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State v Siro [1997] PGNC 110; N1624 (15 September 1997)

Unreported National Court Decisions

N1624

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1501 OF 1997
THE STATE
v
JOHN KORE SIRO

Waigani

Batari AJ
9-11 September 1997
15 September 1997

CRIMINAL LAW - Evidence - Robbery - Circumstantial evidence - Proof of.

CRIMINAL LAW - Evidence - Failure of accused to give evidence - Test applied.

Cases Cited:

Paulus Pawa v The State [1981] PNGLR 498

Counsel:

Pambel for the State

P Tusais for the Accused

Trial

The following judgment was delivered on the trial of the accused following his plea of not guilty to the charge of armed robbery.

15 September 1997

BATARI AJ: The accused has beenctndicted on one count of robbery pursuant to s. 386 (1) & (2) (a) (b) of the Criminal Code. It was alleged that on 26, 1996 he entered Taurama Pharmacy in the National Capital District, and stole from the shoe shop with actual violence, a Cash Registlued at Five Hundred Kina (K500.00) and Four Hundred Kina (K400.00) in cash, the property orty of Taurama Pharmacy Pty Ltd. It lleged he was armed witd with a pistol and in accompany of others.

The fact of the robbery was uncontested. About f5) pe entered TauraTaurama Pharmacy on the day in question and threatened the shop assistanistants with a pistol. When the alar raishey grab grabbed the Cash Register which held Four Hundred Kina (K400.00) in cash and and escaped in a white Toyota Corona vehi#160; The vehicle was later abandoned at Korobosea Village. Polracked the occupaccupancupants down to Kaugere Settlement. Gun- were heard and the ache accused was seen running across a playing field with a policeman in pursuit. He was followed housre heawas appreheprehended.

The accused has denied his guilt upon arraignment. #160; At the enState’8217;s case he ed to maintain silence as he did during the conduct of record of interview. Mr Pambelambel has articd ated that the failure of ccused to take the witness box should strengthen State̵’s case. I have considered this and concluded that the questiowhat may the tribunal of fact make out of the accused’#8217;s failure to testify is sufficiently covered in the case of Paulus P The State [1981] PNGLR 498 in the judgment of Andrew, J at J at p. 504:

“I agree with the conclusions of Professor O’Regan in his article, Adverse Inferences from Failure of an Accused Person to Testify 1965 Crim. LR 711, that:

(1) The failure of an adcusesoperson to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify;

(2) Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

(3) &##1160toify only only beco becomes omes a rela relevantevant consideration when the Crown has established a prima facie case;

(4) & The t to be attached to railure to testify depends onds on the the circumstances of the case. Significant circumstanceluinclude:(a)&ـ҈ whether the truth is not easily ascertainable by the Croe Crown buwn but prot probablybably well known to the accused;

(b0; whether the evidence implncatingating the accused is direct or circumstantial;

(c) whether the accused is legally represented;

(d) ҈ whetherether the accused eas before trial given an expion wthe Chas ad in nce.”

For convenience, I also refer toer to the the princprinciplesiples on c on circumstantial evidence stated in Paulus Pa217;s as the evidence ence againagainst the accused is substantially circumstantial.

State’s crucial evidence against the accused is the pair of keys found on him which it said fitted and opened the Cash Register that was stolen from the Pharmacy.

The evidence of Paul Komboi and Brian Kombe were that they followed the accused to a house where he surrendered. This waer he was chased aced across the playing field. There was howev evidence fnce from the pursuing policeman on the field.&#1here was also no evidence as to where he originally fled from. They hed him and and foun found a pair of keys which they took ssion of. The keys fiys fitted and opened the Cash Register which was also recovered and brought to the Police Station, the sam.

During submssions,ions, I raised the propriety of the accused being searched without being told the reason for his detention and or without cautioned. Becaefence Counsel had notd not disputed this aspect, it may be assumed that the accused’s detention and subsequent search of his body was in order. The paireys is now in evid evidence. I consider whether or not not the evidence sufficiently connects the keys to the Cash Register.

State witnesses say both the Cash Register and the kee recd on the same daye day after the robbery. While the kthe keys waid taid to have been found on the accused, the Cash Register was said to have been found in a rubbish pit where the vehicle was abandoned. There is no direct nce thae that the Cash Regibelonged to Taurama Pharmacarmacy Pty Ltd. There was however, hearsad evidence, admitted without objection that it was the propof the Pharmacy. I accept the inferehat thet the Cash Cash Register was the one taken from the Pharmacy in the robbery.

the Register was brought toht to the Police Station at Boroko, Constable Kombe said he tried the keys and it worked. However, he cout recall itll its condition. I he lied on this aspect pect as other State witnesses say the Register was retrieved in a dd condition. I infer from his evidenat that the Cash Register had been opened before fore he inserted the key. He said he closed thister,ster, put the key in, turned it and it opened. He did nothe locked it witt with the key and again opened it with the Nor he say anything about bout using both keys. Senior Constable Lce Torr Torr Torres said he also tried the keys and thrked.; Initially he sthe stated there were only one lock but later he said there were two locks.ocks. It bvious that he shiftedeftedevidence after realising thng that the two keys were different from the other and would unlikely fit the same lock.

The Cash Rer, as I have stated was with the police. For some unme unexplareasoreason, it was subsequently returned to the Pharmacy and had since been discarded by the owners. A crucial evidence was deetroyed with the assistant of the police! This clearltomises groliceolice investnvestigatory blunder. Police may have deliberapely perverted the course of justice in their investigs.&#1heir action also also give rise to suspicions that the evidence which link the accused to t to the Register keys might have been fabrd. The keys are in evin evidence. What use are they without the Register to support the evidence that the keys were from that Register? The evidence is now shat Ihat I am unable to the hold beyond reasonable doubt that the Keys and the Register wernected.

There were oere other relevant factors:

(i) ҈ T60; The Register wos br ight in a damaged state. Therestrong suggestion it n it was smashed open. Sergeant Alphonse Adescribscribed its condition as: &#8220as alshed,as not in l condition”. Sen; Senior Ciortaonstabletable Torres said both sides were dentedented inward. The inference is open the robbers did not have tave the keys to open the Register and further that even if the key in Exhibit “C” was for the Regisit would most unlikely operate the Register as the locking mechanism would have been damageamaged or altered when it was forcibly opened.

(ii) ټ&#There were was no s no direct evidence that the accused escaped from the abandoned vehicle or was fleeing from it. The evidenceested the accu accused was running towards the general direction of the abandoned vehicle. I fiis strange. Why wWhy would he bning tong towards the settlement from the opposite direction to hide, when he could have eadone that earlier while fleeing directly towards the settlement?

(iii) < e war no evidenie which conh confirm the accused was the same man that was seen running across the field. The eman who chased him haim has not been called0; Thas al evidConstables Kamboi and Kombe kmbe kept tept their heir eyes eyes on him until he entered a house. Northere evidence suggestegeste was out of breath or he w he was sweating from the pursuit when they detained him.

(iv) ټ There was noes noence on the value of the Register or the amount of money aley allegedly stolen. Even if I find a Registertwas taken as a resulthe ro, its value and contents would remain mattematters for speculations only.

It i>It is apparent from these observations thdo not have to draw any adverse inference from the accused&used’s failure to testify. The Stat17;s case at the ethe end of all the evidence has been so insufficient in vital matters that I am not convinced beyond reasonable doubt that the accused committe offence charged. I find him nilty and acquiacquit huit him. discharged forthwith.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor