State v Damge [2022] PGNC 99; N9519 (3 March 2022)

N9519

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 647 OF 2020

THE STATE

V

MOSES DAMGE

Kimbe: Miviri J
2022: 01^st & 3^rd March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery Section 386 (1) (2) (a) (b) (c) CCA – Trial – Service Station robbery – No Issue Aggravated Armed Robbery – Identification Issue – Record of Interview Admission – Weight to be given – Sworn Evidence disputing Record of Interview – Brown v Dunn Rule – Credibility – Lies Out of Conscious sense of Guilt – Corroboration Identification – Discharge of Burden of Proof – Guilty of Aggravated Armed Robbery.

Facts
Accused was part of a group of men who were armed with homemade guns and knives who held up a lone security guard at night. A pump action gun with ammunition was stolen off him with cash and assorted properties to the value of K69, 500. 15 property of JR Holdings Service Station.

Held
Aggravated Armed Robbery committed in the night. Admission to offence by Accused in Record of Interview to Police. Identification made out pursuant. Guilty as charged of aggravated armed robbery. Verdict of Guilty.

Cases Cited:
Balo v The Queen [1975] PNGLR 378
Hagena v State [2017] PGSC 55; SC1659
Jaminan v The State [1983] PNGLR 318
Mai and Avi, The State v [1988-89] PNGLR 56

Counsel:

L. Maru, for the State
D. Kari, for the Defendant

VERDICT

03^rd March, 2022

1. MIVIRI J: This is the verdict after trial of Moses Damge of Wasakim village, Wosera, East Sepik Province charged with Aggravated Armed Robbery pursuant to section 386 (1) (2) (a) (b) & (c) of the Criminal Code in that he on the 19^th October, 2019 at Kimbe entered the premises of JR Holdings Limited accompanied by others armed with homemade guns and knives, where they held up one Ben Peau, threatened him with actual violence and stole from him a pump action shotgun serial number K923821 valued at K 45, 000. 00, 5 red 12-gauge bullets valued at K 250.00, K 19, 515.21 in cash from sales from that office and the food bar there, a HP laptop valued at K3000.00 and assorted other items to the value of K 1734.94 all belonging to JR Holdings Limited.
   
2. It was the allegation of the State that he was one of the persons in the group that entered the premises of JR Holdings Limited adjacent to the Ela Motors workshop Kimbe. And that he aided and abetted in holding up the Security Guard Ben Peau with the homemade guns and knives stealing all the properties set out above of JR Holdings Limited, after which they escaped. His aiding and abetting of the allegation meant that he was covered by the provisions of section 7 of the criminal Code Act. He pleaded not guilty denying the allegation levelled.
3. In proving its case, the State called and relied on the undisputed evidence from Jacqueline Baquiran, Manageress of JRH Puma Service Station Kimbe, statement dated the 25^th October 2019, Exhibit P1, that there was an armed robbery and breaking entering and stealing which occurred at the service Station shop and the office. And that one of the Security Guards, Ben Peau was held up at gunpoint by about eight (8) unknown persons, who also stole the pump action shotgun that he held together with five rounds of ammunition. And that in the morning when she came to assess the damages, she identified that the suspects used a bolt cutter to cut the back fence of Ela Motors to enter. She called another and reported the matter to the Police Station, but all had escaped. She confirmed that the stolen properties were Service Station cash sales K 17, 498.01; grocery food bar cash sales K 1217.20; coins for HYC & 7 Mart K 800.00; cigarettes K 1161.23; flex cards K 373.71; HP Laptop K3000.00; Digicel dongle K200.00; shotgun K 45000.00 and five (5) bullets valued at K250.00, altogether valued at K 69, 500.15.
   
4. The other State evidence admitted marked Exhibits P4, Statement of Henry Tand dated the 02^nd April 2020 reiterated what was seen by Jacqueline Baquiran, Manageress of JRH Puma Service Station Kimbe and the report made to the police. The next state evidence was exhibit P5, statement of Moses Narol, police officer from the Kimbe Police Station undated deposing to apprehension of the Accused at Kisere Bus stop on the 25^th March 2020, after he was allegedly identified as one of the suspects of a robbery of Tavur Lodge. Together they rushed out and apprehended the accused and took him into custody in the vehicle. He was interrogated and searched and it was discovered from this a 12-gauge buckshot, two (2) police uniforms, 2 police berets and trouser. They then drove to Tavur Lodge and informed the witnesses there to make their statement on the robbery and to give them it.
5. The other evidence exhibit P6 was the Statement dated the 30^th March 2020 of the Policeman Maxwell Mahuvu of the Kimbe Police Station. His evidence was similar in all material particulars as police Officer Moses Narol of that day 25^th March 2020 in the apprehension and detention into custody of the accused. Including search discovery of the evidence set out above on the body of the Accused.
6. Both witnesses had each of their Statements tendered without any dispute and marked respectively as exhibits set out above. There was continuity in Exhibit P8 Statement dated the 30^th March 2020 of Alexander Isouve Officer in Charge Criminal Investigations Branch, Detective Senior Constable of Kimbe Police Station. It was established that he had conducted the record of interview with the accused on the 30^th March 2020, some seven days after he was picked up on the 23^rd March 2020, particulars set out in the evidence of both police Officers Moses Narol, and Maxwell Mahuvu. And after which he charged him with armed robbery, and Break & Enter and Stealing in Charge Book number 243-244/20.
   
7. In his statement was exhibit P8(1), P8(2), P8(3) which were the photos of the subject pump action shotgun with its serial number depicted, and the scene of the break enter and robbery. They were in completion of the crime.
8. What was material was the evidence exhibit P2 the original pidgin record of interview conducted with the accused by Detective Senior Constable Alexander Isouve on the 30^th March 2020 and translated Exhibit P3. Both were undisputed and tendered into evidence and marked respectively as set out above. And initially was in pidgin language elected to by the accused who understood it and could write in it. At the outset he was introduced that both Detective Senior Constable Alexander Isouve and Rueben Bairi corroborating officer were making enquiries in respect of the subject aggravated armed robbery at JRH Service Station Kimbe.
9. There was no impropriety in respect of the according of the Constitutional rights of the Accused pursuant to section 42 (2), He elected not to speak to anyone advised. His particulars were obtained, and he agreed that he was aware of the allegation of the subject break enter and stealing and the armed robbery of JR Holdings Service Station on the 19^th October 2019 in the early hours of the morning at 2.45am to 3.00am.
10. He was asked to give his story on what happened there. At the same time, he was cautioned to remain silent if he so desired, but whatever he said would be written down and used as evidence in the matter. And he was asked to tell his story which he recounted at question 14, “Mi bin Lukim olsem igat gan security save holim so mi tokim ol bois na mipla igo long dispela morning. Mi igo sanap arere long banis lukim olsem nogat mahn na mi save olsem security silip pinis. Mipela sanapim step long fens na mipla kalap igo insait. Mipela Paksy from Morobe, Jimmy bilong Sepik, Palai bilong Arove, Kapul bilong Arove/Talasea mipela kalap ingo insait sanap insait nau. Tupela mangi igo karapim security em Paksy, Jimmy na Palai na mi wantaim Kapul sanap tambolo.

Kisim gan pinis kam arasait nau mi wantaim Kapul burukim stoa usim naip na iron long burukim doa. Mitupela igo insait na kisim wanpela laptop computa, paket simuk em Cambridge fourpela peket na coins em K50 coins. Mipela sharim pinis na mipla buruk. Em tasol.

11. Interpreted, “I used to see the Security guard holding that gun so I told the boys and we went there in the morning. I went and stood near the fence and saw that there was nobody there and I knew that the Security guard was asleep. I placed a ladder on the fence and was climbed over and went inside. We PAKSY from Morobe, Jimmy from Sepik, Palai of Arove, Kapul of mix parentage of Arove/ Talasea we jumped into the premises. The three boys that woke up the Security Guard was Paksy, Jimmy and Palai while Myself and Kapul stood at the fence. They got the gun and came outside and myself and Kapul then broke the store using a knife and iron bar to break open the door. We went inside the store and got a laptop computer, packet cigarettes, coins money and both of us came out, jumped over the fence, and ran away along the riverbank towards the mountain towards section 42 bush camp. We met there and we distributed the coins and cigarettes. I received a share of K 50 cash in coins and four packets (4) of Cambridge cigarettes. That is all.”
    
12. In Question 15 of that record of interview the accused is asked, “Where were you on Saturday the 19^th October 2019 between 2.45am and 3.00am? A. I was at the service Station. Q16. What were you doing there? A. I broke the Store. Q17 who were you with? A. Paksie, Kapul, Palai, Jimmy and Myself. Q18, I put to you that Parsie is Gima? A. Yes, he is from Morobe. Q19. I put to you that this Palai is Clement Midan A. Yes. Q20. I put to you again that Jimmy is Jimmy Balti? A. Yes Q21. You were with these guys apart from that were there others more? A. No. Q22. Police alleged that you and others did steal a gun from a security guard. What will you say? A. Yes. Q23. Do you know the type of gun? A. A black/brown colour pump action shotgun and six rounds. Q24 Who took the gun? A. Paksie. Q25 How did you enter the premises? A. We placed a ladder and climbed over and went inside the store, I used an iron and bush knife to break open the store. Q26. What were some of the properties you took? A. A HP laptop computer, packet of cigarettes, Cambridge, rave, and some coins inside a carton box.”
    
13. In questions 28 the accused does not deny that he was in possession of the properties set out in the evidence of police Officers Moses Narol, and Maxwell Mahuvu, police uniforms and the 12-gauge bullet. And he admits at question 29 that he wanted to steal. And at questions 30 to 33, that the Police Uniforms were of an elderly policeman named Max of Madang who used to work at the Green Sector at section 42 in 2015. And that he had got the uniforms when there was family problem within that family and the house was left, he went inside and got them. He wanted to wear them and to hold up vehicles knowing that it was against the law to so do.
    
14. Accused agrees to sign the record of interview and signs in the middle of the end of the record of interview. This is after it is read to him and he agrees with it. He elects not to make any changes and agrees that it is a true and correct copy of the interview. That he gave what is recorded within and he was not threatened nor induced to make it. It is also signed by the Arresting Officer and his Corroborator whose evidence are undisputed and admitted into Court.
    
15. Against this evidence, the accused elected to give sworn evidence. He disputed the admissions stating that Policeman Maxwell Mahuvu made them up and he was the corroborator not the other policeman in it. He did not make the admissions as set out above. He did not call any evidence in support to advance his case further. Nor did he file any notice of voir dire or examine and put to the witnesses for the state this fact following the Rule in Brown v Dunn in law. In particular Detective Senior Constable Alexander Isouve and Rueben Bairi corroborating officer, police Officers Moses Narol, and Maxwell Mahuvu.
16. He disputed the admissions that are allegedly contained in the record of Interview Exhibits P2 and P3 which have been admitted into evidence without any dispute or objection as to their admission. I determine that as there is no other evidence to strengthen his case, it appears to be recently concocted, because there is not even a notice of voir dire filed objecting to its admission. Primarily, it is not put to the State witnesses called relevantly of Detective Senior Constable Alexander Isouve and Rueben Bairi corroborating officer, police Officers Moses Narol, and Maxwell Mahuvu. And would fall into similar as in Jaminan v The State [1983] PNGLR 318 where lies told out of a conscious sense of guilt amounted to corroboration of the account given by the Prosecution. This is the only rational and credible inference that I can draw from this evidence.
17. Conscious sense of guilt because the admissions in the record of interview set out above are incredibly detailed and to minute details. And for a man who was not involved it would not be possible to make out the details that he sets out above. He can only make the details he sets out because he was there. That is consistent with the loud bang that Ben Peau describes which the accused says was him breaking open the door with his knife and iron. And of leaving another guarding Ben Peau. Including the stealing of the cigarettes and coins consistent with this witness’ evidence. Materially also the pump action shotgun and its 12-gauge bullets. Both his sworn evidence and the record of interview admits receipt of the 12-gauge bullet from the boys, one of whom is called Paksie. Consistent with the record of interview made closer to the armed robbery on the 19^th October 2019. The sworn evidence in court has been made after three years, no doubt he has had to consider the implications of the admissions in the record of interview in that given period of time. Its implication upon him as to the gravity of the offence and this evidence connecting him to the offence has no doubt gruelled his mind, so much so that he has tried in vain to paint a picture distancing him from the offence. The effect of which in aggregate is that his false denials have corroborated the identification of himself to the crime: Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). I reject his evidence on this basis and accept the State’s evidence. The totality is that this evidence establishes the link in the State’s case, identification of the perpetrators of the aggravated armed robbery trial here.
18. His admissions in the record of interview are self-serving and are the truth as it happened on that early hours of the morning of the 19^th October 2019. It details and goes hand in hand with the evidence of Ben Peau. He could not have seen what Ben Peau saw unless he was there executing and taking part in the crime. He has admitted fully in law giving effect as in Balo v The Queen [1975] PNGLR 378, that the veracity of the admissions is not in any way effected as to their truthfulness. Nor are there breaches of Section 42 (2) of the Constitution here to derail reliance and admission of the evidence: Mai and Avi, The State v [1988-89] PNGLR 56.
19. In my view and I determine that this evidence establishes beyond all reasonable doubt that there was an armed robbery committed by three armed men with homemade guns and knives. They were accompanied by others who were outside the area where Ben Peau was. And that all the properties as alleged on the Indictment were stolen by these men. One remained guarding him whilst two went out. He heard the sound as if there was a breaking on the other side. And saw them escape with the last person holding the laptop in one hand and the homemade gun in the other. It was dark in the night and he did not identify any of the three men or anyone of them. He does not describe any of the men but merely says they were young men.
20. This issue is now established by the evidence of identification from the Accused’s own admissions in his record of interview with police, which put him as one of the active participants of the aggravated armed robbery. Because he used a bush knife and iron to break open the store from which the laptop and other properties set out above were stolen. The State has discharged the burden of proof beyond all reasonable doubt that Moses Damge was one of the persons in the group on that night of the 19^th October 2019 at about 2.45am to 3.00am, who committed the crime of robbery upon the security Guard Ben Peau and stole all the properties set out in the Indictment. He was in possession of one of the 12-gauge bullets and police uniforms and beret that he intended to stop vehicles and commit armed robbery. His credibility as a witness of truth is not there comparably with that of the State. I reject the submission by counsel that the 12-gauge bullet was not of this aggravated armed robbery. I find it was one of the 12-gauge bullets that was the proceed of this crime. It was in the possession of the accused because he was a participant of that robbery, his own admissions detail his role in the crime. There is no better evidence than the Accused’s own admissions to put him as one of the active and leading participants in law by section 7 of the Criminal Code of the aggravated armed robbery that night. The State has discharged the burden of proof. I find him guilty of aggravated armed robbery as charged pursuant to Section 386 (1)(2) (a) (b) & (c) of the Criminal Code Act.
21. The verdict of the Court is guilty of aggravated armed robbery as indicted.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant