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State v Uraken and Joku [1990] PGNC 38; N883 (25 June 1990)

Unreported National Court Decisions

N883

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
SIMON SULU URAKEN
AND
JACK CHARLES JOKU

Waigani

Jalina AJ
14-31 May 1990
25 June 1990

CRIMINAL LAW - Evidence - Robbery - Of bank - By six armed men - In stolen vehicle - Six men caught subsequently - In possession of vehicle arms and stolen money - No proper explanation at first opportunity - Subsequent explanation - Incredible to believe - Circumstantial case - Inference to be drawn.

Cases Cited:

The following cases are cited in the judgment.

Paulus Pawa v The State [1981] PNGLR 498.

The State v Peter Noki Manda and William Henry Langer N805.

The State v Lindsay Yaboshiwa N 818.

Counsel:

M Unagui, for the State.

F Pitpit, for Simon Uraken.

M Enda, for Jack Joku.

Cur adv vult

25 June 1990

JALINA AJ: The accuseds are charged with the following counts:

1st Count:

Simon Sulu Uraken of Aiome in Madang Province and Jack Charles Joku of Sentani in Irian Jaya are charged that theysaid Simon Sulu Uraken and the said Jack Charles Joku on thon the 18th day of October 1989 in Papua New Guinea stole from Westpac Bank (PNG) Limited, with threat of actual violence, Seventeen Thousand, Six Hundred and Fifty-eight Kina (K17,658.00) in cash, the property of the said Westpac Bank (PNG) Limited. And at this time the said Simon Sulu Uraken and the said Jack Charles Joku were armed with dangerous weapons, namely, two firearms and two bushknives.

At the conclusion of the evidence I ordered the indictment amended to one which charged the accuseds with stealing an unspecified sum of money as there was no evidence of the actual amount stolen.

2nd Count:

And-Further that they the said Simon Sulu Uraken and the said Jack Charles Joku on the 18th day of October 1989 in Papua New Guinea, unlawfully used a motor vehicle, namely, a Ford Fairmont Sedan Reg. No. AFP 390 without the consent of the owner, one Monica Salter.

They have pleaded not guilty to the charges.

THE ALLEGATIONS

The State has alleged that on the 18 October 1989 the accuseds went to the Westpac Bank Agency at PSA Haus with four others between 9.30 and 10.00 am. When they entered the Bank they wore masks and were armed with two firearms namely a rifle and a pistol and two bushknives. There they threatened the Bank staff with the firearms and bushknives and stole the sum of K17,658.00 kina in cash. It was alleged that the money was taken from the tellers’ draws and the safe and were put into two separate handbags and then they made their getaway by the use of a motor vehicle. The State further alleged that the vehicle was the one which was stolen the previous day and was used without the consent of its owner, Monica Salter. The State alleged that later on the same day the accuseds were arrested by the police after a chase.

THE EVIDENCE

In addition to the records of the interview with the two accuseds which were tendered by the State by consent of the accuseds through their respective defence counsel, the State sought to prove its case by calling nine (9) witnesses who gave evidence orally on oath. I will deal with the records of interview later. The evidence adduced by the State is that on 18 October 1989 at about 9.15 am one Zachary Song, a Police Constable attached to the Traffic Police at Boroko and Constable Tumap and Harry Samoa stopped at Marianville High School and held a mini road block. The road block ended at about 9.45 am and they left and drove up to Sogeri National High School intending to pick up a suspect of a minor motor vehicle accident. After talking to the suspect who was a lecturer at Sogeri National High School they intended to return to the City and as they were pulling out Constable Harry Samoa, who was new to the place, asked where the road led to so they drove to a store and as they were pulling up in front of the store Constable Song sighted a Ford Falcon Sedan, white in colour, with tinted glass. The Registration No. was AFB 952 and he suspected it to have been stolen. As he stopped near the vehicle he noticed that the glass was being wound up and that the driver had big hair with beard and was wearing a small straw hat. There was another one who came in from the shop with the plastic bag in his hand and hopped into the vehicle. The person he noticed was the accused Jack Charles Joku. The vehicle then took off and made a U turn in front of them. He also made a U turn and followed the vehicle. He did not have a watch and therefore he could not tell what time it was but it must have been about 10.30 am. As he followed the vehicle he asked Constable Tumap to contact their operations room at Boroko and find out if that vehicle was stolen. It was confirmed that the vehicle was stolen the day earlier and that that morning the vehicle was used in a bank robbery. They followed the vehicle however they lost sight of it as it was travelling at high speed. As they approached 14 mile at Ilimo Farm they heard over the police radio that the vehicle they were after had been sighted by another traffic police vehicle at 9 mile. And when they came down they found the vehicle abandoned at the end of Jacksons Airport. There were many policemen and police vehicles there.

The two accuseds and four others were caught by police when they stopped the vehicle under the rain trees at the end of Jackson’s Airport and tried to flee from the vehicle. At the time the suspects were caught two bags full of money in cash were taken from one of them and later a search was made and a .22 rifle and a .32 pistol were found. Searches were made also of the accuseds and on the accused Simon Sulu Uraken Constable Toge Bou said that he found a University of PNG ID card but that card has not been tendered in court. Constable Kasil Kerenge looked at the registration label on the front windscreen of the vehicle and found its correct registration as AFP 390. The accused Simon Sulu Uraken has denied that he was a University of Papua New Guinea student at the time. After the suspects were caught they were taken to the Waigani Police Station where statements were taken from them. Record of interviews were conducted with some of them. All the police witnesses denied assaulting the accuseds badly and rendering them unconscious.

Evidence of the robbery has been given through the statement of Warren Mungau, a Bank Clerk at the Westpac Bank, Waigani, which has been tendered by consent of defence counsel. Warren Mungau said that on the morning of Wednesday 18 October 1989 he was working at Westpac Bank at PSA Haus Waigani. At about 9.00 am they opened up for business and his counterparts and him were doing their banking duties and at about 9.30 am six masked men armed with two bushknives and two guns walked into the Bank and held them up. They ordered him and the others and three (3) customers to lie on the floor while one of them forced the first officer with the knife pointed at his neck and forced him to open the safe. All the cash notes were in the draws. He could not do anything neither the security men because they each had a masked man on them so they stood helplessly. The thieves left the office about 2 1/2 minutes after they got the money. They went and drove off in a white Ford Falcon Sedan Registration No.AFB952. Mr Mungau’s evidence is the only evidence from the Bank. Thus the prosecution has proved that there was a robbery at the bank and that moneys were stolen in two (2) bags. There is no evidence from this witness by his description or otherwise as to identification of the persons who took part in that robbery as they were wearing masks. There is no evidence also as to the type and colour of any clothes the robbers were wearing at the time of the robbery.

The State sought to prove the second count through Monica Salter. She said that she is the owner of a white Ford Falcon Sedan Registration No. AFP390. She said that at about 5.30 on the afternoon of 17 October 1989 she left her shop at Ori Lavi House and went out to get into her car which was parked in front outside. She opened the door and sat in the driver’s seat. As she was about to shut the door one of the rascals appeared at her door and grabbed her by her hand which had the keys. He quitely asked her to hand over the car keys and for her to move further into the car. While he was saying that she turned to the right, kicked the door which hit the rascal at her side and bolted out of the car screaming and ran between her car and the one park next to hers.

One of the rascals ran after her trying to catch her but luckily she was quick and was able to get away from him.

There were four rascals. Two were by her door and two were on the other side. She ran upstairs, went into the shop and rang the police and reported that her car had been stolen by the rascals. There were a number of items in the car at the time it was stolen but I do not consider those things are relevant to the second count as the second count only relates to the unlawful use of the motor vehicle. About two to three days later she saw her car at Waigani Police Station. She saw the car and recognised that it was her car as it had some of the things that she had bought although at the time she took possession of the car at Waigani Police Station she realised that the number plate had been changed from the actual number plate which is specified in the second count to a false number plate AFB 952. At the time they took the car from her outside the Ori Lavi House at Boroko she did not recognise any of them let alone the two accuseds. From her evidence it can be seen that there is no doubt that she did not consent to her vehicle being taken by those rascals and that it had been unlawfully used without her consent.

May I mention, in passing, that the second count does not relate to the stealing of the vehicle on 17th October but relates to the unlawful use of that vehicle without the consent of the owner on 18th October. It would therefore appear that identification of the persons who stole the vehicle from Mrs Salter is not relevant in my view. I will deal further with this later.

Much time was spent on cross-examination of policemen regarding the chase down from Sogeri and alleged assault on the accuseds after their apprehension. The fact that the accuseds were caught by the police is not in dispute.

After the close of the State case defence counsel made a no case submission which I rejected. The accuseds then decided to give evidence on oath and to call other evidence in their defence.

THE ACCUSED SIMON URAKEN

The accused Simon Sulu Uraken gave evidence that on 17 October 1989 he went to the University of Papua New Guinea to have lunch there and then returned to his uncle’s house at Gerehu Stage 5 where he stayed until early next morning, the 18th October. On cross-examination he said that he was given a meal ticket by his cousin Jackson Kas. When asked as to whether that normally happened between his cousin and him he replied that once in a while when he did not want to prepare his lunch he normally came to the campus to have his lunch. On 18 of October 1989 he said that he went to the Administrative College to see his cousin Uto. Upon discovering that noone was at Uto’s house he decided to walk to Waigani Shopping Center. On the way he met Uto and both of them then returned to Uto’s house, drank water, chewed betelnut and then he left Uto to go to 14 mile (Ilimo) to see Roti, his sister, as he wanted some money to buy himself a pair of shoes. Uto gave him K2.00 and he walked to Waigani Shopping Center where he bought a Pepsi and drank. Then he walked up to the bus stop near the police station at Waigani where he caught a PMV to Gordons. At Gordons he went to the market where he met up with June David a friend of his whom he had met through Outreach (a Christian Organisation) some years earlier. They wandered around at Gordons Market bought and ate fruit and then they went to the supermarket where they bought drinks and they drank. After that they came to the bus stop and Uraken caught a bus and left for 14 mile. It was about 11.30 a.m. At 14 mile he went and checked at the place where his sister worked but was told that his sister was still working so he came back to the main bus stop opposite the petrol station. While he was standing there he saw this white vehicle coming down from Bluff-Inn road stop beside him. Inside he saw Michael Sine Gola who told him to get in the vehicle so without rejecting he decided to jump in. He did not know that the vehicle was stolen until after he was arrested. He sat with Michael Sine at the back. On cross - examination he said that because his sister was working at the factory and he wanted to see her at lunch time he came to the bus stop at 14 mile. Although he went to see his sister for some money to buy a pair of shoes he did not wait for her outside the factory until she came out for lunch, but instead jumped in the car because Michael Sine was his best friend and for the sake of the car he jumped in.

He waited at the bus stop for 3 minutes before he was picked up and the actual pick-up took up 15 seconds - a very very quick pick-up. He did not enquire as to whose vehicle it was that Michael Sine was travelling in because Michael Sine was with the other guys and he knew it was the other guy’s vehicle. Michael Sine did not introduce him to the others but merely mentioned his name. He did not ask Michael Sine where they were coming from.

He said that he knew Michael Sine because both of them play in the opposing rugby teams as well as through some of Michael Sine’s cousins who play in the same team as him. He does not know Michael Sine apart from those types of association.

It is surprising that the accused and Michael Sine who play in opposing teams have become best of friends. It is understandable that if two persons played in the same team that they would become best of friends but very seldom otherwise.

When they were approaching the main junction of Hiritano Highway and Sogeri road there was an unmarked police vehicle from which a beer bottle was thrown at the windscreen and he was shocked to see it land on the windscreen. They drove further down towards Port Moresby and before they approached the junction to the gas turbine there were a number of police vehicles which were driving in the opposite direction, made U turn and followed them. When they were approaching the bridge at the end of the Airport they saw a marked police Toyota Land Cruiser parked on the right hand side of the road and a gunman shot directly at them and the bullet went in and out of both right and left windscreen and they ducked and the bullet missed them. As they went over the bridge there were more police vehicles going in the opposite direction. Their vehicle then came and stopped under the rain trees at the end of Jacksons Airport. Because the police had fired at them and because he has heard about police brutality in the past he decided to run away from the police rather than wait to find out what the police would do to him. He said that he went to the wildlife so that people out there could see him and witness him so that there would not be any police brutalities. He was caught by three (3) policemen when he was approaching the wildlife. The first one who gave evidence against him (i.e. Sepe Golu) searched him but could not find anything in his pocket. There was not even a UPNG ID card. Then the three (3) of them started punching him but he told them that he was now in the hands of the police and that could they please take him up to the police vehicle but they refused and started kicking him here and there. A policemen who he could not recognise at the time threw two (2) bottles of beer and smashed them on the centre right side of his head and they broke. Then he fought with the one who threw the bottle at him. They tore his shirt and tied his two hands behind his back and beat him until he was bleeding all over his body. They then carried him up to the dirt road and threw him into an unmarked police vehicle and taken to Waigani Police Station where he saw that the other five of his friends were also badly beaten. He also said that he was beaten across his spine with a branch of a tree which was as long as a 300cm ruler.

On cross-examination he denied that he went to Sogeri with the others and also that he knew that the vehicle was being chased at 14 mile. In regard to the bottles of beer he said on cross-examination that they were full bottles of beer. He denied seeing any green bags in the vehicle. He also denied seeing the other five (5) people in the vehicle holding anything.

There were two (2) records of interview conducted with the accused Simon Uraken. The first was on 18th October and the second one was on 28th October. In the interview conducted by Constable Rokipa with the accused on 18th October the following questions were asked and answers given:

Q15. Can ell mre do e do you liou live?

Ans. I stayed arouNd UPt buse use to live at Gerehu.

Q16. You said that you g vinu.yehu.you tell me which people you are living with?

A

Ans. My adoptmily (father and mand mother).

Q17. t trut you are a student at UPNG?

Ans. <; Yes

Q18.&#16. Can yol me any many years ears you been ding l at UPNG?