N3674

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 817 OF 2007

BETWEEN

THE STATE

AND

JAMES ORELA PEPENA

Mendi: Yalo, AJ

2009: 12, 15 and 22 May

CRIMINAL LAW – Criminal Code Sections 386(1) and (2) armed robbery; Section 383(2) unlawful use of a motor vehicle – Accused pleaded not guilty – State failed to corroborate evidence – State not proven charges beyond a reasonable doubt. 

CRIMINAL PROCEDURE – accused beaten by police at the time of arrest – accused beaten to induce him to sign his record of interview. Court cannot accept evidence in record of interview brought in breach of the fundamental rights guaranteed by the Constitution –Unjust to accept police behavior prohibited by Constitution.

CONSTITUTIONAL LAW – Fundamental Rights – Fundamental Rights underscores every other right guaranteed by the Constitution – Section 36 Freedom from inhuman treatment, Section 37 Protection of the law – An accused person is entitled to full protection of the law - 

Cases cited

Nil

Counsel

Mr P Kaluwin, for the State 
Ms T Ohuma, for the Accused

22 May, 2009

VERDICT

1	YALO AJ:	The accused, James Orela Pepena, has been charged with one count of robbery under Section 386(1) and (2) and with one count of unlawful use of a motor vehicle under Section 383(2) of the Criminal Code Act Ch 262 (Criminal Code). He pleaded not guilty to both charges.

2	The State alleged that at about 3:00pm on 28 October 2003 Mr Pepena in the company of other men were at Kumbame along the Okuk Highway. When a motor vehicle, namely Mazda Dyna Truck belonging to South Super Wholesale Trading arrived, the accused and his men who had set up a road block with actual violence forced the driver out of the truck. The accused and his men were armed with dangerous weapons such as guns and bush knives. The accused and his men ordered the passengers out of the truck and the accused drove away the truck with goods on it. In respect of the first count the State said that the accused unlawfully obtained the truck with goods loaded on it. In relation to the second count the State stated that the accused unlawfully drove away the truck. 

ISSUE

Did the accused steal with actual violence the truck with the goods in it?

Did the accused unlawfully drive away the motor vehicle?

STATE’S EVIDENCE

3	The State’s first witness was Police Investigator First Constable Vincent Undah. He is based at Ialibu Police Station and has 20 years experience as a policeman and 12 of those as a Detective. He gave evidence that Mr Pepena was apprehended on 28 October 2003. It has taken six years to bring this matter to trial partly because the accused and 13 other remandees escaped from custody at the Mendi Police Station. Mr Pepena was on the run until he was apprehended in 2008. 

4	On 28 October 2003 Mr Undah and a team of policemen were returning to Ialibu from Mendi. At Kirane Village the villagers stopped the team and informed them that there had been a highway robbery a kilometer ahead. When they arrived at the scene the local villagers were rushing around to collect store cargo that were scattered everywhere. The police were informed by the villagers that the truck had been driven away in the Ialibu and Kagua direction. The police team drove to Ponowi heading toward Ialibu Station. At Ponowi Village they saw many villagers on the road. They stopped the police team and told them that they had apprehended and were holding onto a person who was driving a stolen vehicle. Mr Undah identified Mr Pepena as the person held by the villagers. According to Mr Undah Mr Pepena appeared assaulted by the villagers because he was bleeding and he was topless. 

5	When the villagers let go off the accused into the hands of the police the accused ran away. Mr Undah sat in the car whilst three of his colleagues chased the accused. They caught Mr Pepena about 30 minutes later and brought him to Ialibu Police Station and he was arrested. 

6	Mr Undah gave evidence that he took a confessional statement from Mr Pepena. He cautioned the accused and recorded the caution in the statement. The accused understood the caution and he made his confession in Pidgin language. Mr Pepena confessed that he had been informed of the robbery by two men, one from Wabi and the other from Uma in Kagua District. The accused did not give full names of the two men. The two men assisted Mr Pepena with K20.00 bus fare from Kagua to Kumbame in Ialibu. 

7	When Mr Pepena arrived at Kumbame he met seven other men. He refused to take part but he had been promised a payment so he participated in the robbery. Mr Pepena refused to sign the handwritten confessional statement so Mr Undah copy typed it the same day. Mr Pepena refused to sign it so he arranged for an ink stamp pad and had the accused place his finger on the ink pad and placed that finger on the statement as a mark. Mr Undah read to the accused the English version of the statement and when the accused agreed to the contents of the statement he had the accused place his thumb print on the statement. The witness denied being in possession of a gun when Mr Pepena made a confessional statement and he further denied threatening the accused to make the statement. He denied making up the statement himself and forcing the accused to sign it. He gave evidence that it is usual procedure that only the accused signs the confessional statement. Mr Undah refuted the suggestion that another officer was present during the time the confessional statement was taken and when the accused refused to sign it the accused was hit on the head with a gun butt. The State tendered into evidence the confessional statement. The Pidgin language version was marked as State’s exhibit "A" and the English version was marked as State’s exhibit "B".

8	Mr Undah’s evidence was that the accused was very badly beaten up on 28 October 2003 when he was apprehended by the villagers from Ponowi. Mr Pepena was unable to talk. Mr Undah admitted that police did beat up the accused at the time he was arrested at Ponowi Village. 

9	The witness stated that he did not recover the alleged stolen truck until later. The truck belonged to a businessman named Francis based in Mendi. The company is called South Trading which is a part of the South Super Wholesale Trading.

10	The witness further gave evidence that he conducted a record of interview with Mr Pepena on 8 December 2003 at Buiebi Jail. His corroborator was Mr Aluta Koya - a colleague. He informed the accused the purpose of the interview and informed him of his constitutional rights. The interview was conducted in Pidgin. When asked to sign the record of interview the accused refused to sign it saying that he will only sign a typed version. So Mr Undah copy typed the statement in English back at Ialibu Police Station. He then took the record of interview to Buiebi Jail and read to Mr Pepena on his request the English version. After he agreed with the substance and contents the accused placed his thumb mark on the document. Mr Undah recorded this fact under question number 41 in the record of interview. Mr Undah traveled to Buiebi with a police colleague but that officer did not join him into the Correction Service Guard House where he went in to meet the accused and have him sign the record of interview. Mr Undah stated that he did not go into the guard house with a gun and he did not threaten or assault the accused to force him to sign the record of interview. The witness identified his signature and that of his corroborator and Mr Pepena’s thumb mark. His corroborator signed his signature on the record of interview at Ialibu Police Station before they came to see the accused. The State tendered into evidence the English version of the record of interview and it was marked as State’s Exhibit "C". 

11	Mr Undah said that he did obtain statements from others namely Karai, Raymond Poya and Nelson Piane but they could not be brought to court because he does not know where they are. He does not know if the company who owned the truck exists because he did not contact the company. His colleagues who chased and apprehended the accused at Ponowi could not be brought to court for one reason or another. 

12	When put to him during cross examination that Mr Pepena is able to sign his signature, Mr Undah said that is not true. He could not sign so that is why he provided an ink pad for Mr Pepena to place a thumb mark on the statement. The witness further denied that he made up the questions and answers in the record of interview and that he forced the accused to sign it. He further denied that his colleague hit the accused with a gun butt at Buiebi when he refused to sign the record of interview. Mr Undah denied that his colleague injured the accused at Buiebi. 

13	Mr Undah admitted converting some of the statements in the confessional statement into questions in the record of interview. Those include questions and answers number 21 – 23 and 24 – 35. When the Defence Counsel put to Mr Undah that he had already drawn his own conclusions and that it was unfair for him to do so he replied it was fair. 

DEFENCE EVIDENCE

14	Mr Pepena gave evidence that he had walked from his village in Kagua and he was headed for Ialibu. He had walked to Ialibu to visit his second wife who lives at Kendal Village in Ialibu. He went to find out why his wife had not sent their children to school. When he arrived at Kumbame and Ponowi road junction he waited for a Passenger Motor Vehicle to get a lift to Ialibu. There were many people present, it was a market area. Then a police vehicle arrived and the officers asked the public if they had seen any strange person. The public then pointed at him. The police apprehended him and beat him. He had two lose teeth, had a swollen face and was so hurt. He was taken to Ialibu Police Station that day and was held in custody. He could not talk or eat. Three days later Mr Pepena was taken to Buiebi Jail. Some days later Mr Undah brought a paper for him to sign. He asked Mr Undah to read the statement to him. Mr Pepena did not agree with the contents so he refused to sign it. That is when Mr Undah assaulted him with his gun. Mr Undah held Mr Pepena’s left hand down on the floor with his boot and grabbed the right thumb and placed it on the record of interview. Mr Pepena said he did not sign the document at his free will. When he was hit on the head with a gun he was bleeding and blood covered his eyes. He could not see. Whilst he was in great pain Mr Undah forcefully grabbed his thumb and placed it on the document. The accused gave evidence that Mr Undah injured him on his left middle finger. 

16	Mr Lomblol Poli appeared from prison to give evidence in support of the accused. He gave evidence that he did see the injury on Mr Pepena’s head on the day the accused was hurt. The accused was a remandee so the warders did not take him to get medication so he felt for the accused and brought some medicine and he cleaned Mr Pepena’s wound and dressed it. He further gave evidence that he himself is a habitual escapee. 

THE RELEVANT LAW

17	The accused is charged under the following provisions of the Criminal Code. As to the count of unlawful use of a motor vehicle Section 383 states:

383. UNLAWFULLY USING MOTOR VEHICLES, ETC.

(1) In this section, "unlawfully uses" includes the unlawful possession by any person of any motor vehicle or aircraft–

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use.

18	As to the charge of one count of armed robbery Sections 384 and 386 read as follows: 

384. DEFINITION OF ROBBERY.

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.

386. THE OFFENCE OF ROBBERY.

(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.

19	As for the count relating to unlawful use of a motor vehicle the accused is charged under Section 383(2) of the Criminal Code. The maximum penalty for this offence is imprisonment for up to five years. As for the count of armed robbery the penalty is, subject to Section 19 of the Criminal Code which provides for alternative penalties, much higher. For a person found guilty of armed robbery under Section 386(1) of the Criminal Code he can be sentenced to a maximum of 14 years. But if his act of armed robbery involves use of dangerous weapons or instruments such as guns or bush knives, or the accused was in the company of other persons at the time of the robbery, or wounds any person at, immediately before and immediately after the robbery wounds any person he is liable to, subject to Section 19 of the Criminal Code, imprisonment for life. 

FINDINGS

20	There is no evidence that Mr Pepena was seen and identified by anyone at the scene where the alleged robbery occurred near Kirane along the Okuk Highway. I accept that the accused was apprehended by villagers at Ponowi Village. The villagers had beaten up the accused before the police arrived. The Ponowi Villagers stopped and informed First Constable Undah’s team that they had apprehended the accused. The villagers handed the accused over to the police but the accused immediately ran away. He was caught by the police about 30 minutes later. The police beat up and assaulted the accused. Mr Undah admitted that the accused was bleeding when his colleagues captured him and brought him to the car. I accept Mr Pepena’s evidence that he could not move or talk for about two days after he was apprehended and detained. He was in great pain with swollen face. 

21	I accept the State’s evidence that the accused made a confessional statement. The accused said he did not make the confessional statement whilst the State’s evidence is that he did so voluntarily. Whose evidence shall I accept? I believe the State’s evidence because Mr Undah could not have the benefit of the specific details contained in the Statement. I believe those details are peculiar knowledge only available to Mr Pepena. But considering the findings I have set out above is it fair and just for me to accept the confessional statement? I am inclined to say that under the circumstance justice requires that I must reject the confessional statement and the evidence therein and this is my reason for doing so. The accused was not in a free state of mind and his judgment was diminished. He was beaten by the villagers at Ponowi. It was a mob attack. He had just faced a potentially life-threatening experience. He was in a state of shock when the police arrived. When he was captured and beaten by police he faced another round of physical and emotional pain. From the day of his arrest and for the next two days he was in a great physical pain and he was an emotional wreck. He was in a state of shock and he was traumatized. Any person in that situation would feel that he had lost his dignity and self worth as a human being and he would not be in the right frame of mind and judgment to make that confessional statement. The police contributed to Mr Pepena’s physical and emotional condition. 

22	I must acquit the accused for the foregoing reason alone and I do not have to discuss other evidence. Assuming I am wrong in my conclusion above I will still reach the same conclusion for two reasons. First, I accept Mr Pepena’s evidence that he was beaten at Buiebi Jail on the day Mr Undah came to have him sign the record of interview. Mr Pepena said he was hit on the head with a gun and he was bleeding heavily. The scar on his head was obvious to the Court. A prisoner, Mr Lomblol Poli gave evidence in support of the accused that he saw Mr Pepena with a cut in his head that day. Mr Poli did not see who hit the accused but the accused told him that the police had hit him when he went to get his file at the jail guard house. This witness has nothing to gain to give evidence in support of the accused and he has no reason to lie to this Court. I do not believe that the fact that the witness is a habitual escapee does not affect the credibility of his evidence although clearly his own credibility is obvious. Even if the accused cooperated in the record of interview but refused to sign a record of interview he may have had lawful reasons to do so. In such event the law does not give overriding powers to the police to obtain the accused person’s signature by duress or threat or otherwise. The Court cannot accept evidence in a record of interview that is brought before it in serious breach of the fundamental rights guaranteed by the Constitution. To do otherwise would mean that this Court is acquiescing to or approving such unjust police conduct prohibited by the Constitution.

23	Secondly, even if I am wrong in rejecting the confessional statement and the record of interview the State has failed to prove its case beyond a reasonable doubt. The State has failed to call any corroborating evidence in light of the accused casting serious doubt on its evidence. It is trite law in criminal law that where there is doubt in the State’s evidence the scale must weigh in favour of the accused. In this case the State has failed to discharge the criminal standard of proof. 

24	The confessional statement and the record of interview formed the platform on which the State’s case stood. Since I have removed that platform the State’s case has no footing. It must fall.

25	There is a final finding. The accused was apprehended by the police on 28 October 2003. Up till 8 December 2003 when the record of interview was conducted the accused had not been charged. In question No 4 of Mr Undah’s record of interview of the accused he informs the accused of the latter’s Constitutional rights and further advises the accused that he is not charged yet. It appears to me that he was kept in custody from 28 October to 8 December 2003 and even beyond that date without a charge. Mr Pepena said in his evidence that Mr Undah placed a hand on his hand at Ialibu Police Station and told him that he was charged. I do not believe Mr Pepena. In his state of pain and shock he knew not what was happening nor can he now recall accurately. 

26	Mr Undah and his team breached Section 36(1) of the Constitution by subjecting the accused to torture. Section 36(1) states:

36. FREEDOM FROM INHUMAN TREATMENT.

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

27	By keeping the accused in custody for more than a month without charging him is a breach of Section 37(1) and (17) of the Constitution. This provision reads:

37. PROTECTION OF THE LAW.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

28	There is unequivocal evidence that the police breached these Constitutional Law provisions that protect and provide for the fundamental rights expressed in mandatory terms. Fundamental rights guaranteed and provided for under our Constitution are so called because they are the very basic of and underscores every other right guaranteed in the Constitution. The fundamental rights go to the core of the value, dignity and respect for the human life. These provisions and indeed every other provision in our Constitution are not mere dull black ink on white paper. They have spirit and purpose and their applications are relevant and timeless. The Constitution and its values are the hallmarks of our democracy. Those of us whose nature of our official duties involve making decisions or taking actions or the omissions thereof that may affect the fundamental rights of another fellow human being must always be conscious of these Constitutional provisions and values. There is a clear serious breach of Mr Pepena’s constitutional rights. If I were wrong in all that I have found so far previously to acquit the accused I would still acquit him of the charges and discharge him from custody for the immediate foregoing reasons. But if I am correct in every finding I have made, with respect it is a shame. I say this not to shame and humiliate the police or the State’s Counsel for I fully appreciate that they each can only do so much within their respective resource limitations. In the end justice must take its course. 

29	For the avoidance of doubt, I must make this final comment. Although I and the accused are from the same district or electorate, I have returned this verdict purely on the merits of this case as I have set out. Mr Pepena is from Kagua sub district and I am from Erave sub district. I am not related to the accused in any manner whatsoever. 
 
VERDICT

30	I find the accused, Mr James Orela Pepena, not guilty of one count of armed robbery and I further find Mr Pepena not guilty of one count of unlawful use of a motor vehicle brought against him by the State pursuant to Sections 386(1) and (2) and 383(2) of the Criminal Code respectively. I acquit the accused, Mr James Orela Pepena, of one count of armed robbery and I further acquit the accused James Orela Pepena of one count of unlawful use of a motor vehicle brought against him by the State pursuant to Sections 386(1) and (2) and 383(2) of the Criminal Code respectively. Mr Pepena shall be discharged from custody forthwith once the Correction Service at Buiebi is served the formal notice of acquittal and discharge from this Court which shall be issued by close of business before or by today. 

31	Orders accordingly.

__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner