Maury v The State [2001] PGSC 16; SC668 (20 July 2001)

SC668

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 55 of 2000

VAII ROCKY MAURY
-Appellant-

V

THE STATE
- Respondent-

WAIGANI: INJIA, SAWONG, KANDAKASI, JJ.
2001: 25 APRIL
: 20 JULY

APPEAL – Appeal against conviction - Appellant obliged to show identifiable error to allow interference of trial judge’s finding – No identifiable error demonstrated – Appeal dismissed

EVIDENCE – Circumstantial evidence – Appellant present in a stolen vehicle used to commit other offences and sustain injuries from gun shot injuries from a gunfire exchanged with police - Only inference reasonably open on available primary facts point to guilt of the appellant – No error in trial judge finding the appellant guilty – Appeal against conviction dismissed

Cases Cited

Regina v. William Taupa Tovarula & Ors [1973] PNGLR 140

R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534

Porewa Wani v. The State [1979] PNGLR 592

Paulus Pawa v. The State [1981] PNGLR 498

The State v. Tom Morris [1981] PNGLR 493

Garitau Bonu & Rosanna Bonu v. The State (1997) SC528
Ian Napoleon Setep v. The State (unreported and unnumbered judgement delivered on 18th May 2001) SCRA No. 42 of 2000

Counsels
Mr. F. Pitpit for the Appellant
Mr. R. Auka for the Respondent

20th July, 2001

BY THE COURT: The appellant lodged an appeal against both his conviction and sentence on one count each of unlawful use of a motor vehicle, armed robbery and unlawful wounding. But he abandoned his appeal against sentence at the hearing of the appeal. In relation to conviction, he contends that there was no direct evidence connecting him to the commission of the offence for which he was found guilty and convicted and sentenced. The State argues that although there was no direct evidence of the appellant committing the offences, there was sufficient evidence to find the appellant guilty and convict him. Thus the learned trial judge did not err in his judgement.

The issue before us is therefore, whether the trial judge erred in finding the appellant guilty when there was no evidence directly connecting him to the commission of the offences. This issue can be determined by looking at the evidence that was presented before the National Court and what use the Court was entitled to make out of them.

The facts are not in dispute. On the afternoon of the 1st of October 1998, a motor vehicle described as a Toyota 4 Runner, Registration Number BAF 433 was stolen at gunpoint from a Julie Giheno by three armed men. One of the three men was identified as Petrus Oa, the appellant’s co-accused. The numberplate on the stolen vehicle was then changed and used without the owner’s consent.

On the morning of the next day, the vehicle was used to commit an arm robbery at the Jasmire Supermarket. The vehicle was then used as a get away vehicle but police were able to catch up with the robbers with the vehicle. Before the police could arrest the robbers, an exchange of gunshots took place between the police and the occupants of the vehicle.

The gun shoot out resulted in injuries to a policemen who was trying to stop the vehicle from getting away after having committed the robbery at the Jasmire Supermarket. The appellant sustained a gunshot injury to one of his legs. Eventually the police overpowered the robbers and arrested some of them. The appellant was one of the persons arrested and charged.

None of the State witnesses identified the accused as being involved in the offences. There was no evidence directly connecting the appellant to the commission of each of the offences. The only direct evidence against him was his statement in the record of interview. The record of interview was part of the State’s evidence admitted with the consent of the appellant.

In his record of interview the appellant stated that he got into the vehicle after stopping it at around the Timothy Store. He says he does not know the driver or any of its occupants. Despite that, they were able to stop for him, who was by that time, very drunk. After the vehicle had stopped for him, he says he asked the driver which way he was going and the driver told him that he was heading for the Manu Auto Port. The appellant then says he asked if he could be given a lift to Manu Auto Port and he was allowed into the vehicle. The appellant says he did not know at that time that, the vehicle was stolen and that it was going to be used for the robbery of Jasmire Supermarket. He says he was not a party to the commission of the robbery at the Jasmire Supermarket and the subsequent exchange of gunfire with the police. He claims he was at the relevant time sleeping because of drinking beer the whole night and only woke up at the sound of gunfire and after receiving a gunshot injury to one of his legs from which he was bleeding. When he woke up he says he saw a highlands man was shooting at a police vehicle.

However this question and answer in his record of interview runs contrary to what he says earlier and we quote:

Q.27

"Next day the four of you drove to East Boroko and robbed the Manager of Jasmire Supermarket of a tin box containing cash money and then escape towards Lahara Avenue and were confronted by police and at that time exchange fire with police and shot the police vehicle and wounded a policeman is that correct? Ans. Yes."

Based on the above evidence, the story appears to be this. On the 1st of October 1998, Julie Gehino’s vehicle, a Toyota 4 Runner was stolen at gunpoint by three armed men. One of the armed man was the appellant’s co-accused, Petrus Oa. The numberplate of that vehicle was changed to a different one and the vehicle was subsequently used to commit an arm robbery at the Jasmire Supermarket. After the robbery the robbers then tried to escape in the stolen vehicle when they were caught up by police and an exchange of gunfire ensued. The appellant was in the vehicle both at the time of the robbery of the Jasmire Supermarket and at the time of exchanging gunfire with the police. That was immediately after the robbery at Jamsmire Supermarket. The exchange of gunfire resulted in injuries to a policeman. It also resulted in juries to one of the appellant’s leg.

The question that needs to be asked is this. Did the undisputed facts support a finding that the appellant was in fact involved in the commission of the offences he was charged with?

The learned trial judge addressed that issue in this manner at page 152 of the transcript:

"The presence of Rocky in Toyota 4 Runner when the vehicle was used before the robbery, during the robbery and exchange of gun shots with the police along Lahara Avenue subsequent to the robbery cannot be disputed. Indeed he raised no issue. The issue is whether he was a participant in all these, directly or as principal under section 7 of the Code."

Then the learned trial judge restated what the appellant said in his record of interview and found as follows:

"What he has said is too good to be of any value. First of all, he had to be best friends of the people in the vehicle in order to stop for him. There was no protest when they did not stop for him to get out. There was little to no protest at the robbery scene. Despite the excitement, he dozed off to sleep then he woke up when he heard gunshot, one of which injured his leg.

I disbelieve him. His presence was not accidental. The State’s evidence proved that this was not a fun trip, but properly planned and they all participated in all these activities. As to the injury caused to the constable, it was done to save the whole group from arrest."

It is a well accepted principle of law that a person’s presence at and or during the commission of an offence whether actually lending an hand to the commission of an offence or not can be made a principal offender of a crime as much as the principal. Minogue CJ in Regina v. William Taupa Tovarula & Ors [1973] PNGLR 140 at page 198 expressed that principle in these words:

"The cases show that "the fact that a person was voluntarily or purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do or at least to express his dissent, might under some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted." The words are those of Hawkins J. in R. v. Coney [(1882) [1882] UKLawRpKQB 30; 8 Q.B.D. 534, at pp. 539-540]. The same idea finds expression by several of the other Judges who formed the majority of the Court in that case and also by the Court in R. v. Clarkson [[1971] 1 W.L.R. 1402, at p. 1406]. To the same effect also spoke Cussen A.C.J. in R. v. Russell [[1933] V.R. 59] when he said at p. 68: "If a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission he is guilty as a principal." Presence at the commission of a crime may in the circumstances show assent or encouragement to its commission."

Legislative expression of that position is in sections 7 and 8 of the Criminal Code. These provisions read:

"7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

8. Offences committed in prosecution of common purpose.

Where-

(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence."

The law is also settled that, the mere presence of a person at the scene of a crime is not sufficient to infer any criminal responsibility. There must be both presence and a wilful or intentional encouragement for the commission of the offence. The principle is set out in the well known and prize-fight case of R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534, at p. 557, Hawkins J. said:

"In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not."

This principle has been applied in many cases both abroad and in Papua New Guinea. An example of that in our jurisdiction is the Supreme Court decision in Porewa Wani v. The State [1979] PNGLR 592 at p. 597.

Further, the law also allows in appropriate cases for convictions to stand even where there is no direct evidence connecting an accused person to the commission of an offence if the circumstances of the case dictate an inference only of the guilt of the accused beyond any reasonable doubt. This is the principle that is usually applied in a case where the State’s case is entirely circumstantial. The case of Paulus Pawa v. The State (supra) at p. 501, per Andrew J quoting Miles J. in The State v. Tom Morris [1981] PNGLR 493 at p. 495 spells out the law in these terms:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen ((1975) [1975] HCA 42; 50 A.L.J.R. 108 at p. 117):

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen [1963] HCA 44; (1963), 110 C.L.R. 234, at p. 252; see also Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584, at pp. 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’: Peacock v. The Queen at p. 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions, [1973] 1 W.L.R. 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense’."

These principle has been adopted and applied in many cases and is still good law in our country. An example of that is the case of Garitau Bonu & Rosanna Bonu v. The State (1997) SC528. That was a case of murder resting on circumstantial evidence. There was no evidence linking the appellants to the murder of the deceased. There was however, evidence of the fatally stabbed and wounded body of the deceased found in the appellant’s house. There was some evidence of some attempts being made by them to give medical attention to the deceased prior to seeking help from the neighbours. The appellants made no admission either to the Police during their record of interview or at the time of their arrest or to anyone else. In their record of interviews they both declined to offer any explanation or say anything and they both declined to give evidence at the trial. There was therefore, no explanation from them as to how, when or why the deceased was found in their house and bleeding heavily with stab wounds to his body. The National Court found them guilty and the Supreme Court on appeal confirmed the verdict and conviction.

The above cases particularly the case of Gari Tau Bonu and Rossana Bonu –v- The State (supra) make it clear that, whether an accused person should be found guilt or acquitted of the charge based entirely on circumstantial evidence is a matter of commonsense approach. In other words, the court is entitled to draw reasonable inferences as commonsense may dictate as to the guilt or innocence of an accused person.

The question in the present case is, did the facts support an inference of guilt against the appellant beyond any reasonable doubt and that was the only inference open to the learned trial judge.

There is no evidence of what exactly the appellant did apart from his presence in the vehicle. He got into a vehicle that was stolen the previous day by three men one of which was the appellant’s co-accused. The appellant claims he did not know about this fact. A person he did not know but stoped for him and drove the vehicle. It was then driven to Jasmire Supermarket and was use to rob and get away from the scene. At no stage, the appellant tried to disassociate himself from the robbers or those who were using the stolen vehicle. There was an exchange of gunfire between the police and those in the vehicle. The appellant gave no evidence of not being aware of the presence of any gun both during the robbery at Jasmire Supermarket and the whole time he was in the vehicle both before the shot out with the police to get away after the robbery and after the robbery.

The approach taken by the trial judge in weighing and making findings of fact and drawing inferences from the only evidence of the accused in the form of the accused’s statements in the record of interview, in our view, was not improper. We fail to see how the learned trial judge could have erred in that approached. The undisputed facts gives us the clear impression that, those who were in the vehicle had come with a plan to carry out a robbery and escape in a stolen vehicle. They were armed with guns and were prepared to use them to get away after the robbery. Given that, it was not possible and indeed common sense dictates that the appellant could not have been picked up in the way he describes.

Robbers in most cases act with people who have set out to commit such an offence together. They do not normally take on other and innocent people unless abducted or otherwise taken against their will. There is no evidence of that being the case for the appellant. Robbers also do not prefer taking potential witnesses along for fear of being caught by police and charged on their evidence. In some cases, potential witnesses get killed or are threatened. Non of these was the case of the appellant. Further, it is hard to imagine how the appellant could sleep without knowing what was happening including, the exchange of gunshot between the police and the gang he was with. If indeed he was an innocent third party, he could have been taken as a human shield in the gunshot exchange with the police or something like that but the evidence does not go that far.

Simply put, the appellant’s explanation to police per the record of interview defies any logic or common sense. The only inference open to the trial judge was that, the appellant was a willing participant in the commission of the offences for which he was charged and convicted. Hence, he was correctly found guilty and convicted of the offences he now complains of.

The appellant tried to explain away any inference of criminal responsibility against him based on the undisputed facts by saying what he said in his record of interview. Although, the appellant chose not to go into evidence, his explanation was in evidence as part of the State’s case without any objection from him. Of course, no adverse inference could be drawn from the appellant’s failure to go into evidence in his defence. Nevertheless, his failure, left the court with no choice but to consider the evidence that was before him, and draw whatever inferences that were reasonably available on those facts and treat them as unrebutted: see Paulus Pawa v. The State [1981] PNGLR 498 at p. 506.

As this Court recently said in Ian Napoleon Setep v. The State (unreported and unnumbered judgement delivered on 18th May 2001) SCRA No. 42 of 2000 at p. 7, it is settled law that, this Court will not readily interfere with the trial court’s finding unless it is satisfied that the learned trial judge fell into some demonstrable error which has the effect of vitiating the trial judge’s discretion. In the present case, the appellant has not demonstrated any demonstrable error warranting this Court’s interference of the learned trial judge’s judgement and reasons for judgement. We instead find that the learned trial judge was correct in arriving at the decision in the way that he did. Hence we find the appeal is without merit and it should be dismissed. Accordingly we dismiss the appeal and confirm the convictions and sentences of the National Court.
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Lawyers for the Appellant: Appellant in person
Lawyers for the Respondent: Public Prosecutor