State v Saku (No 2) [2006] PGNC 160; N3283 (5 December 2006)

N3283

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1771 OF 2003

THE STATE

-V-

RICHARD SAKU,
PETER KEN YAHU &
NAKIKUS KONGA (JR.) (No.2)

Kokopo: Lenalia, J.
2006: 23 October
5 December

CRIMINAL LAW – Trial – Evidence - Confessional statement – Admissions made therein - Record of interview – Confessional statement and record of interview accepted into evidence – No notice of voir dire trial issued to the State – Court finds that confessional statements were obtained in accordance with Rules 2 and 5 of the Judges Rules..

CRIMINAL LAW – PRACTICE AND PROCEDURE – Burden of proof – Evidence - Circumstantial evidence – Inferences to be drawn – Question of fact – Relationship of inferences to the finding of facts – Guilt of second and third accused – Only rational inference.

Cases Cited:

R v Toronome Tombarbui [1963] PNGLR 55
R v Bularia Gaio [1964] PNGLR 261
R v Lupalupa Sisarowe [1967-68] PNGLR 455
R v Ginitu Ileandi [1967-1968] PNGLR 496
Constitutional Reference N0.1 of 1977 under s.19 of the Constitution [1977] PNGLR 362
John Peng v The State [1977] PNGLR 331
The State v Marawa Kanaio [1979] PNGLR 319
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
The State v Kiki Hapea [1985] PNGLR 6
The State v Anton Ames Turiki & Wickie Jack Paltem [1986] PNGLR 138
Allan Koroka v The State & Mariano Wani Simon v The Sate [1988-89] PNGLR 131
The State v Garitau [1996] PNGLR 48

Other cases cited:

Barca v The Queen [1975] HCA 42; (1976) 50 A.L.J.R. 108
McDermott v R (1948) 76 C.L.R. 501

Counsel:

A. Kupmain, for the State
T. Potoura, for the 1st Defendant
P. Kaluwin, for the 2nd and 3rd Defendant

5 December, 2006.

1. LENALIA, J: The three accused are jointly charged for one count of aggravated armed robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code. After the trial had been almost completed, the first accused, Richard Saku applied through his lawyer to change his not guilty plea to that of a guilty plea. No objection was raised by the State Prosecutor and the court re-arraigned accused Richard Saku. He then pleaded guilty to the charge. The allocutus was administered and his case was adjourned for addresses on sentence after the ruling on the verdict on all the evidence put to the court by the prosecution and the two accused.

2. The following ruling only relates to the first and second accused. That is to say Peter Ken Yahu and Nakikus Konga Junior.

3. The State evidence against the two accused is that on 28 May 2003, at Talina AGMARK premises in Kokopo, the two accused were amongst a group of men of course including the first accused who conducted an aggravated armed robbery upon Ms. Julie Tamur and Daniel Tarutia who were AGMARK employees and stole from them with actual violence a sum of K25, 000.00 and a motor vehicle, a white single cabin utility Reg.N0.IAA.685. The cash sum stolen and the vehicle were the property of AGMARK Ltd.

4. Evidence tendered were a number of statements from eye witnesses. Exhibits "1" "2" and "3" and "4" to "19" on the back of the indictment are statements of other witnesses. In case of eye witnesses Ms. Julie Tamur, the driver Mr. Daniel Tarutia, an AGMARK Ltd, security guard Billy Rusiat and David Taplar all gave an account of how the robbery was conducted.

5. In case of Julie, she is a cashier with the company and was in that vehicle with the driver Daniel returning from the Bank of South Pacific after doing a withdrawal cash-out payment for salaries of the company employees in the head office and the Rabaul branch office.

6. As they drove into the car park, Ms. Julie left the vehicle with the black bag containing more than several small bags. Those bags contained the amount of money allegedly stolen during the hold up. As Julie was walking out of the vehicle, a man pointed a gun at her. She shouted alarming the driver. As Daniel heard the shouts he came out of the car only to be surprised by another armed man pointing a factory made gun right on his forehead.

7. The gang demanded Julie to give them the money bag. Fearing for her life, she handed over the money bag to them. Two of the gang members got into the back of the vehicle while two or three demanded the driver to give them the vehicle ignitions.

8. The gang insulted and swore at the driver and Julie and so the driver handed over the vehicle key to one of them. In fact they were threatened to be shot if they did not give up the money and the vehicle keys. The gang further ordered Daniel to get onto the back of the vehicle. He quickly got behind a vehicle that had been parked there earlier and took cover.

9. The gang then got into the stolen vehicle and drove away. Only the company vehicle was recovered sometime later.

10. A part from the above evidence, the records of interviews obtained from the second and third accused were tendered by consent. In case of the accused Peter Ken Yahu, he chose to remain silent during the course of interview exercising his Constitutional right under Sections 37 (4) (a) (b) & (c) and 42 (2) of the Constitution. As well, there was no confessional statement obtained from this accused.

11. In case of the third accused, Nakikus Konga Junior, he obviously admitted during the record of interview that he was at Talina AGMARK company premises and he admitted to being involved in the robbery that morning.

12. He further admitted that he was there together with three other mates. In his confessional statement, the third accused mentioned the names of the three persons who were involved in the armed robbery at Talina. He named them as Jerry Tano, Peter Ken Yahu and Richard Saku.

13. A part from the above admissions, it is clear from the confessional statement obtained from accused Nakikus Konga Junior that when they were sitting down at the Kokopo beach front, they saw the AGMARK vehicle parked in front of the Bank of South Pacific. They then left the beach and went to Talina to wait for the staff to return with the money. When the two staff returned, they held them up.

DEFENCE CASE

14. Only accused Richard Saku gave evidence. His evidence was total denial. After he had given his evidence, he instructed his lawyer to change his not guilty plea into a plea of guilty.

15. I heard full submissions from both lawyers, that is Mr. Potoura of counsel for the accused and Mr. Kupmain for the prosecution. Since there was no dispute over the application to change the plea from not guilty to guilty, I re-arraigned the accused and took his plea. He pleaded guilty to the charge. I then accepted the guilty plea and convicted him for the charge of armed robbery.

16. Allocutus was taken and his case was adjourned for addresses on sentence pending the outcome of the ruling on the verdict of the second and third accused cases.

17. The second and third accused (Peter Ken Yahu and Nakikus Konga Junior) were warned in terms of Sections 570 and 572 of the Criminal Code whether they wanted to give evidence and later to call any witnesses on their own wish to give evidence on their behalf. They were also informed that, if they did not wish to give any evidence, they could make unsworn statements from the dock or choose to remain silent. The two accused indicated that they did not want to give any evidence nor make any unsworn statements or call any witnesses. That was the end of the defence case.

ADDRESSES ON VERDICT

18. The two accused did not give evidence nor did they call any witnesses, so the State Prosecutor took the lead in addressing the court first on the verdict. Mr. Kupmain of counsel for the State submitted that the State has proven its case beyond reasonable doubt against the second and third accused.

19. He submitted that, in the record of interview with accused Nakikus Konga (Jr.) and the confessional statement, they contain clear admissions not only about his own involvement, but also the second accused.

20. Mr. Kupmain also referred to certain documentary evidence showing that, the second accused Peter Ken Yahu had been observed to have spent money lavishly after the robbery.

21. Counsel further submitted that when accused Peter Ken Yahu was investigated and asked questions during the record of interview, he never answered but merely indicated he would answer the charge or charges in court. But yet the accused never said anything in court nor did he call any witness.

22. The prosecution counsel submitted that, since the two accused did not give evidence or call witnesses, the prosecution case against the two of them is unchallenged and therefore the court should return verdicts of guilty to the second and third accused. He cited the case of The State v Garitau [1996] PNGLR 48 to support such proposition.

23. In reply to the prosecution address, Mr. Kaluwin of counsel for the 2nd and 3rd accused raised a number of legal issues. First he said, the evidence by Police Constable Paul Wapinan should not be believed because the questioning of the third accused lasted from 10 am to 12 noon but yet only 4 questions were recorded. On the accused Peter Ken Yahu, counsel submitted that, there is practically no evidence against the said accused.

24. Part of Mr. Kaluwin’s argument is that, the accused Nakikus Konga (Jr.) was questioned for two long hours but there was no formal caution given to him. He further submitted that although the accused came to the police station to clear his name from the books, he was arrested then and the record of interview was conducted after he had made admissions to the allegations of robbery. Counsel referred to some case which I shall refer to them later.

LAW

25. The three accused are charged with an offence of armed robbery aggravated by the use of fire arm contrary to s.386 (1) (2) (a) and (b) of the Criminal Code. The maximum penalty prescribed by Subsection (2) of the above Section is life imprisonment. The court has discretion under s.19 of the Code to impose a term of years rather than imposing the prescribed maximum penalty.

26. As alluded to earlier on, the first accused changed his not guilty plea to a guilty plea and the following discussion only relates to the second and third accused.

27. Before I go on to discuss the relevant law that is or which should be applicable to the current trial, I wish to return to Mr. Kaluwin’s argument that the records of interview conducted with his two clients and the confessional statement obtained from the third accused were not properly obtained. In relation to the second accused, Mr. Kaluwin argued that, the tendered evidence does not in any manner directly or circumstantially implicate his client.

28. He further submitted that the prosecution had basically sought to substantiate its case by showing that accused Peter Ken Yahu had gone on a drinking spree, but that there is also evidence that the accused relative had bought him beer. Obviously, there is no evidence before this court on that part of the counsel’s submission.

29. He therefore submitted on behalf of the second accused that there being no evidence pointing to the second accused’s direct involvement, that accused should not be found guilty. I shall return to this argument a little later.

30. On behalf of the third accused, counsel argued that his client seemed to have been questioned for two long hours, but there was no formal caution given to his client. He further submitted that the record of interview was made after the accused had made admissions to the commission of the offence. He further argued that, if the accused was questioned for two hours, where are the rest of the other questions.

31. This version of the defence argument is flawed as it does not reflect the true and correct status of the conduct of the record of interview. Constable Paul Wapinan gave evidence that he formally cautioned the accused before the confessional statement was obtained as well as the record of interview.

32. The record of interview with the accused Nakikus Konga (Jr.) contains a total number of thirty-four (34) questions and answers. If that attack is against the confessional statement, there were four questions asked to his client but the accused made a lengthy statement could probably explain the reason why the time taken may have been roughly two hours.

33. The court will not accept this part of the defence submission for the very fact that the counsel’s submission was the evidence from the bar table. The confessional statement obtained from the third accused was a long statement. There is no evidence to suggest impropriety on the part of the investigating officer and his corroborator.

34. Counsel cited the case of R v Ginitu Ileandi & Others [1967-1968] PNGLR.496 where the court in that case dealt with the issue of the effect of questioning one accused in the presence of the other and the effect of failure to caution when statement of witness indicates that there was participation in the crime.

35. On the issue of voluntariness and confession Ollerenshaw, J; quoted a passage from another case R v Toronome Tombarbui [1963] PNGLR 55 where the court in that later case said at 500:

"The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or threat. A confession is voluntary in law if, and only if it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion and whether the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise".

36. Then in R v Bulari Gaio [1964] PNGLR 261 it is only a two page judgment by Chief Justice Mann in which case admissibility of a confessional statement arose. In that case the accused was charged with an offence of murder. He was interviewed by a policeman who was being used as an interpreter. The interpreter took no note of the conversation but gave evidence as to the fidelity of his interpretation and not as to the contents of his conversation.

37. The policeman sought to give evidence of what was told to him by the interpreter. The defence objected to this evidence on the basis that it was hearsay and that the proper witness to provide evidence of such nature was the interpreter. The court held that the evidence of the policeman was admissible.

38. Counsel for the second and third accused also referred to the following cases: State v Kiki Hapea [1985] PNGLR 6, The State v Anton Ames Turik & Wichie Jack Paltem [1986] PNGLR 138. In the Constitutional Reference N0.1 of 1977 under s.19 of the Constitution [1977] PNGLR 362, the Supreme Court consisting of five judges gave a number of opinions on the admissibility of evidence obtained contrary to s.42 (2) of the Constitution.

39. First it said, failure to comply with all or any provisions of s.42 (2) does not for that reason alone render admissions by an accused inadmissible as evidence on his trial. Secondly, the court has discretion to reject evidence which is made by admission contrary to the above proviso.

40. Thirdly if the court finds that in a particular case it appears that there has been a breach of s.42 (2) then it is a matter for the trial judge to consider together with all other circumstances of the case when exercising its discretion whether or not to admit evidence obtained following the breach.

41. In Kiki Hapea’s case (supra), a charge involving break enter and stealing from a warehouse. The issue arose in that case was on the admissibility of the record of interview which contained a confessional statement allegedly obtained without a proper caution. The record of interview which had been tendered was ruled inadmissible. It was held in that case that absence of proper caution was a matter to be taken into account in determining whether a confessional statement is voluntary in the sense of being made in the exercise of free will and choice to speak or remain silent.

42. Then in The State v Anton Ames Turik and Wickie Jack Peltam [1986] PNGLR 138, there was an objection to the admissibility of the record of interview on the grounds that such document was unfairly obtained. On discussing the issues of unfairness and the fact that the admissions made in the record of interview were obtained eighteen hours after the alleged voluntary confessions were made, Justice Pratt held that, regard must be had to the Judges Rules of 1912 in the exercise of the judicial discretion to exclude evidence of confessions and admissions on the grounds of unfairness.

43. On the basis of a detailed questioning of the accused, for some eighteen hours, after the accused had made a confession was held to have been obtained contrary to the terms of the Judges Rules. The record of interview and the confessional statement were rejected to.

44. It was good for Mr. Kaluwin to raise these issues. However, the court must say I will totally reject the submissions made by counsel for the two accused. There is no evidence by his clients to show the court that the records of interview and the confessional statement obtained from accused Nakikus Konga (JR.) were obtained unfairly or whether or not the accused was overborne at the time the confessional statement and the record of interview were obtained.

45. The rule in relation to reception of confessional statements and the record of interviews into evidence has been clearly stated in the above cases and many more that, a person in custody should not be questioned without the usual caution being first administered and it is discretionary to either admit or reject such documents if they were found to have been obtained unfairly.

46. A statement can not be accepted into evidence if an accused was overborne in the course of questioning. In that well-known case of McDermott v R (1948) 76 C.L.R. 501 at page 511 Dixon, J; said if an accused speaks because he was overborne, his confessional statement cannot be received into evidence and it does not matter by whatever means he was overborne. If the statement has been obtained as the result of duress, intimidation, persistent importunity, sustained, undue insistent or pressure, it cannot be voluntary.

47. In any event the court cannot accept evidence from the bar table as the second and third accused were given ample opportunities to first give evidence and secondly for them to call any evidence to testify on their trial. It is and was their Constitutional right to remain silent as they chose. The two accused did not challenge their records of interviews and in case of the third accused the confessional statement was not challenged by way of conducting a voir dire trial.

48. If the two accused wanted to challenge the records of interview and the confessional statement, notices would have been issued to the State pursuant to the Criminal Practice Rules of 1987. In the circumstances of this trial, no notices of voir dire were issued to the prosecution about any alleged breaches of the Judges Rules. That being the case, the court accepts the records of interviews conducted with accused Peter Ken Yahu and Nakikus Konga (JR.)

49. I shall now proceed to discuss the status of the evidence and the relevant law. The State’s evidence in relation to the two accused in this trial is partially circumstantial and direct in nature. Direct in the sense that, when the third accused was interviewed, he made admissions to his involvement in this crime both in the record of interview and his confessional statement, (see Exhibits "A" "A1" and "B").

50. In answer to question 17 in the record of interview with accused Nakikus Konga (Jr.), the accused was asked if he could give the names of his accomplices. His answer was that, he would tell the court the names of those involved. The interviewing officers put question 18 to the accused in the following words and note the accused’s answer:

"Q 18: Junior, I now show this Confessional Statement, which you gave to me and I wrote down on paper, which was witnessed by Policeman Josaiah. It is correct that this is the statement that you gave?

Answer: Yes".

52. Accused Nakikus Konga’s confessional statement was also tendered by consent, (see Exhibit "B"). In question 2 of that statement, the accused was asked if he was willing to tell the interrogators anything about the robbery that took place at Talina AGMARK Pacific Ltd on 28 May 2003. The accused answered in paragraphs 4, 5 and 6 in the following words:
    

"While we were there, the armoured vehicle went in and with Peter Ken and Richard Saku, both armed with shotguns, we held up the two Agmark workers, a male and a female.

Peter Ken held up the woman and got the money while Jerry Tano got into the vehicle and started it. We hopped on and took off.

Richard accidentally fired a shot."

52. My view is that, the above pieces of evidence go toward supporting the prosecution evidence that the second and third accused were accomplices on this armed robbery. No evidence has been put up by the defence either by the two accused or their witnesses if they had any.

53. The two accused were given ample opportunities to either give evidence or call any witnesses they wanted to call. But they exercised their Constitutional rights to remain silent under s.37 (10) of the Constitution and to call no witnesses. No adverse inferences will be drawn from the above circumstances on the choices of the two accused to remain silent: The State v Marava Kanaio [1979] PNGLR 319, (see also Paulus Pawa v The State [1981] PNGLR 498 & R v Lupalupa Sisarowe [1967-1968] PNGLR 455).

54. On the issue of the circumstantial nature of the evidence, it is trite law that where the evidence in a criminal trial is wholly circumstantial in nature the court can not convict an accused unless the evidence is ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’. The principles on circumstantial evidence have been stated in many cases. In The State v Tom Morris [1981] PNGLR 493 at page 495 of that judgment, Miles; J quoted a passage from the common law case of Barca v The Queen [1975] HCA 42; (1976) 50 ALJR 108 in the following terms:

"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] HCA 66; (1911), 13 C.L.R. 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), 110 C.L.R.234 at p.252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 C.L.R. 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...".

55. The law is clear, that where there are a number of competing inferences, it is a question of fact for the judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjectures and which party they should favour and at the end of the trial where there are inferences inconsistent with the guilt of the accused, there is discretion to acquit: Paulus Pawa v The State [1981] PNGLR 498, Allan Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131, (see also John Peng v The State [1977] PNGLR 331.

56. The principles of law developed so far from the above cases say that failure by a trial judge to warn himself or herself of the dangers of convicting an accused on circumstantial evidence could be fatal and dangerous.

57. The issue for this court to decide is whether the guilt of the two accused is the only inference that the circumstances of the evidence before me would enable me to draw. If there are any competing inferences in the prosecution evidence or if I entertain any lurking doubts in my mind as to the two accused involvement then the court should not proceed to conviction.

58. However if I am satisfied beyond reasonable doubt about the guilt of the two accused it is necessary not only that their guilt should be a rational inference but that it should be the only rational inference that the circumstances of the evidence before me would enable me to draw: The State v Tom Morris (supra).

59. Applying the tests laid down in the line of case authorities beginning with The State v Tom Morris, Paulus Pawa v The State, Allan Koroka v The State and Mariano Wani Simon v The State (supra) and many more cases after them where does the two accused fall in?

60. From the circumstantial nature of the evidence in the current trial, can one say from the primary findings of facts of the instant case that, the facts and evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the two accused?

61. Or can it be said that their guilt is the two accused is the "only rational inference" that the circumstances of the instant trial would enable me to draw? I answer those questions in the positive.

62. This court is sure beyond all reasonable doubt that, the two accused Peter Ken Yahu and Nakikus Konga (Jr.) participated in the commission of this crime and I must return a verdict of guilty against each of them. I now formally convict the two of you on the charge of aggravated armed robbery contrary to s.386 (1) (2) (a) & (b) of the Criminal Code.

Verdicts of guilty return against the second and third accused.
_________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for 1st Accused
Public Solicitor: Lawyer for 2nd & 3rd Accused