Karani and Aimondi v The State [1997] PGSC 19; SC540 (31 December 1997)

Unreported Supreme Court Decisions

SC540

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO 42 & 43 OF 1996
BETWEEN
LEE KARANI AND EDDIE AIMONDI - APPELLANTS
AND
THE STATE - RESPONDENT

Kimbe

Los Hinchliffe Injia JJ
27 November 1996
29 November 1996
31 December 1997

CRIMINAL LAW - Parties to offence - Aiding and abetting - Pistol supplied by two policemen to principal offenders to commit any robbery and in return proceeds of robbery given to them - Principles applicable - Criminal Code (Ch. No. 262), S. 7(1) (b) & (c).

Cases Cited

R v Bainbridge [1959] 3 ALL ER 200

R v William Taupa Tararula [1973] PNGLR 140

The State v Laiam Kiala & Mesiri Gomosi [1977] PNGLR 470

Agirru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37

The State v John Badi Woli and Pengas Rakom [1978] PNGLR 51

Porewa Wani v The State [1979] PNGLR 593

Counsel

Appellants in person

J Gah for the Respondent

31 December 1997

LOS HINCHLIFFE INJIA JJ: These two appeals were heard together at Kimbe on 29 November 1996 and the Court delivered a short judgment on these two appeals. We dismissed both appeals against conviction but allowed the appeal against sentence in both appeals. The majority comprising of Los J and Injia J reduced the sentence of ten (10) years to five (5) years whilst the minority comprising of Hinchliffe J imposed seven years. Due to time constraints, we were only able to give full reasons on sentence. We were unable then to fully discuss the facts and principles of law supporting the conviction. We indicated then that we would do so at a later date. We do so now. In relation to conviction, we said on 29 November 1996:

“The appellants were found guilty of robbery by virtue of S. 7 of the Criminal Code. They were sentenced to 10 years imprisonment.

Extensive evidence was called to connect the appellants and certain principle of law was referred to. We would consider fully at a later date how the law especially in an English case cited by the trial judge would apply in similar facts situation. The case is R v Bainbridge [1959] 3 ALL ER 200.

At this stage we are very clear in our mind as to what decision we will deliver now. The thrust of the allegation which led to the conviction of the appellants was that the appellants who were police men at the time were in possession of a police pistol which they gave or lend to some other people who used it to rob a company called the Spirit of West New Britain in September last year. They stole a large sum of money and a vehicle. Some of the money was given to one of the appellants. Several days later both appellants came and took the pistol from an agent of the persons who committed the robbery. In our view the evidence called supported the basic allegation and therefore the trial judge was correct in finding the appellant guilty.”

The grounds of appeal relating to conviction were as follows:

Lee Karani

(1) The alleged pistol was not taken away from my possession when used in the said robbery as it was evidence before the National Court.

(2) There is no proof from the witnesses nor the Registry that I took the pistol from the armoury.

Eddie Aimondi

(a) The alleged pistol used in the said robbery was not given to anyone or even to those criminals by me.

(b) I whilst on duty re-captured the main suspect who used the alleged pistol in the robbery as he gave evidence before the National Court.

(c) There is no proof or eye witness that I stole the pistol from the Firearms Office (Armoury).

At the material time, the two accused were policemen stationed at Kimbe Police Station. They were charged with being involved in the robbery of the Spirit of West New Britain Company store in Kimbe on 14 September 1997. They were charged under S. 386 of the Criminal Code in connection with S. 7 of that Code, in aiding and abetting the commission of the robbery by some other persons by supplying a pistol, namely a Ruger Magnum .357 Pistol, for use in the robbery. In the robbery large sums of money in cash and cheques and a motor vehicle were stolen.

The issue before the trial judge was whether “the accused (got) possession of the pistol and whether they supplied it to those persons who actually committed the robbery, knowing that it would be so used”. This is the same issue raised in this appeal by the two Appellants in their respective grounds of appeal. To the extent that the two Appellants raise this issue, we take it that they do not contest the trial judge’s findings that at all material times the said pistol belonged to Kimbe Police, that prior to the robbery, it went missing from the Kimbe Police Firearms Armoury and that the same pistol was used by those other persons to commit the robbery.

The trial judge’s findings on the evidence on the issue of taking the pistol and supplying it to those other persons is brief. We quote in full the pertinent parts of his judgment.

“So where did this pistol come from, or how did it come into the possession of the witnesses and get used in the robbery or robberies. Police weapons are kept in the police station in a secure place called the police armoury. Normally there is a strict procedure for the release of weapons from the police armoury, namely recorded in a firearms register book, however for 1995 it appears that the procedures had fallen into disuse. There is no evidence of a proper firearms register being kept in 1995. However Sergeant Wartovo, the OIC of the armoury, insisted that he was careful in the keeping of the weapons and he was sure that this pistol serial number 17117447 disappeared without proper authority or record from his office between the 31st March and the 3 April. The evidence is clear that it was taken somehow as the witnesses had it and it was recovered later in the year. But did one or other of the accused take it? A number of witnesses identify the accused as the persons who had the pistol and delivered it to them. So do I believe these witnesses.

Sam Bigo said ‘I took a pistol from John Tuka, we took it and used it to hold up the SP depot’. (This was the Spirit of West new Britain Co). John Tuks said he went and got the pistol from section 21. Ben gave him the pistol and told us the pistol belonged to Lee Karani. After the SP robbery John said he was given K200.00 to give to Lee Karani because he was the owner of the gun. Then on 17th September Lee Karani and Eddie Aimondi came to him and asked for the pistol. They said they needed it to take to Buvussi.

Peter Komo gave evidence of the 2 Defendants coming to his tuckerbox in April 1995 and giving him a pistol in exchange for credit and some store goods. They left the pistol with him for a week and then took it back. Jimmy Kware corroborates Peter’s story of the accused giving him the gun.

Johannes Kesh gave evidence Lee Karani and Eddie came to the Block in April last year and gave the pistol Joseph Morris. ‘Lee said you use the pistol and later you can give me some money.’ He then said the pistol was used in a robbery later in Kimbe at the PNGBC. Johannes said after that robbery he gave K200.00 to Lee Karani and K150.00 to Eddie. He repeated about Lee saying to Joseph Morris, ‘you steal some money and some must be given to me’.

A witness for the accused Constable Skub tried to suggest that this particular pistol was in his possession in May last year. He insisted that it was this particular pistol with the special sight. Whilst he could have had a pistol for security purposes I find it interesting that he can describe the pistol by the special sight a year later yet he neither had nor gave any record of the serial number of the pistol nor did he note the type and serial number properly in the O.B. book. Yet there is overwhelming evidence that this particular pistol was being handed over by the accused before that. Constable Skub may have had a similar pistol for security duty, there were other Ruger pistols around at the Police Station. Further Constable Skub was a CID officer and would have known about the missing pistol and the ongoing investigation yet the first time he gives this story to anyone is during the course of this trial this week. I am not satisfied that he had the pistol serial number 17117447.

The accused have given consistent denials. Whilst they have a right to remain silent, they did not answer questions from the CID when charged, that exercise of their right to remain silent can backfire later, they have not at any time attempted to explain why so many different people would incriminate them. They say in effect that they have been framed. But why. I realise that much of the evidence against them is the evidence of what can be called accomplices and this court must assess that evidence very carefully. But here there is too much, too many people giving consistent stories of the accused handing around the pistol and getting or seeking advantages.

I find the following:

There is no doubt that the pistol in exhibit is the pistol serial number 17117447 acquired for the Police in Kimbe in 1991.

The pistol did disappear from the police station in suspicious circumstances in April 1995.

The pistol was in the possession of the accused without authority after its disappearance in April.

The accused did between themselves hand the pistol around to people for advantage and knowing it would be used in the commission of a robbery or robberies.

The pistol was used in the robbery of the Spirit of West New Britain Company on 14 September 1995.

I find there is no other scenario that can fit all the evidence. There was no evidence at all to support any lawful possession of the pistol by the accused at any time. There is no evidence of any innocent or authorised passing over of the pistol to the various persons.

I find the accused did aid and abet the commission of the robbery of the Spirit of West New Britain Company in September 1995 and are therefore guilty of robbery by virtue of Sections 386 and 7 of the Criminal Code.”

Having carefully studied the evidence against the two accused, we agree with the trial judge’s finding on the evidence that the two accused took possession of the said pistol from the Police Firearms Armoury at Kimbe Police Station. The evidence of the taking of the pistol from the Police Station was circumstantial. The evidence before the trial judge was that the two Appellants were rostered for duty with 4 other policemen from 30/3/95 - 12/4/95. The pistol went missing between 31st March 1995 and 2/4/95. The robbery was committed on 12 April 1995. According to Sgt. Wartovo, the OIC of Firearms at Kimbe Police Station, the pistol was stolen from his office, from the second drawer of his desk which had no locking devise. On Friday 31/3/95, he cleaned the pistol and put it there and went home at 4 pm. He did not put the pistol in the armoury where it was supposed to be kept because he was busy that day. On Monday 3/4/95, upon return to work at 8 am, he noticed the pistol was missing.

In his evidence, Lee Karani said he was off-duty as per duty rooster on Thursday 30th and Friday 31st March and started work on Saturday 1st April 1995. Eddie Aimondi in his evidence said on 30-31/3/95, he was off-duty. He started work on 1/4/95 on the 3 pm - 11 pm shift. In this appeal, both Appellants said Saturday 1/4/95 and Sunday 2/4/95 were week-ends and office was closed so they were not on duty at the office. This is not what they told the trial judge. On the evidence, the trial judge was entitled to find that the pistol went missing in the period the two Appellants were on duty. Because the pistol was under their care and custody by virtue of them being on duty at the Police Station and it went missing, the trial judge was entitled to draw such inferences and attach such weight on the whole of the evidence as he saw fit. The trial judge was entitled to hold that they took possession of the pistol. There was also sufficient evidence to show that the two Appellants were in possession of the pistol before and after the robbery and that they gave the pistol to those persons who committed the robbery of Spirit of West New Britain Co store.

The question is whether it was necessary for the prosecution to show that when they handed over the pistol, they knew that the pistol was going to be used for this particular robbery, namely robbery of the Spirit of West New Britain Co store on 12 April 1995. This is where the application of the principles in R v Bainbridge [1959] ALL ER 200 becomes relevant. In that case, the English Court of appeal dealt with an appeal in which directions of the trial judge to the jury was appealed from. Thieves used an oxygen cutting equipment to break into the Stoke Newington branch of Midland Bank and stole $18,000. The equipment had been bought for them by the Appellant. The case against the Appellant was that he bought the equipment on behalf of one or more of the thieves and knew that it was going to be used “if not against the Stoke Newington branch of the Midland Bank, at any rate for the purposes of breaking and entering premises”. The Appellant’s evidence before the trial judge was that he had bought the equipment for one of the man involved in the robbery, that he was suspicious that the man wanted to use the equipment for something illegal. He thought it was intended to be used for breaking up stolen goods. Therefore he gave false names and addresses, but he had no knowledge that the equipment was to be used for committing this particular robbery. The trial judge’s direction to the jury appealed from included the following:

“To prove that, the prosecution have to prove these matters: first of all, they have to prove that the felony itself was committed. Of that there is no doubt. That is not contested. Secondly, they have to prove that the [appellant] knew that a felony of that kind was intended and was going to be committed, and with that knowledge he did something to help the felons commit the crime. The knowledge that is required to be proved in the mind of [the appellant] is not the knowledge of the precise crime. In other words, it need not be proved that he knew that the Midland Bank, Stoke Newington branch, was going to be broken and entered, and money stolen from that particular bank, but he must know the type of crime that was in fact committed. In this case it is a breaking and entering of premises and the stealing of property from those premises. It must be proved that he knew that that sort of crime was intended and was going to be committed. It is not enough to show that he either suspected or knew that some crime was going to be committed, some crime which might have been a breaking and entering or might have been disposing of stolen property or anything of that kind. That is not enough. It must be proved that he knew that the type of crime which was in fact committed was intended...

If in fact, before it has happened, [the appellant], knowing what is going to happen, with full knowledge that a felony of that kind is going to take place, deliberately and wilfully helps it on its way, he is an accessory...If he was not present he would not be guilty as a principal, but then you would have to decide whether he helped in purchasing this equipment for Shakeshaft knowing full well the type of offence for which it was going to be used, and, with that knowledge, buying it and helping in that way.” (at p. 201-203).

Counsel for the Appellant in that case argued that:

“In order that a person should be convicted of being accessory before the fact, it must be shown that, at the time when he brought the equipment in a case such as this, he knew that a particular crime was going to be committed; and by a ‘a particular crime’ counsel meant that the premises in this case which were going to be broken into were known to the appellant and contemplated by him, and not only the premises in question but the date when the crime was going to occur; in other words, that he must have known that on a particular date the Stoke Newington branch of the Midland Bank was intended to be broken into.” (at p. 203).

The Court of Appeal rejected this argument. In refusing to criticise the trial judge’s direction to the jury and dismissing the appeal, Lord Parker, who delivered the judgment of the court said (at p. 203):

“The court fully appreciates that it is not enough that it should be shown that a person knew that some illegal venture was intended. To take this case, it would not be enough if the appellant knew - he says that he only suspected - that the equipment was going to be used to dispose of stolen property. That would not be enough. Equally, this court is quite satisfied that it is unnecessary that knowledge of the intention to commit the particular crime which was in fact committed should be shown, and by ‘particular crime’ I am using the words in the same way as that in which counsel for the appellant used them, namely, on a particular date and particular premises.

It is not altogether easy to lay down a precise form of words which will cover every case that can be contemplated, but, having considered the cases and the law, this court is quite clear that the direction of Judge Aarvold in this case cannot be criticised. Indeed, it might well have been made with the passage in Foster’s Crown Cases (3rd Edn.) (1792) at p. 369 in mind, because there the learned author says:

‘If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly committeth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation.’

The converse of course is that, if the principal does not totally and substantially vary the advice or the help and does not wilfully and knowingly commit a different form of felony altogether, the man who has advised or helped, aided or abetted, will be guilty as an accessory before the fact.

Judge Aarvold in this case, in the passages to which I have referred, makes it clear that there must be not merely suspicion but knowledge that a crime of the type in question was intended, and that the equipment was bought with that in view. In his reference to the felony of the type intended it was, as he states, the felony of breaking and entering premises and the stealing of property from those premises. The court can see nothing wrong in that direction.”

The trial judge in the present case said this of the application of the above principles in R v Bainbridge:

“Their involvement is by virtue of S. 7 of the Criminal Code as aiding and abetting by supplying a pistol to persons they knew were going to use the pistol in a robbery or robberies. The fact that they may not have known the exact details of the time and place of the robbery or robberies does not matter as the principles are quite clear. It is well established in authorities that it is enough if a person supplies items or materials in order that a crime of a particular kind can be committed but without knowing the details of the crime. See R v Bainbridge 1959 3 AER 200 Court of Criminal Appeal.”

In the past, the National and Supreme Courts have considered the application of S. 7 (b) & (c) (aiding and abetting) in the context of persons being present at the scene of the offence and offering actual assistance to the principal offenders: See The State v Laiam Kiala & Mesiri Gomosi [1977] PNGLR 470; Agirru Aieni & 12 Ors v Paul T Tahain [1978] PNGLR 37; The State v- John Badi Woli and Pengas Rakom [1978] PNGLR 51; Porewa Wani v The State [1979] PNGLR 593; and R v William Taupa Tararula [1973] PNGLR 140. All these cases have little or no application to the facts of the present case.

The only case which we can find which might shed some light is the pre-independence Supreme Court case of R v Umarum [1969-70] PNGLR 190. In that case, an accused person who was not present at the scene of the killing by two other persons gave his consent, according to local custom, to one of the persons to kill the deceased. His consent permitted the killing. It was held by Clarkson J that mere consent or acquiescence does not amount to an encouragement to kill. It was also held that mere prior knowledge of what is intended in itself was not enough to bring the accused within S. 7 (b) (aiding and abetting).

We are of the view that the principles set out in R v Bainbridge is sound law and were correctly adopted and applied by the trial judge to the facts of the present case. We agree with the trial judge that on the evidence, it was safe for him to find that:

1. The two Appellants knew that the gun was required to be used by these persons to commit certain robberies, that some money or goods were to be obtained in the process of the robbery and that they would be given a portion of the proceeds of the robbery in payment for the use of the pistol.

2. These persons committed several robberies using this pistol and one of them was the robbery of the Spirit of West New Britain Co. store. In return for the pistol, the two Appellants were given portions of the proceeds of this robbery.

In these circumstances, “it is unnecessary that knowledge of the intention to commit the ‘particular crime’...namely, on a particular date and particular premises” should be shown by the prosecution. It is sufficient that a crime of a particular kind was intended namely, robbery of a person involving actual or threatened violence using the pistol, which involved the obtaining of property in the form of money or valuable goods. It was unnecessary for the State to show that the Appellants at the time they gave the pistol specifically intended that these persons would rob the Spirit of West New Britain Co store on the 12th of April 1995 at the particular time. In any case, the Appellants received part of the proceeds of several robberies committed using the same pistol including the robbery of Spirit of West New Britain Co store and it was open for the trial judge to find that the Appellants aided the commission of the robbery of Spirit of West New Britain Co store.

For these reasons, we dismissed the appeal against conviction.

Appellant in person

Lawyer for the Respondent: Public Prosecutor