.”