N4012

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 122 & 123 OF 2007

THE STATE

V

BORIA HANAIO, BULA HANAIO & TIMOTHY KOMU

Buka: Cannings J
2007: 18, 19 September, 24 October

VERDICT

CRIMINAL LAW – trial – robbery – the offence of robbery as distinct from the offence of stealing – definition of stealing: Criminal Code, Section 365 – definition of robbery: Criminal Code, Section 384 – offence of robbery: Criminal Code, Section 386(1) – robbery in circumstances of aggravation: Criminal Code, Section 386(2).

Three men were indicted for armed robbery. It was the State's case that, armed with a gun and a bushknife, they confronted a group of workers on the roadside and stole the workers' employer's vehicle. The accused men admitted to demanding the vehicle and unlawfully using it for one day, but denied that they stole it, that they threatened violence against the workers or that they were armed. They pleaded not guilty and a trial was conducted.

Held:

(1)	The offence of robbery, created by Criminal Code, Section 386(1), consists of four elements:

(a) stealing something; and

(b) using or threatening to use actual violence to any person or property; and

(c) in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen; and

(d) at, immediately before or immediately after, the time of stealing it.

(2)	The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:

(a) is armed; or

(b) is in company with at least one other person; or

(c) wounds or uses personal violence.

(3)	To "steal" a thing, a person must:

(a) take it or convert it to their or another person's use; and

(b) do so, fraudulently; and

(c) move it or deal with it by some physical act (Criminal Code, Sections 365(2) and (3)).

(4)	"Fraudulent" taking or conversion happens when the accused person takes or converts the thing:

(a) with intent to permanently deprive the owner of it; or

(b) with any of the other states of mind prescribed by Criminal Code, Section 365(4).

(5)	In the present case, the three co-accused (a) took the vehicle; and (b) did so fraudulently as it was their intention to permanently deprive the owner and the possessor of it and use it as security; and (c) moved it. Therefore they stole it.

(6)	At the time they stole the vehicle, the three co-accused threatened to use actual violence. Therefore they were guilty of robbery under Section 386(1).

(7)	Further, the State proved that they were armed (with a bushknife, but not a gun) and in company of each other. Therefore they were guilty of aggravated robbery under Sections 386(2)(a) and (b).

Cases cited

The following cases are cited in the judgment:

John Kasaipwalova v The State [1977] PNGLR 257
Tom Amaiu v The State [1979] PNGLR 576

Abbreviations

The following abbreviations appear in the judgment:

aka – also known as
CJ – Chief Justice
cm – centimetres
CR – Criminal
DCJ – Deputy Chief Justice
ie – that is
J – Justice
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
reg – registration
v – versus
VHF – very high frequency

TRIAL

This was the trial of three accused charged with armed robbery.

Counsel

L Rangan for the State
P Kaluwin for the accused

24th October, 2007

1. CANNINGS J: Three men from the Lemankoa area of Buka Island are before the court, charged with unlawful use of a motor vehicle and armed robbery. They are Boria Hanaio and Bula Hanaio (who are brothers) and Edward Komu.

2. On 10 April 2006 three workers from the World Vision office in Buka town drove to Mangoana to work on a water and sanitation project in the area. They got there about 10 am, parked their vehicle (a blue Toyota Landcruiser reg No BBL 109) on the roadside near a beach and started work. They were constructing a well and installing a water pump with the help of villagers.

3. About 11 am the three co-accused came to the scene, confronted the World Vision workers, had an angry conversation with them, got the keys to the vehicle and drove off with it. The vehicle was at Boria Hanaio's house that night when the police arrived and it was returned to World Vision the next day.

4. The three co-accused pleaded guilty to unlawfully using the motor vehicle, but not guilty to armed robbery. This is a trial on the armed robbery charge.

5. It is the State's case that when they confronted the World Vision workers, the three co-accused threatened to use physical violence if they were not handed the keys to the vehicle and that they were armed with a factory-made gun and a bushknife. They were acting in a gang, ie in company of each other. Therefore they should be convicted of aggravated robbery.

6. The co-accused admit to asking for the vehicle as they were concerned that World Vision was not devoting enough resources to projects in their villages; and they admit to using it unlawfully for a day. But they deny that they stole it, that they threatened violence against the workers or that they were armed.

7. This is an intriguing case as it requires examination of the elements of the offence of robbery, which entails a close look at the definition of "stealing". The argument for the defence is that the three co-accused had no intention of permanently depriving World Vision of the vehicle. They always intended to return it, so they did not steal it. I will return to the finer points of the legal issues after laying out the evidence that was presented.

EVIDENCE FOR THE STATE

8. Nine exhibits were admitted into evidence and two of the World Vision workers gave oral evidence.

9. Exhibits A + B are statements by police officer Lorraine Billy who was present when Bula Hanaio and Timothy Komu were interviewed. Both denied using actual violence.

10. Exhibit C is a statement by police officer Richard Tiotham who was present when Boria Hanaio was interviewed. Boria denied using actual violence.

11. Exhibits D, E + F are statements by the investigating police officer, Reuben Baloiloi, who interviewed each of the co-accused. He says that they admitted removing the vehicle from the World Vision staff but denied the involvement of any offensive weapon.

12. Exhibit G is Boria Hanaio's record of interview. Boria admitted to removing the keys from the World Vision workers "because they did not provide us any cement for our toilets". He was with Bula, Timothy and one other person, Edward, aka Blacky. Bula and Timothy were drunk. He and Blacky were not. They removed the vehicle "in a polite way". They told the workers they were having some problems so they wanted the vehicle. Boria said he was the leader and he drove the vehicle. He did not know anything about the alleged gun. He took the vehicle to his house and left it "till the police went and took it back".

13. Exhibit H is Bula Hanaio's record of interview. The motive for taking the World Vision vehicle was "there was no service reaching our place". Asked what he meant by that, re replied "Toilets". They removed the vehicle "in a polite way". They told the workers they were having some problems so they wanted the vehicle. Only himself (Bula) and Timothy were drunk. They had been drinking home brew.

14. Exhibit I is Timothy Komu's record of interview. Timothy admitted to "stealing" the World Vision vehicle. "We were not happy with World Vision when they did not provide the materials needed for our toilets". He admitted to being really drunk. He denied issuing any threats with a gun or bushknife. They removed the vehicle "in a polite way".

15. The first State witness, Stanley Limen, was the driver of the World Vision vehicle. He was in charge of the workers that went to Mangoana. In examination-in-chief he said that while they were installing water pumps the three co-accused came up to them, armed with a gun and a bushknife and started accusing World Vision of using up all the ex-combatants' money from the Bougainville Crisis. Boria was holding a factory-made gun, about 60 cm long and threatened to shoot him and he found it hard to get a word in. Boria was holding the gun in a downward pointing motion. He (Stanley) was afraid for his life so he gave Boria the keys and he drove off. Bula and Timothy (who had the bushknife) got into the vehicle, then they were joined by two others, who had been in the bush.

16. He and his workmates then walked to Lemanmanu health centre to use the VHF radio to call their base and notify them of their problems. They were not there long when the three co-accused arrived and used threatening words against them. Timothy smashed a bottle of home brew against a tyre rim on the vehicle. They demanded that World Vision give them their money, then they would return the vehicle. Then they left them there and drove off with the wheels screeching.

17. In cross-examination Stanley was asked many questions about the gun that he said Boria was using to threaten him. Stanley said he saw Boria's finger on the trigger but then said that the gun was beneath a lap-lap. Then it was inside a mountain bag and he only saw the barrel sticking out. Stanley was asked about the motive for the hold-up? Weren't the co-accused unhappy about World Vision not supplying project materials? No, Stanley replied, they were complaining that World Vision had taken the ex-combatants' money.

18. In re-examination Stanley said that Boria had a long, mountain bag and was saying that he had a gun.

19. The second State witness was Bernard Han. In examination-in-chief he said that he was working with Stanley and their workmate Aloysius, when they were approached by the co-accused. One was particularly aggressive and said 'I want the keys to the vehicle right now. If you don't give me the keys you will die'. Bula had a bag with something in it. It seemed as if it had a gun inside. But he, Bernard, did not see a gun. Timothy had a bushknife but did not say anything. He was just standing there with the bushknife. Stanley did not immediately hand over the keys but then they told him to start thinking about his life so he handed over the keys. They got into the vehicle and drove off.

20. Afterwards he and Stanley and Aloysius walked to Lemanmanu health centre to contact their base. The co-accused drove in and started getting cross again.

21. In cross-examination the defence counsel showed Bernard a statement he gave to the police on 20 July 2006, three months after the incident. In that statement he said that he saw one of the co-accused holding his finger on the trigger of the gun. Bernard admitted that he did not actually see a gun and that he was changing his story. But he maintained that the co-accused were not talking to the workers about World Vision projects in their area. They were talking about the ex-combatants' money.

EVIDENCE FOR THE DEFENCE

22. One exhibit was tendered into evidence. One of the co-accused, Boria Hanaio, gave sworn evidence and another of them, Timothy Komu, gave an unsworn statement from the dock.

23. The exhibit was State witness Bernard Han's statement to the police, which was tendered through him during cross-examination as a prior inconsistent statement.

24. The first co-accused, Boria Hanaio, said in examination-in-chief that on the morning of the incident he was at his mother's place at Lemankoa, with Bula, Timothy and Edward. They were building a house for Edward. Bula and Timothy had been drinking. But he, Boria, had not been. When they approached the World Vision workers he was carrying a hammer and nails in a small bag. They confronted Stanley as there had been a complaint in their community about not receiving proper services, toilets and water pumps, from World Vision. He got the keys from Stanley and drove the vehicle away. He denied threatening Stanley. He just pulled the keys away from him. None of them had a bushknife.

25. In cross-examination Boria said that when they were building Edward's house they were talking about World Vision consuming all the money intended for the ex-combatants and the poor services being provided by World Vision. He got the vehicle by force – by pulling the keys off Stanley – but he did not threaten him. They were unarmed.

26. In re-examination Boria said that yes, they were angry about both the ex-combatants' money and the toilets and pumps that World Vision was not providing.

27. In his unsworn statement from the dock the third co-accused, Timothy Komu, said that he did not hold a bushknife.

THE OFFENCE OF ROBBERY 

28. Each of the co-accused is charged with aggravated robbery under Sections 386(1) and 386(2)(a) and (b) of the Criminal Code.

Section 386

29. Section 386 (the offence of robbery) of the Criminal Code states:

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

What is "robbery"?

30. There is a definition in Section 384 (definition of robbery), which states:

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

31. The offence of robbery thus consists of four elements: 

•	stealing some thing; and

•	using or threatening to use actual violence to any person or property; and

•	in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen; and

•	at, immediately before or immediately after, the time of stealing it.

What is "stealing"?

32. There is a definition in Section 365 (definition of stealing), the important bits of which state:

(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.

33. To "steal" a thing, a person must therefore:

(a) take it or convert it to their or another person's use; and

(b) do so, fraudulently; and

(c) move it or deal with it by some physical act (Criminal Code, Sections 365(2) and (3)).

(See generally John Kasaipwalova v The State [1977] PNGLR 257, Supreme Court, Frost CJ, Williams J, Kearney J and Tom Amaiu v The State [1979] PNGLR 576, Supreme Court, Prentice CJ, Raine DCJ, Andrew J.)

"Fraudulent" taking or conversion is described by Section 365(4), which states:

A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent—

(a) to permanently deprive the owner of the thing of it; or

(b) to permanently deprive any person who has any special property in the thing of that property; or

(c) to use the thing as a pledge or security; or

(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or

(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or

(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.

34. Thus a fraudulent taking or conversion happens when the accused person takes or converts the thing:

(a) with intent to permanently deprive the owner of it; or

(b) with any of the other states of mind prescribed by Criminal Code, Section 365(4).

Aggravated robbery

35. The offence of robbery under Section 386(1) has a maximum penalty of 14 years imprisonment. The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber: 

(a) is armed; or

(b) is in company with at least one other person; or

(c) wounds or uses personal violence.

The present case

36. It is not suggested that the co-accused used actual violence against any person or the vehicle that they took. Therefore to obtain a conviction for robbery under Section 386(1), the State must prove that:

•	they stole the vehicle; and

•	they threatened to use actual violence against the World Vision workers; and

•	they made their threat in order to obtain the vehicle; and

•	the threat was made immediately before stealing it.

37. The last two elements will in this case flow on from the first two. It is the first two elements that are crucial. Did they steal the vehicle? Did they threaten violence? If both are answered yes, the other two will be answered the same. If one or both of the first two are answered no, they will be acquitted. 

38. As to obtaining a conviction for aggravated robbery under Section 386(2), it is not suggested that anyone was wounded (the circumstance of aggravation provided by Section 386(2)(c)). The State is relying on Sections 386(2)(a) and (b); and only one of them has to be proven. That is, the State must prove that, in addition to the above four elements of robbery:

(a)	the co-accused were armed with a dangerous or offensive weapon or instrument; or

(b)	were in the company of each other.

39. The second one is a formality. The co-accused do not deny that they were in each other's company. So, if they are convicted of robbery under Section 386(1), a conviction for aggravated robbery will follow under Section 386(2)(b). But were they armed? It is still important to answer this question as it will be relevant to the sentence. Armed robbery is a more serious form of aggravated robbery than un-armed aggravated robbery.

40. If the State can prove the four elements of robbery but cannot prove either of the circumstances of aggravation in Section 386(2) that are charged in the indictment, a conviction for robbery can be entered under Section 386(1). This is made clear by Section 538 (offences involving circumstances of aggravation) of the Criminal Code, which states:

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—

(a) established by the evidence; and

(b) constituted by any act or omission that is an element of the offence charged,

with or without any of the circumstances of aggravation charged in the indictment.

THE ISSUES IN DETAIL

41. Given the elements that are contentious, the key issues are:

1	Did they steal the vehicle? If yes, the first element of the offence of robbery will be proven. If not, they will not be guilty of robbery.

2	Did they threaten to use actual violence against the World Vision workers? If yes to both this question and question 1, they will be guilty of robbery. If not, they will be acquitted.

3	Were they armed with a gun and/or bushknife? If yes to questions 1 and 2 and this question, they will be guilty of aggravated robbery under both Sections 386(2)(a) and (b). If yes to questions 1 and 2 but no to question 3, they will be guilty of aggravated robbery under Section 386(2) (b) only. 

42. In determining the answers, I must apply the criminal standard of proof – beyond reasonable doubt.

1 DID THEY STEAL THE VEHICLE?

43. Recall that the issues here are, did they:

(a) take it or convert it to their or another person's use?; and

(b) do so, fraudulently?; and

(c) move it or deal with it by some physical act?

44. There is no doubt that (a) they took it and (c) they moved it. The evidence is that it was driven for 63 kilometres before it was returned. But did they (b) take it "fraudulently"?

45. I am fairly sure that if I were to tell an ordinary person in the street about the facts of this case and ask them if the vehicle was stolen they would say yes. The dictionary definition of stealing is 'to take dishonestly or wrongfully, especially secretly' or 'to commit theft' (Macquarie Dictionary © 2001). The co-accused took the vehicle wrongfully. They have already admitted unlawfully using it. So, it looks as if they stole it. The problem is, the ordinary, natural meaning of the word does not neatly accord with the statutory definition, which requires proof that the thing is taken fraudulently. The deeming provision in Section 365(4) of the Criminal Code seems intended to provide an exhaustive list of how a person can fraudulently take a thing.

46. So in this case the State has to prove beyond reasonable doubt that the co-accused (the alleged thieves) took the vehicle with intent to deal with it in one of the following six ways:

(a) to permanently deprive the owner (World Vision ) of the vehicle; or

(b) to permanently deprive any person (Stanley Limen) who has any special property in the vehicle (Stanley's right of possession) of that property; or

(c) to use the vehicle as a pledge or security; or

(d) to part with it on a condition as to its return that the persons taking it (the co-accused) may be unable to perform; or

(e) to deal with the vehicle in such a manner that it cannot be returned in the condition in which it was at the time it was taken; or

(f) in the case of money, to use it at the will of the person who takes it. 

47. Scenarios (d), (e) and (f) are clearly inapplicable. As to (a) and (b), there is an argument to say that the co-accused were only taking the vehicle temporarily. They were just venting their frustration (over ex-combatants' money or poor service by World Vision) and did not intend to keep the vehicle. However, to take something permanently all that is required is an intention to take it and retain it indefinitely. Permanent means 'intended to last indefinitely'; and 'indefinitely' means 'not definite, without fixed or specified time limit' (Macquarie Dictionary © 2001).

48. The evidence shows that the co-accused took the vehicle without giving any indication when or if it would be returned. They took it for an indefinite period. Their intention was therefore to permanently deprive the owner, World Vision, of its vehicle; and to permanently deprive the person in lawful possession of it, Stanley Limen, of his property (his right of possession) in the vehicle.

49. As to (c), the evidence shows that the co-accused took the vehicle with the intention of using it as a bargaining chip to get want they wanted (whether it was ex-combatants' money or better World Vision services, it does not matter). They can therefore be regarded as intending to use the vehicle as a security for their demands.

50. All of (a), (b) and (c) are satisfied. Only one of them had to be. I conclude that the State has proven beyond reasonable doubt that each of the co-accused fraudulently took the vehicle and moved it. Therefore they stole it.

2 DID THEY THREATEN TO USE ACTUAL VIOLENCE?

51. The evidence is conflicting. Stanley and Bernard's evidence was emphatic. The co-accused were aggressive and threatening them, particularly Stanley. On the other hand, Boria said that no threats were issued. They just demanded the vehicle and got the keys off Stanley. In their police interviews, each of the co-accused said that they asked for the vehicle politely.

52. I find the evidence about politely asking for the vehicle and seizing the keys quite unbelievable. The evidence is clear that the co-accused were angry and at least two of them were drunk. They were aggrieved about something.

53. Though the manner in which Stanley gave his evidence gives rise to doubt about its reliability, it is easy to accept his evidence that he felt threatened, he was scared and felt he had no choice but to give up the keys to the vehicle. Bernard Han was a more reliable witness and he gained credibility by conceding that he did not actually see a gun and that he was giving a different story to that in his police statement. Bernard said that threats were issued and he advised Stanley to do as he was told.

54. There is ample evidence that Timothy had a bushknife. His statement from the dock, denying that he had a bushknife, was unconvincing. The statement was extremely brief and the manner in which it was uttered gave the impression that it was a short, sharp lie. Though there is a shortage of evidence about what Timothy was doing with the bushknife, the fact that he was holding it, while drunk, and that Boria – the one who was doing the talking – was aggressive and threatening, leads to the conclusion that the co-accused were threatening to use actual violence.

55. The threats were made in order to obtain the vehicle and were made immediately before the vehicle was stolen.

56. That means that each of the co-accused is guilty, at least, of robbery under Section 386(1).

3 WERE THEY ARMED?

57. Stanley Limen's evidence about the co-accused having a firearm was inconsistent. The reliability of this part of his evidence was torn apart during cross-examination. He changed his story at least three times. It is clear that he was scared, badly shaken, by the incident. He was threatened and he probably genuinely believed that Boria had a gun. He gave the impression that his evidence was being given to explain why he had been so frightened that he gave away the vehicle. Bernard Han's evidence was much more believable. He thought that Boria might have had a gun but could not be sure.

58. The State has fallen short of proving that the co-accused had a firearm of any description.

59. As to the bushknife, however, the evidence is, as I commented earlier, quite strong. Timothy had the bushknife, which is a dangerous and offensive weapon. There is a shortage of evidence as to how he held it. There is no evidence that he brandished it or brought it close to the skin of any of the World Vision workers. But the fact that he held it and that he was drunk is sufficient for me to conclude that the co-accused were, at the time of the robbery, armed.

4 HAS THE STATE PROVEN ITS CASE BEYOND REASONABLE DOUBT?

60. Yes. The State has proven that each of the co-accused committed robbery in circumstances of aggravation. 

VERDICT

61. Boria Hanaio, Bula Hanaio and Timothy Komu are each found guilty of aggravated robbery under Sections 386(1), (2)(a) and (2)(b) of the Criminal Code. 

Verdict accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused