State v Tolom [2021] PGNC 580; N9407 (3 December 2021)

N9407

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 1412 & 1435 OF 2017

THE STATE

V.

NICKA TOLOM & JOVITHA TULEM

Kerevat/Kokopo: Suelip AJ
2021: 12^th, 25^th, 26^th November & 3^rd December

CRIMINAL – verdict – trial – conspiracy to commit a crime – s. 515 Criminal Code – State to prove all elements beyond reasonable doubt – defence of mistaken belief – fail to prove element of conspiracy to commit robbery – both accused persons not guilty – acquitted and discharged

Cases Cited

Roland Tom & Anor v. State [2019] SC1833
State v. Iori Veraga (2005) N2849
State v. Garry Bogas & Anor [2021] N9140
State v. So’on Torah (2004) N2675

Counsel

J Noma, for the State
S Pitep, for Accused Nicka Tolom
N Rainol, for Accused Jovitha Tulem

VERDICT

3^rd December, 2021

1. SUELIP AJ: On 12 November 2021 at Kerevat, you, Nicka Tolom, and you, Jovitha Tulem pleaded not guilty to the charge of conspiracy to commit a crime pursuant to section 515 of the Criminal Code Act. Trial was conducted on 25 November 2021 in Kokopo, and submissions on verdict was heard on the following day.

2. This is my ruling on verdict.

3. The allegations against the both of you are these. On 5 September 2017, you both went to the Central Business Service and hired a vehicle at Takubar, Kokopo. The vehicle is described as Toyota 5^th element, double cab, registration number RAQ 545, white in color. The person in charge of hire cars for the CBS Joseph Kupre knew you, Jovitha as he knew your husband, William Tonga. He also knows that Mr Tonga has two or more private vehicles. Being curious as to why you needed to waste your money on vehicle instead of using your husband’s vehicle, he asked you, Jovitha but you said you needed the vehicle for a private work. Mr. Kupre trusted you, so he took a snapshot of your driver’s license, received K500 cash hire fares and before giving the vehicle to the two of you, he explained to you both that the policy to hire vehicles are that:

(a) No driving of the hired vehicle out of the East New Britain Province to West New Britain.

(b) Alcohol is not allowed in the vehicle.

(c) No other persons other than the person who hire the vehicle should drive the vehicle, in this case, you Jovitha.

4. Jovitha drove the vehicle and Nicka Tolom was sitting on the offside. Before driving off, you both also promised Mr Kupre that you would return the vehicle the next day at the same time, that was around 7:30pm when you two took the vehicle. On the next day, 6 September 2017, around 9am, the same hire vehicle was used as a getaway car in an armed robbery of Spirit of Rabaul office in Kokopo where the robbers took copra money of K20,000 in cash, 2500 K3 Digicel flex card worth K7500.00, 2500 K5 Digicel flex card worth K12,500.00, a Lenovo laptop computer worth K1269.00 and 8 bottles of 350 milliliter King Cup Dry Gin worth K191.60, all in the total sum of K41,450.60, the properties of Spirit of Rabaul Limited. One the robbers namely Nigel Francis was caught by the security guards outside the property of Spirit of Rabaul, bashed up, and apprehended by the police. The vehicle was recovered, and Mr Kupre confirmed that it was the same vehicle hired by you two prior to the robbery, and that you both should have some idea as to how the vehicle was used in the armed robbery. You both were arrested and charged thereafter. The State alleged that you both conspired with the armed robbers and facilitated the getaway vehicle. The State says that your actions contravened section 515 of the Criminal Code Act.

5. Section 515 of the Criminal Code states the following:

515. CONSPIRACY TO COMMIT CRIMES.

A person who conspires with another to commit a crime or to do any act in any part of the world that –

(a) if done in Papua New Guinea would be a crime; and

(b) is an offence under the laws in force in the place where it is proposed to be done,

is guilty of a crime.

Penalty: If no other penalty is provided –

(a) imprisonment for a term not exceeding seven years; or

(b) if the maximum penalty for the crime in question does not exceed imprisonment for a term of seven years–not exceeding that penalty.

6. For this Court to find you guilty of the charge of conspiracy to commit a crime, the State must prove all the elements of the offence. These elements are: -
(i) the accused person
(ii) conspired with another
(iii) committed a crime

7. The issue is whether you both conspired with Nigel Francis to commit the crime of armed robbery?

8. With consent from defence, the State tendered into evidence the following documentary evidence: -

Document Exhibit

(i) Record of Interview of Jovitha Tulem

(English and Tok Pidgin translation dated 26/09/17 S1

(ii) Record of Interview of Nicka Tolom

(English and Tok Pidgin translation dated 12/09/17) S2

(iii) Statement of Senior Constable Robert ToVung

and photographs of the hire vehicle S3

(iv) Particulars of items stolen at Spirit of Rabaul S4

9. To support its case, the State called 3 witnesses. A summary of each witness testimony is outlined hereunder.

(i) Joseph Kupre

He said he is married with 8 children, and he hails from Mt Hagen. He said he is the Sales Manager for Central Business System in Kokopo. He recalls on 5 September 2017 when you two went to him and hired a vehicle. He said he knew Jovita’s husband well and asked you why you were trying to hire a vehicle when your husband owns a few vehicles. He said you responded that you need the car to do some personal work. He said he was then only conversing with you, Jovitha. He said he told you that only his official car was available which he can lease to you. He said before he gave you ladies the car, he took a photo of Jovitha’s drivers license and also told you two about the conditions of hire which included not driving out of the province, not drinking in the vehicle and only the designated driver, Jovitha is allowed to drive the vehicle. He then said you both promised to return the vehicle at the same time the next day. He also said he took K500 as payment for the vehicle from Jovitha. On the next day, he said he received news that his official car was used as a getaway vehicle in an armed robbery. He then told the police that his vehicle was hired by you two the previous day. He said that his car was damaged during the robbery, and after he paid for the repairs, he got the vehicle back with authority from the police.

During cross examination, he said he knew you, Jovitha well and that is why he leased the vehicle to you. He said he did not know the vehicle was going to be used in the robbery.

(ii) Hilda Henry

This witness is an employee of the Spirit of Rabaul who was held up on 6/09/17. She said during the robbery, she was confronted by 4 masked men holding guns or pistols. She said the men held her at gunpoint and told her it was a hold up. She said each men went to separate sections of the shop and took various items including cash from the shop and left. She said she was unable to identify the masked men and as soon as the robbers left, she fainted twice and was taken to the hospital for medical attention. She was not cross examined.

(iii) Justin Meniat

He is a constable with CID unit in Kokopo. He said on 6 September 2017, he received reports that there was a robbery at Spirit of Rabaul. He said he then went to the crime scene and during his investigations, he discovered that the vehicle used in the robbery belonged to Joseph Kupre. He said he contacted Mr Kupre and was told that the vehicle was hired the day before by the two of you. He said you both were interviewed separately and each of you denied any involvement in the robbery. He said you both said the hire car was to be used to transport items to Rieit at Warangoi.

During cross examination, he confirmed that you both told him separately that the hire car was to be used to transport stuff to Rieit and none of you knew it will be used in the robbery. He also said he was aware that the owner of the vehicle demanded repair monies from you, Jovitha but he does not know how much was demanded. He said that he got approval from the PPC to release the vehicle back to the owner.

10. That completed the State case, and the State then formally closed its case.

11. Thereafter, counsel for Nicka Tolom then made a no case to answer application. She relied on the first leg of the Kundi Rape case where the State is unable to provide evidence to satisfy all the elements of offence. She says the State cannot prove that the two of you conspired to hire the vehicle to be used in the robbery. The application was supported by counsel for Jovitha Tulem. The State objected to the application and the Court upheld the objection and ruled that there is some evidence in the Record of Interview where there was communication between Nigel Francis and you, Nicka Tolom prior to the robbery. The Court therefore refused the no case to answer application.

12. In your defence, Nicka Tolom were called to give evidence. In summary of your evidence, you said that on 5 September 2017, you were at your house when your cousin, Nigel Francis and another person named Kekep came to see you. They told you that they needed a vehicle to bring materials for a house at Reiet and their uncle had given money for the hire. You then went down to the Kokopo market where you saw your cousin, Jovitha who was waiting for a PMV to go home. You both were then taken to Joseph Kupre’s place where you spoke to him about the hire and gave him K500 to pay for the hire. You and Jovitha got into the car, got some fuel and drove home. Jovitha left the vehicle at your place and went to rest. You and others then loaded the stuff onto the back of the vehicle ready to transport to Reiet the next day. Then you said, Nigel insisted you give him the keys to the vehicle so he can learn drive. You said Nigel left with Richard. You said you waited for Nigel and Richard to return the vehicle that night but they never came back so you went to sleep. Next morning, you heard that Nigel was shot at Spirit of Rabaul and the hire vehicle was used in the robbery. You denied any knowledge of the robbery. You said you were assaulted when you were brought in for interview at the Police Station and after your arrest, you have been in prison since.

13. During cross examination, you said you do not know how to drive and that is why you asked Jovitha to assist you. You maintained that you hired the vehicle to carry materials to Reiet for a house and that you did not know that the vehicle was to be used for the robbery.

14. Also, in your defence, Jovitha Tulem was called to give evidence. In summary, you said you are married with 2 children. You said on 5 September 2017, you had a domestic argument with your husband, William Tonga and you came to Kokopo market to catch a PMV to go to the village. You said that was where you met Nicka Tolom and she asked you to help her hire a vehicle to transport materials from her house to Rieit. You said in your depressed state of mind and without really thinking, you went with Nicka to Joseph’s house. You said Nicka did all the talking and paid for the hire. The only thing you did was to show your driver’s license and drive the car to Nicka’s house. You then went to your aunt’s house and slept. You said in the morning, you heard that the hire vehicle was involved in an armed robbery. You said you called Nicka and insisted you both go to the Police Station and explain. You say you were used to get the vehicle.

15. In cross examination, you confirm the hire vehicle was used in the robbery. You also say that both Nicka and Nigel are your cousins. You said you did not say anything during the Record of Interview because the police officers had interviewed you about 5 five times and there was nothing else to say. You also say there is no reason for you to rob because you are working and committing such an offence is bad publicity for you and your husband, who is a prominent figure in the province.

16. You two were the only witnesses called in your defence.

Proving the elements of conspiracy to commit a crime

17. The State is required to prove all the elements of the offence of conspiracy to commit a crime. Firstly, there is no issue with both your identification. You are the ones who hired the vehicle, which vehicle was used in the armed robbery on 6 September 2017. The first element of the offence is therefore proven.

18. The second issue is the main contention. The State relies on Roland Tom & Anor v. State [2019] SC1833 and State v. Iori Veraga (2005) N2849 where conspiracy is defined as “an unlawful agreement between two or more people. There is no need to establish direct communication between co-conspirators, nor even an express agreement, provided there is a design which is common to all of them to bring about the unlawful object of the agreement”. The State says there is clearly a pattern of behavior by you, Nicka Tolom which suggest that you know the vehicle was to be used in the armed robbery. The State further says that it was not your idea to bring materials to Reiet but Nigel’s and it was also Nigel’s money that was used to hire the vehicles. The State also says that you, Jovitha used your driver’s license to get the hire car knowing that the vehicle will be used for the robbery. Therefore, the State says that although things were done without any express agreement, it was for a common purpose. After all, you were all cousins, from the same village and you all pre-planned to hire and use the vehicle in the armed robbery and not for any other use. The State says there was an understanding between you two and Nigel Francis but you both are now distancing yourselves from the offence.

19. For you Nicka Tolom, your counsel says there is no evidence adduced in Court to prove that you conspired with Nigel Francis or Jovitha Tulem to hire a vehicle for use in the armed robbery. She says you acted in honest belief that the hire vehicle was to be used to transport materials to Reiet. She also says you deny any knowledge that the hire vehicle will be used in the robbery. Your counsel also said you said the same things to Jovitha when you met her at the market. She said it is also evident in your Record of Interview that you were not aware that the hire vehicle will be used in the robbery. Thus, she submits on your behalf that the State has not proven the second element of the offence beyond reasonable doubt.

20. For you Jovitha Tulem, your counsel that there must be an agreement and anything short of that would be insufficient to be found wanting under this charge. Counsel referred to State v. Garry Bogas & Anor [2021] N9140. Your counsel says that the element of conspiracy consists of an agreement between two persons to do an unlawful act. She submits that in your case, there is no meeting of minds between you, Nicka and Nigel to plan to commit to any illegal act. Therefore, she submits this element is not proven beyond reasonable doubt.

Credibility of witnesses

21. I adopt the statement of His Honor Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says: -

“Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanor of the witnesses and consistencies in their evidence”.

22. I have observed the both of you in the witness box. You were both confident and spoke clearly. There were also some emotions when expressing frustrations especially from you, Jovitha but you both answered questions without any hesitation and so you are both impressive witnesses. I am of the view that you both are truthful witnesses.

23. Further, there is logic and common sense in each of your testimony. For instance, you, Jovitha said you have no reason to be involved in the robbery as you have a paying job. Besides, you do not want to humiliate or embarrass your husband and his reputation. For you, Nicka, you have maintained your innocence all these years in prison and thus sacrificing your time with your family.

Findings

24. The State has only proven the first and third elements where you both are the accused persons and there was a robbery at the Spirit of Rabaul on the morning of 6 September 2017. However, the element of conspiracy to commit lacks evidence to prove it. There was no plan, expressed or otherwise between you two and Nigel Francis to commit the offence. Hence, I find that the two of you did not conspire with anyone to hire a vehicle that was be used in the robbery.

Verdict

25. I am not satisfied that the State has proven beyond reasonable doubt that you both conspired with Nigel Francis to commit the robbery. Therefore, you, Nicka Tolom and you, Jovitha Tulem are found not guilty of the charge of conspiracy to commit a crime. You both are now discharged forthwith. For you, Jovitha Tulem, your bail monies of K1,000 will be refunded to you.
_______________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Accused, Nicka Tolom
NatPhil Lawyers : Lawyers for the Accused, Jovitha Tulem