Barnabas, Wolwolit and Sela v The State [1998] PGSC 15; SC549 (30 April 1998)

Unreported Supreme Court Decisions

SC549

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 52 OF 1996

SCRA 53 OF 1996

SCRA 50 OF 1996
BELEMPIM BARNABAS, BRUNO WOLWOLIT, MICHAEL SELA - APPELLANTS
V
THE STATE - RESPONDENT

Wewak

Woods Jalina Kirriwom JJ
29-30 April 1998

CRIMINAL APPEALS - village robbery raids - evidence - admissibility of records of interview - evidence of self-confessed accomplice - identification.

SENTENCE - trial - 6 years on each count - 2 counts - cumulative - totality still very lenient in circumstances.

Appeals dismissed.

Counsel

P Harricknen for appellant Michael Sela

Belempim Barnabas & Bruno Wolwolit in person

P Mogish for the State

30 April 1998

WOODS JALINA KIRRIWOM JJ: The appellants were on the 15th August 1996 convicted on two counts of robbery with actual violence contrary to Section 386 of the Criminal Code following a trial. On the 16th August 1996 they were each sentenced to 6 years IHL on each count the sentences to be served cumulatively. Each appellant has appealed against the conviction and sentence. Because of the fact that they were tried and convicted as co-accused and therefore it was the same trial we have heard the three appeals together.

Generally they each raise the same grounds of appeal. Firstly that the trial judge erred in admitting the records of interview of the appellants Bruno and Belempim and relying on these records against co-accused; secondly the trial judge accepted the evidence of a self-confessed accomplice without any credible independent evidence; generally the convictions were unsafe and unsatisfactory considering the paucity of the evidence. They have also appealed against the totality of the cumulative sentences.

The circumstances of the robberies was two consecutive raids by armed gangs of criminals posing as police on two villages some distance apart. The evidence before the trial judge comprised the following.

Firstly the evidence of some of the villagers who were the victims of the armed night raids. Some of these witnesses clearly identify the accused Belempim even though it was at night. The trial judge was clearly satisfied on this evidence of identification of this accused in spite of the difficulties at night. These witnesses of course clearly outline the nature of the robbery raids so there is no doubt that such incredible robberies did happen.

Secondly the evidence of an accomplice Tony Kawa who apparently gave himself up to some pastors after being on the run who went with him to give himself up to the police. When asked why he co-operated with the police he said, AB page 170, “They did not force me, I want to give up this bad behaviour” and “I had nowhere else to go, and changed my life and I came back”.

The law is quite clear that whilst accomplices are competent witnesses and are allowed to give evidence their evidence must be accepted with great caution. The trial judge did note this when he said, AB p 214, “After considering his (Tony Kausan) evidence thoroughly against other evidence, and the fact that, he could be an accomplice, where corroboration is required, I am unable to find any substantial reasons to doubt his evidence. I accept the witness to be truthful and his evidence reliable.” Tony gave a full and detailed story of what happened that night and how the raids on the villages were conducted and who was involved and he clearly named and identified the three appellants as part of the group. Then there were the admissions made in the records of interviews conducted with the appellants Belempim and Bruno which named all appellants. These admission of the records of interview were objected to by the appellants however the trial judge conducted a voire dire on their admissibility and following the voire dire he noted the difficulty in sifting through and weighing up all the evidence and deciding what version is worthy of belief. So it was quite clear that the trial judge was very careful in his assessment of the evidence on the voire dire and his assessment on whom to believe. At the end of it all he admitted the interviews into evidence and we find no fault with the trial judges consideration of the law and assessment of the evidence.

So following the acceptance of all the above evidence the trial judge was satisfied beyond a reasonable doubt of the involvement and thus guilt of the three appellants in the two robberies.

On the grounds of appeal. It was firstly suggested that the appellant Michael Sela should have had and wanted to seek a separate trial however in Papua New Guinea where there is no jury trial there must be exceptional reasons for split trials of co-accused in a common enterprise. Anyway there is nothing in the transcript to suggest a formal request was made and refused. We would find that on the evidence before the trial judge there was nothing exceptional that would have necessitated a separate trial. Whilst there were differences in the way the appellants were identified as being involved all the evidence was competently assessed by the trial judge.

On the admissions of the records of interviews we have already indicated that we have found no errors by the trial judge in his consideration of the law on the admissibility of confessions following a lengthy voire dire exercise.

With respect to the submissions that the trial judge erred in accepting the evidence of a self-confessed accomplice we note that there appeared to be some misunderstanding by the appellants as to the way his evidence came in during the trial. They thought that his evidence was allowed after the State had closed its case. This misunderstood the order of the trial when a voire dire was interposed. What happened was the evidence of the admissions made by the accused was dealt with during the State case and at the end of the voire dire when the State resumed its case then it brought this witness. There was nothing irregular in the order of witnesses. On the weight to be attached to the evidence of Tony Kausan we are satisfied that the trial judge was entitled to accept his evidence, it was detailed and complete enough and the trial judge was entitled to find that he was a witness of truth. It seems to be getting to the stage in this country that with the amount of lawlessness and general lack of support from the communities themselves when such public crimes happen and the apparent reluctance of people because of village or clan pressure to come forward that the State needs the evidence of such people to investigate crime. It is not as if these robberies are such secret incidents, they did happen and they involve a lot of people and many people must know all about them and it is interesting to note that no-one came and assisted the denials of the appellants. We are satisfied that the trial judge made no errors in his consideration of the evidence of the self-confessed accomplice and was entitled to accept his evidence as the truth and act upon it.

On the assessment of the evidence and the sufficiency of the evidence generally we are satisfied that the trial judge made no errors. The trial judge was quite entitled to accept the identification of Belempim from the victims even under the conditions at night. And then by adding together all the other evidence of identification he found he had sufficient evidence to be satisfied beyond a reasonable doubt of the involvement of the three appellants in the robberies that night.

We find no errors by the trial judge on the conviction of the three appellants for the two robberies.

On the sentence we note that the appellants were each sentenced to 6 years for each count and these sentences were made cumulative making a totality of 12 years. We find that a sentence of 6 years for robbery following a trial when the section of the Criminal Code provides for a punishment up to life imprisonment to be a very lenient base sentence. Actually with the current trend in the country and the increasing disrespect for the law and people’s rights and privacy we feel that the starting point for such a crime as a robbery raid on a village at night should be 10 years or even higher. Such a robbery raid is an attack on a citizen’s last place of safety and refuge, after that what does a person have for security. We are surprised that the Public Prosecutor has not sought a higher base sentence. So then when a person does two such raids on two separate villages we fully agree with cumulative sentences where the base sentence has been so low. The totality of 12 years here is very light considering the nature of the crimes. We will not interfere with the cumulative order on the sentences.

We dismiss the appeals against the convictions and sentences and confirm the sentences of the trial judge.