Saka v The State [2003] PGSC 18; SC719 (2 October 2003)

SC719

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW 43 OF 2001

Between

ABRAHAM SAKA
Appellant

And

THE STATE
Respondent

Waigani: Injia, DCJ
Jalina J
Gavara-Nanu J

2003: 30th September
2nd October

CRIMINAL LAW – Evidence – Circumstantial evidence in accused admitting to meeting actual perpetrators of the crime and seeing dangerous weapons in their possession - No further contact with perpetrators – Whether accused party to the crime – Inference to be drawn.

CRIMINAL LAW – Evidence – Evidence of accomplices – Accused’s name and part he played mentioned in confessional statement and record of interview of accomplices – Failure by Police to put to accused allegations by accomplices during his record of interview – Needed for trial judge to warn himself of danger of convicting on evidence of accomplices – Whether conviction unsafe and unsatisfactory.

Cases Cited:
Paulus Pawa v The State [1981] PNGLR 498
The State –v- Nataembo Wanu [1977] PNGLR 152
The State –v- Titeva Fineko [1978] PNGLR 262
The State –v- Amoko – Amoko [1981] PNGLR 373
The State –v- Francis Laumadava [1994] PNGLR 291

Counsel:
Appellant in Person
D Mark for the Respondent

2nd October 2003

BY THE COURT: The Appellant and two others were convicted on 4th July 2001, following a trial for armed robbery of the Papua New Guinea Banking Corporation, Tabubil branch on 22nd July 1998. The Appellant appears to have been the only one who has appealed against his conviction.

The issue at trial was whether or not the appellant and those with whom he was charged were perpetrators of the crime. There was no dispute that direct evidence from someone identifying or recognizing any of the accuseds at the scene of the crime was lacking. So a major part of the evidence for the State which comprised statements and exhibits were tendered by consent of Defence Counsel. Even those who gave oral evidence did not identify the Appellant and his co-accuseds. Those witnesses merely gave evidence of what took place immediately prior to, during and after the robbery.

The State case was primarily founded on the accuseds’ purported confession or admission in their records of interview or confessional statements which were admitted by the Court into evidence after a voir dire. The State case was therefore based on circumstantial evidence through their admissions made by David Sanduwa and Terence Yara in their respective records of interview and confessional statements.

The Law on circumstantial evidence is as determined by this Court in Paulus Pawa v The State [1981] PNGLR 498, where it was held that where the evidence in a criminal case is wholly circumstantial, the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused.

The alleged involvement of the Appellant in the commission of the crime was based on his explanation in his record of interview about meeting the strangers who arrived at Tabubil on the flight from Port Moresby and his co-accused, Terence Yara’s, confessional statement where his name is mentioned.

In the record of interview, the Appellant explained to Police that he did assist some strangers with transport from the airport at Tabubil after he was introduced to them by a Susan who had travelled on the same flight from Port Moresby as they had no transport. He left them with their luggage in the laundry under his house. He then returned the vehicle he had borrowed to its owner and returned to work. He had borrowed the vehicle to pick up some vegetables and betelnuts that his wife was supposed to have sent from Port Moresby but they did not arrive. When he returned to his house in the evening, he saw dismantled parts of firearms in a box. He did not report that to the Police or anyone else. The next day the strangers left his house. As pointed out by Mr Mark during submissions before us, the robbery took place four (4) days after the strangers he had assisted left his house.

As to the discovery of radio cassettes which had the name "Abbey" in the pockets of those who were allegedly involved in the robbery who were shot dead by Police which, he explained in his record of interview that they belonged to his son and that the robbers could have picked them up during the night they spent at his house after they arrived from Port Moresby.

So the allegations against him of being involved in the commission of the crime were merely on the basis that he met the strangers at the airport at Tabubil, accommodated them at his house where he saw firearms and also the radio cassettes bearing the name ‘Abbey" were discovered in the pockets of some of the robbers who were shot dead by the Police.

It appears to us that the learned trial judge placed too much emphasis on the confessional statement of Terence Yara and the answers in the record of interview given by David Sanduwa and the Appellant as is apparent from p. 560 line 35 to p. 562 line 12 of the Appeal Book. In fact the conviction of the Appellant appears to have been solely on the basis of his record of interview and the confessional statement of his co-accuseds where his name was mentioned. But the fact was that the admission to actually taking part in the robbery were made by Terence Yara and David Sanduwa and not by the Appellant. The Appellant made no admissions in his record of interview.

The Appellant’s admission, as we have pointed out earlier, was to assisting the strangers to his house, accommodating them over night as well as seeing the dismantled firearms in a box. There was no evidence that he saw the robbers and collaborated with them between the time they left his house and the time of the robbery. With such a break in the conduct of the Appellant between the time he met the persons who later turned out to be robbers and the actual robbery which took place four days later, we consider that the Appellant’s involvement in the commission of the crime was not the only rational inference open to the learned trial judge. On the evidence that was before the learned trial judge, it was also open to him to find that the Appellant desisted from further dealings with those who had arrived at Tabubil from Port Moresby and as such he could not have been involved in the commission of the crime.

There are also other aspects about Terence Yara’s confessional statement that needs to be pointed out. Firstly, a large part of his so called confessional statement has been deleted. No explanation has been given for such deletion. There is no mention of the Appellant being actively involved in the planning and execution of the robbery.

Secondly, what Terence Yara said were not put to the Appellant by the Police when they interviewed him so he has not been accorded an opportunity to refute the allegations against him. The same can be said of David Sanduwa’s confession in the record of interview. So without an opportunity having been given to the Appellant to refute what David Sanduwa and Terence Yara said about his involvement in the whole episode, can their confessional statement in all fairness be held against the Appellant? We, with respect, do not consider that it can lawfully be done.

There is another aspect that renders the conviction of the Appellant unsafe. That is that, nowhere in the admission by David Sanduwa in the record of interview and Terence Yara in his confessional statement is it shown that the Appellant took part in the actual robbery. They only mentioned him as having taken part in the planning. Such statements, it should be noted, were made by accomplices.

It is well settled in this jurisdiction that it is dangerous to convict on an uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself. See The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373. This was reaffirmed not so long ago in The State –v- Francis Laumadava [1994] PNGLR 291 by Injia J (as he then was) who said at p. 299:

"I must warn myself as to the dangers of accepting Mr Kilileu’s evidence in these circumstances. There is a likelihood that one accomplice may fabricate or concoct evidence against another accomplice, either to get even or to seek to exonerate himself by casting the entire blame on the other person. It is an established rule of practice that I must warn myself that it is dangerous to convict unless the accomplice’s evidence is corroborated by other witnesses".

We, with respect, endorse His Honour’s views in Laumadava’s case as a correct statement on the law relating to evidence of accomplices.

So applying that law to the case before us, we are of the view that Terence Yara and David Sanduwa were clearly accomplices by virtue of their being co-accuseds to the Appellant during trial which no doubt required the learned trial judge to warn himself of the dangers of convicting the appellant on their evidence as there was no evidence from other witnesses regarding the involvement of the Appellant in the commission of the crime. There is nothing in the judgement of the learned trial judge indicating that he so warned himself of such danger. Such a failure should, in our respectful opinion, render the conviction of the Appellant a nullity.

From the nature of the evidence before the trial judge coupled with his failure to comply with well settled legal principles relating to evidence of accomplices, we are of the opinion that the conviction of the Appellant was unsafe and unsatisfactory. We accordingly allow the appeal and quash the conviction of the appellant. We further order that he be discharged from custody forthwith.
________________________________________________________________________
Appellant in Person
Lawyer for the Respondent: Public Prosecutor