State v Kapul [2017] PGNC 343; N7017 (17 November 2017)

N7017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1305 OF 2015

THE STATE

V

STANLEY MAIU KAPUL

Kimbe: Miviri AJ
2017 : 15^th & 16^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – identification-section 7 and 8- recognition of neighbour-good lighting- admission accused record of interview corroborative -active participation knife wielding swinging at victim-guilty robbery-aiding abetting-Unlawful use of motor vehicle-guilty.

Facts

The Accused was part of a group who aided others armed with homemade guns and bush knives and held up a PMV bus and shot the driver when he resisted their attempt to rob him and then drove off and away with it.

Held

Identification beyond doubt
Guilty of robbery and Unlawful use of motor vehicle.
Bail refunded forthwith
Remanded in custody.

Cases:

John Beng v The State [1977] PNGLR 115
John Jaminan v The State [1983] PNGLR 122
The State v Amoko Amoko [1981] PNGLR 373
Wani v The State [1979] PNGLR 593

Counsel:

D. Kuvi, for the State
D. Kari, for the Defendant

VERDICT

17^th November, 2017

1. MIVIRI AJ: Stanley Maiu Kapul was jointly indicted with Leonard Bongi Poi and Elizah Vincent Hethet that they on the 24^th July 2014 at Gigo in Kimbe stole from one Willie Tavup with threats of actual violence a dark blue 15 seater PMV bus registered number POOO26B. And at this time they were armed with home made guns and bush knives, all dangerous weapons contrary to section 386 of the Criminal Code Act.
   
2. A second count was that they were charged with the unlawful use of that vehicle pursuant to section 383 of the Criminal Code. And the state pleaded that they aided and abetted each other in both offences contrary to section 7 of the Code.
   
3. Both Leonard Bongi Poi and Elizah Vincent Hethet had no case to answer as the identification was not there and a not guilty verdict was returned on each of them. This is the trial of Stanley Maiu Kapul now completed and the verdict of the court.
   

Facts

4. It was alleged that the accused were drinking alcohol at Gigo and ran out so went down the road where Willie Tavup had pulled up in his 15 seater PMV bus to pick up a person who had called to be picked up there. As he waited for that person the accused in company confronted him holding him up and instructing him to hand over money and valuables. He refused and a fight ensured in the course of which he was shot by the accused in the stomach and they got his bus and made off with it. He sustained serious gunshots wounds to his abdominal area for which he was treated here at Kimbe and also in Port Moresby. He has since recovered.
   

State evidence

5. The state evidence comprised the tendered evidence of Willie Tavup Exhibit S1B, Alice Akua wife of Willie Tavup exhibit S2B, Exhibit S3A affidavit of Doctor Peter Yama, Exhibit S3B medical report Willie Tavup, Exhibit S3C referral letter Kimbe Surgical ward of Willie Tavup, Exhibit SD referral of Patient Willie Tavup by Doctor S James Port Moresby General Hospital, Exhibit S4A the pidgin record of interview of Leonard Bongi Poi dated the 29^th July 2014, Exhibit S4B the translated English version of the record of interview of accused Leonard Bongi Poi, Exhibit S5A the pidgin original record of interview of the accused Stanley Maiu Kapul, Exhibit S5B, the English translation of that record of interview, Exhibit S6A the pidgin original record of interview of the accused Elizah Vincent Hethet, Exhibit S6B English translation of this record of interview, Exhibit S7 the statement of the police investigation officer Martin Vitolo, Exhibit S 8 the statement of Corroborating officer Sahara Tokania, Exhibit S9 Vernon Naurikia, and exhibit S10 statement of Philip Kuri.
   
6. This evidence established beyond all reasonable doubt that there was an armed robbery committed upon Willie Tavup on the 24^th July 2014 at Gigo Settlement in Kimbe by men who were armed with homemade guns and knives all dangerous weapons as he stopped on the side of the road there in answer to a call for pickup on his PMV bus registered number P00026B by a person on the side. It was further established by that evidence that he was injured in the robbery when he was shot by one of the robbers as he tried to fight them off and sustained injuries to his abdominal area, left renal plank entry wound of 10cm by 10cm dirty with no exit, a 20cm cavity created by the pellets extending posterior and superficial to the back extending to the spinal bone, for which he was admitted to the Kimbe general hospital on that day the 24^th July 2014, only two pellets were removed the rest 91 remained in his body yet to be removed. His total cost of damage awarded was 150 percent, and referred to the Port Moresby General Hospital for further treatment in respect of the still lodged 91 pellets.
   
7. Interestingly enough the record of interview of the accused tendered by consent marked Exhibit S5A pidgin original and S5B English translation contain very detailed admissions made by the accused dated the 11^th September 2014. In there he admits that he surrendered to police. That he was with Penny, Elizah, Baps, Toro, and Poi drinking and then went down to get more beer when they were involved in the robbery which happened on D-Street. That they all had been drinking together at Laleki which is the place where he is resident. And there he saw in the possession of Toro and Penny guns who were he acknowledges his friends. And whom he admits held up the bus together with one Baps. He says he ran away when the gun was fired.
   
8. What is contained in his record of interview is accomplice evidence and cannot be used against another accomplice without corroboration. His shifting of the blame to the other co accused cannot be taken at face value without corroboration some independent evidence verifying that fact The State v Amoko Amoko [1981] PNGLR 373. There is no corroboration that he had disassociated himself from the robbery and unlawful use of the motor vehicle. If not he corroborates the account given by the State witnesses both in placing himself at the scene of the crime. He is there all alone but differs with the witnesses in that he ran away when the gun was fired.
   
9. But what makes his evidence incredible is that the description he gives goes hand in hand with what the witnesses described and of the sighting of himself and two others Toro and Penny not before the court. Common sense dictates too that persons together at the same place seeing an event unfold before them would see the same material things. That is the case of his evidence with the state witnesses.
   
10. Further doubt in the veracity and the truth of your evidence is the alibi that you give in the box that you were with your brother Alois Maiu a very important stance in your case which was not disclosed on the 11^th September 2014 when you were in the record of interview with Police. Nor notice of it given to your lawyer to be pursued in a notice of alibi under the practise rules. It is recent and created in the box as you gave evidence. It is false and adds corroboration of the State case against you on identification. John Jaminan v The State [1983] PNGLR 122. You created a false alibi out of a conscious sense of guilt. The effect of which is that it corroborates the identification evidence of the state.
    
11. The first was one Freddy Wakore who was sworn whose evidence identified from the lights of Willie Tavup’s bus you Stanley Kapul armed with a small knife that you were swinging against the victim. He knew you because you all lived at the same area, accused lived at Laleki and he lived at Gigo. Both used to share smoke and betel nut prior to the offence and were on very good relationship then. He saw him 15 to 20 meters away in the light of the vehicle. He also identified another accused not before the court one Penni.
    
12. He testified that there were others who were there but were in the dark so he could not identify them. You were in the light and that is why he identified you.
    
13. The second state witness on oath was Lovelyn Dako wife of Freddy Wakore who accompanied him that night and she also made similar observations as to the identification of the accused Stanley Kapul who was well known to her as they lived at the same settlement. She said she recognized him from the light of the bus and also residences nearby there. She said she also recognized Penni and Toro from Kulingi both not before the court. When pressed in cross examination she said it was recognition as to the way he stood, walked, talked and repeated that had it not being for the light of the vehicle she would not have recognized him as was the case with the others in the dark.
    
14. I remind myself of the dangers of acting on identification evidence set out in the often quoted case in this area of the law: John Beng v The State [1977] PNGLR 115 that mistakes have been made as to the identification of close friends and relatives and it should be cautioned when acting on evidence on identification as is the case here. And that I do now in particular I consider the circumstances of the identification made, that it was not a case of a fleeting glance in a crowded street or dark alley way, but made in very good light beamed directly to the way the accused was because of the attention drawn to the victim who was in that light and who was set upon by the robbers as they tried to get off him the key to the bus money and valuables. And this was happening in the light directly beamed by the bus which was bright enough for the witness to make the identification more recognisable in view of the prior association of the witness and accused. The distance from which both made the identification is quite close 15 to 20 meters and there was nothing obstructing the view of the accused.
    
15. I find the evidence on identification very credible by both state witnesses corroborated by the accused own record of interview admission as to how the crime was perpetrated. He could not have given that description without being present taking part in it to give that account in the record of interview conducted on the 11^th September 2014 just less than 2 months from the 24^th July 2014 date of the offence. And that version is the truth being closer to the offence to today 16^th November 2017 three years where he has had to think about and tried to create a story incredible and not worthy of belief.
    
16. I find his evidence not worthy of belief and not on par in consistency and credibility against the state evidence on identification. I find the State evidence consistent and credible and I believe the State evidence on the identity of the robber Stanley Maiu Kapul.
    
17. I find as a fact that he Stanley Maiu Kapul was one of the robbers on that day the 24^th July 2014 who was actively participating armed with a knife that he was swinging at the victim Willie Tavup. He aided and abetted the robbery of Willie Tavup of his bus contrary to section 386 of the Code. And also aided and abetted in the unlawful use of that bus contrary to section 383 of the Code. Without his participation the unlawful use of the bus would not have taken place he was an active participant as opposed to an innocent bystander and therefore guilty also of the unlawful use of the bus contrary to section 383 of the Code: Wani v The State [1979] PNGLR 593
    
18. I return guilty verdict on the first count of aggravated armed robbery pursuant to section 386 against the accused Stanley Maiu Kapul. I also return a guilty verdict for the offence of unlawful use of motor vehicle contrary to section 383 of the Code against Stanley Maiu Kapul.
    
19. I find the accused guilty of aggravated armed robbery and unlawful use of motor vehicle.
    
20. I order that the accused’s bail money be refunded forthwith and he be remanded in custody.
    

Orders Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant