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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 125 of 1999
THE STATE
MICKY JOHN LAUSI
WAIGANI: KANDAKASI, J.
2001: February 12 and 16
CRIMINAL LAW - PRACTICE & PROCEDURE - Two separate counts in one indictment- Need to separately arraign the accused on each of the counts – Earlier general arraignment not sufficient – Accused re-arraigned – Evidence called on the basis of earlier general arraignment treated as evidence called after the re-arraignment - Criminal Code (Ch No 262), ss.557 and 560
CRIMINAL LAW - Particular offences - Armed gang robbery on a street - Motor vehicle stolen at gun point - Defence of compulsion raised but not established - Guilty verdict returned - Criminal Code (Ch No 262), ss. 32 and 386
CRIMINAL LAW - Particular offences - Unlawful use of motor vehicle following robbery of motor vehicle at gun point - Defence of compulsion raised but not established - Guilty verdict returned - Criminal Code (Ch No 262), ss. 32 and 383
Cases cited:
Simili Kara v. The State [1984] PNGLR 254
Abel Pagawa v. Frederick Mathew [1986] PNGLR 154
Aipa Peter v. James Kapriko [1984] PNGLR 179
The State v. Angela Colis Towavik [1981] PNGLR 140
Tapea Kwapena v. The State [1978] PNGLR 316
Counsel:
M. Zurenoc for the State
O. Oiveka for the Accused
16th February, 2001
DECISION ON VERDICT
KANDAKASI, J: The State presented an indictment against the accused on the 12th of February 2001, charging him with one count of armed robbery under s.386 and one count of unlawful use of a motor vehicle under s. 383 of the Criminal Code Act (Chp. 262) hereinafter "the Code"). Most of the facts and elements of the offences were not in issue as the defence was raising the defence of compulsion under s. 32 of the Code.
Arraignment
Having regard to the position taken by the defence, the accused pleaded not guilty to both counts initially on an arraignment that did not see to the accused being arraigned separately on each of the counts, due to an oversight. Upon realising the oversight with assistance of both counsels, the accused was re-arraigned this time putting each of the charges separately to him and he was asked to plead separately to each of them. Through that process, the accused maintained his not guilty plea on both counts, which necessitated a trial on both counts.
It was necessary to go through the above process because of the accepted practice and principle that an accused has the right to be arraigned separately on each of the charges against him if an indictment charges him with more than one count.
Section 557 of the Code provides that:
(1) At the time appointed for the trial of an accused person, he shall be informed in open court of the offence with which he is charged, as set out in the indictment, and shall be called on to plead to the indictment, and to say whether he is guilty or not guilty of the charge.
(2) The trial begins when the accused person is called on in accordance with Subsection (1).
That provision accords an accused person the protection he is entitled to under s. 37 (1) and (4) of the Constitution, which reads in relevant parts:
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
...
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law ..
The Supreme Court in Simili Kara v. The State [1984] PNGLR 254 in respect of s. 57 by the majority (per Kidu CJ) said at page 259:
s. 557(1) is quite clear, an accused person must "... say whether he is guilty or not guilty of the charge". ...and s. 557(2) quite explicitly says that a "trial begins when an accused person is called upon in accordance with Subsection (1)." As there was no trial the convictions and sentences of the appellant were null and void ab initio. Grave injustice was done to the appellant in that he was convicted and sentenced during a trial, which was not legally sanctioned.
...
Section 557 of the Criminal Code protects a person charged from being tried without being informed of the charge against him. It also protects him from being tried without being asked to plead to the charge in the indictment. So s. 557 being a law which protects a person charged with an offence must be strictly complied with by the National Court. Also a trial must be conducted according to law. The non-compliance with s. 557 in this case means that the trial was not in accordance with the law.
The Supreme Court also said in that case per Amet J (as he then was) at page 266 that an accused person:
should be asked to plead to each count as it is read to him: R. v. Boyle [1954] 2 Q.B 292. At 296 Lord Chief Justice Goddard in delivering the opinion of the court said:
‘The court desires to say that in its opinion the right practice is that when the indictment contains several counts, each count should be put to the accused separately, and he should be asked to plead to each particular count. It should be remembered that every count in an indictment is equivalent to a separate indictment; the prisoner can be tried on one or all of the counts. The verdicts have to be taken separately, and the right practice is that he should be asked to plead to each count as each count is read to him. There can then be no doubt as to which count the prisoner intends to plead.’
That was a case in which the appellant was convicted and sentenced on a charge that was not put to him on arraignment and was not in the relevant indictment. In the case before me, the indictment charges the accused with two separate counts arising out of the same incident. The charges and brief facts were read out to him and he expressly stated that, he understood everything that was read out to him, including, the charges. On the basis of that, he was asked to plead to the charges and he pleaded not guilty. The only problem was that, the charges were not separately put to him for him to separately plead to. This was corrected in the re-arraignment with the assistance of both counsels.
The State called two witnesses who gave oral evidence under the earlier general arraignment. Following the re-arraignment, the State applied for that evidence to be treated has evidence given after the re-arraignment. The Defence did not oppose that application and consented to the application. I therefore, ruled that, those evidence be treated has evidence in respect of both counts as re-arraigned. I arrived at that decision on the basis that, that evidence was produced and admitted into evidence specifically for the two counts presented in the indictment and that the accused exercised his right of cross-examination of the witnesses. Calling those witnesses again would only result in taking up more time to get the same evidence in. Further, the protection provided for under s. 37 (1) and (4) of the Constitution and s. 557 of the Code is for an accused person. If such a person on proper legal representation and advice, decides or agrees to a conduct of a trial in a certain way, that should be respected. This is because he or she alone is the one that stands to directly suffer any injury that may result if there is a breach of his or her right.
The State’s Evidence
The State called two witnesses who gave oral evidence. The first witness was Paul Egep. He was the victim of the offences. He testified that on the 13th of June 1999 just after midday, he drove to the Koki market, here in the National Capital District. He parked his car, a Nissan Sunny sedan, registration number LAM 093 at the parking lot next to the fish stall of the market. His wife and one of his child went to the market whilst one of his other small child and he waited in the car. Suddenly, a gang of five youths armed with guns approached him and pointed the guns at him and ordered him to get out of the car. One of them pointed a gun at him from the driver’s side of the vehicle, while an another went to the crew side and also pointed a gun at him. He complied with the order and got out of the car with his child. He saw two of the gangsters were just ready to get into the back seat of the car as he got out. He was also ordered by one of them to surrender his wallet and he did. Once he and his child were out of the vehicle, the gang drove off at an high speed without stopping.
He stated that, all these happened so quickly and suddenly for him and the other people in the vicinity. He was in a state of shock and fear. Consequentially, he was not able to identify any of the gangsters. He said, as it happened so suddenly and quickly, none of the people near the scene reacted until about five minutes later, when some of them threw stones and bottles at the vehicle as it was being driven off very fast. One person whom he later came to find out as an off duty soldier helped him to the Badili Police Station to report the incident to Police.
On the way to the Police Station, the witness reported the robbery to his employer and owner of the vehicle, South Pacific Holdings Limited and eventually the Police.
About twenty minutes later, police sighted the vehicle and gave chase, apprehended the accused and recovered the vehicle with damages to the front as a result of getting into a drain. Otherwise, the vehicle was drivable.
The second witness was Senior Sergeant Charles Winuan. He was the police investigating and arresting officer. He said he was on motorised patrol in the Gerehu area around 12:05 pm on the 13th of June 1999 and heard on the Police radio about a armed hold up at Koki and theft of a vehicle described as a Nissan Sunny, white in colour and registered number LAM 093. A little later, he was directed to go to the Badili Police Station and pick up a suspect in relation to the robbery and unlawful use of the motor vehicle. He therefore, went to Badili Police Station and picked up the accused and brought him to the CID Motor Squad at Boroko Police Station where the accused was interrogated.
The witness stated that, when the accused was asked about the robbery and the unlawful use of the motor vehicle, he admitted to having committed the offences. On the basis of that, he proceeded to arrest and charge the accused. The admissions are recorded on the summary of facts accompanying the information. In view of that, he thought it not necessary to extract a formal confession or admission from the accused. Consequently, there is no formal confession in evidence.
In addition to the oral evidence, a number of documentary evidence were adduced into evidence with the consent of the defence counsel. This consists of the record of interview in both the Pidgin and English language versions through the second witness. According to the record of interview, the accused chose to answer each of the question either with "I will tell the Court later" or "I will remain silent" or both, even for questions in relation to his whereabouts on the day of the offences. The only questions he answered were in relation to, why he was being questioned and his personal details.
The other documentary evidence were a statement each by Constable Ben Sape dated 13th June 1999 (exhibit "C") and Constable Harry Hahi (exhibit "D"). These evidence speak of the authors carrying out motorised police patrol in the Gabutu area, close to Badili when they heard on two way police radio about a robbery involving a vehicle, Nissan Sunny sedan registered number LAM 093. They saw the car driving pass and gave chase into the Kaugere settlement. Five young male occupants jumped out of the vehicle whilst it was still in motion. The vehicle went on its own and came to a stop in a drain. Four of the occupants escaped into the settlement on foot and they caught the accused who was trying to hide from them in a toilet. They brought the accused to the Badili Police Station and from there, they handed him over to the CID Motor Squad at Boroko.
The other evidence is a statement from senior constable Agness Sive dated 16th July 1999, together with two photographs of the vehicle, which are exhibits "E1" and "E2" respectively. They show the vehicle as it was after the robbery and damaged in the consequence, which corroborates the other evidence already in court.
Evidence of the Accused
The evidence of the accused consists only of his oral testimony given under oath. There is an affidavit on file sworn by the Accused on the 13th of February and filed on the same date. I will have no regard to that affidavit because, it is not formally in evidence. It has been brought onto the file after the close of the defence case and hearing of submissions and reservation of the matter for a decision on the guilt or innocence of the accused. Besides, the court has made no direction or order for that to be filed.
The oral evidence of the accused is that, he lives in Gerehu. On the 13th of June 1999, he went to the Koki market to buy some foodstuff. There, he met four youths known to him namely, Enock James from Goroka, John, Ipai and Jack (all surnames unknown) at the car park next to the fish stalls. He got to know these boys through crusades run by his father in the Kaugere area. These youths asked him for some money and he told them that, he did not have any money. They were talking about two meters away from where the victim’s vehicle was parked. Then all of a sudden, those boys went and held up a man in a car whom he identified has the victim Paul Egep. The people at the scene started to throw stones and bottles at the vehicle. This created fear for his life as he was seen talking to the robbers. He therefore, decided to and jumped into the back seat of the car and he drove off, with the robbers on high speed.
He confirms the States evidence that, police gave chase of the vehicle into the Kaugere settlement where he and the four youths jumped out whilst the vehicle was still in motion. He says, he then ran into the yard of a house and there he surrendered to police. From there, he was taken to the Badili Police Station and eventually the Boroko Police where he was arrested and charged. He claims he was beaten up by police and subjected to threats to his life. He therefore, admitted to being involved in the commission of the offences with which, he has been charged.
Assessment of Evidence
The armed hold up and driving off in the stolen vehicle happened so fast and suddenly. The victim Paul Egep saw and said a gang of 5 young men who held him up and drove off in his vehicle. According to the evidence of the accused, he knows four of the 5 culprits. Just before the hold up, the accused was talking to them. The accused says they asked him for some money and he told them that, he had no money. Yet he also said he went to the market to buy some foodstuff so he must have had some money at that time in the absence of any evidence of having earlier used the money, meant for the market goods.
The accused said, he got in the car with the robbers out of fear for his life as the people at the scene threw stones and bottles at the vehicle. Common sense dictates that, if that was the case, the vehicle could have sustained some damage say, the windscreens being damaged or broken but there is no evidence of that. Also, it does not go well with common sense or logic for a gang, who has just held up a men and stolen his vehicle and wallet rushing to flee from the scene stop and pick a person, who did not set out to commit the serious offence with them and therefore, not part of them unless, he was one of them. It is hard to accept such possibility especially when, the accused says he was about two meters away from where the offence was just taking place. As he was two meters away from where the hold up was taking placing, his friends would have abandoned him before the hold up took place and people started to throw stones and bottles.
It is also beyond any logic and or common sense that, the four young men who were friends of the accused would put his life in danger by first, entering into a conversation with him in the presence of other people who are unknown to the accused. That is more so when, those young men were going to effect an armed hold up. Then suddenly, hold up another person without the slightest warning to him, unless there was a good reason for the accused not to be warned and or there was an intention on the part of his friends to put him to trouble, does not go well with common sense. The accused was the only person who could tell the court of any reason why his friends would have had, if any, to put him into danger has they have but he failed to call and or give any such evidence. He has also failed to call a witness or evidence to support him in his evidence. So his evidence stands uncorroborated, although corroboration is strictly not required.
Further, although there is no formal confession, there is evidence of the accused admitting to the commission of the offences to Senior Sergeant Charles Winuan on the same day of the offence. Questions in relation to that were put to the accused during the record of interview and he chose not to comment on them. He claims he was beaten up and threatened so he made the admissions. However when given the earliest opportunity to comment on them, he also failed to do so. He further failed to pursue his claim of being beaten up and threatened, except, only to claim it in court, without the support of any evidence.
The demeanour of the State witnesses impressed upon me has being truthful and credible. The first State witness did not attempt at all to identify the accused as one of the persons involved because as he says, the hold up and fleeing took place so suddenly. It took about 5 minutes before other people near or at the scene realised what was happening and started throwing stones and bottles. However, by then, it was very late. The gang escaped with the vehicle. That is way the vehicle did not sustain any damage from the stones and bottles that were thrown at it. The accused was in the vehicle when police gave chase and he jumped out at the same time as his friends, while the vehicle was still in motion. When he had the opportunity to explain how he came to be there, he chose not to do so. His demeanour did not create any impression in my mind that, he was truthful and therefore credible.
Having regard to all of the above, I do not find the evidence of the accused credible. Accordingly, I do not accept his evidence. This leaves this court to proceed to deal with the accused on the basis of the State’s evidence, which I accept as both truthful and credible.
Issue
In the light of most of the facts not being contested and the defence raised by the accused, the only issue for determination is whether the accused was caught up in the robbery and unlawful use of motor vehicle by compulsion within the meaning of s.32 of the Code.
Section 32 of the Code reads:
32. Justification and excuse: Compulsion.
(1) A person is not criminally responsible for an act or omission done or made—
(a) in execution of the law; or
(b) in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or
(d) when he does or omits to do the act—
(i) in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and
(ii) believing himself to be unable otherwise to escape the carrying of the threats into execution,
but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.
(2) Whether an order is or is not manifestly unlawful is a question of law.
There is no doubt that this defence applies to all offences, including the offences with which the accused has been charged: see Abel Pagawa v. Frederick Mathew [1986] PNGLR 154 at pages 155 and 156; Aipa Peter v. James Kapriko [1984] PNGLR 179 at 180 and The State v. Angela Colis Towavik [1981] PNGLR 140 at 145.
The Supreme Court in the context of the defence of self –defence and provocation held in Tapea Kwapena v. The State [1978] PNGLR 316 at 321 that that the test to be applied is a subjective one. It reasoned that, what matters is what the person faced with actual or threatened harm or danger to his person in the particular or given circumstances had. This test was adopted in The State v. Angela Colis Towavik (supra) at page 146. That was a case in the context of the defence of compulsion under the then equivalent of s. 32(1)(c). In respect of that provision, the court said:
FROST J: (as he then was) expressed the view that s. 31(c) only excuses an act done for the purpose of defence and its provisions cannot derogate from the specific provisions relating to self defence appearing elsewhere in the Code: R. v. Lupalupa-Sisarowe ... With respect to his Honour and bearing in mind that what he said was obiter, it seems to me that s. 31(c) may be regarded as extending to acts which are not covered by the provisions of the Code relating to self defence. With particular relevance to the present case, s. 31(c) specifically refers to threatened violence whereas s. 274 requires prior assault by the victim for the defence of self defence to become available. Of course a threat of violence may constitute an assault (but not a battery) depending on circumstances. The word "actual" in s. 31(c) is somewhat confusing but I accept what Mr. Kitchin submitted, namely that it means "physical". It is so used in other sections of the Code, for instance in s. 396 in relation to the definition of robbery. The word "actual" only makes sense in these provisions if it means "physical", it cannot mean "existing in fact, real; present, current" because that would take the violence beyond the stage of a threat. "Actual ... violence threatened" may encompass circumstances where a person is convinced that he faces the threat of a future assault but where that threat itself does not constitute an assault. ...
In construing the words "reasonably necessary" in s. 31(c), I take the test to be a subjective one. The Supreme Court has decided that the test is subjective in cases of self defence: Tapea Kwapena v. The State ... The same test should be applied in cases of compulsion under s. 31(c). To apply an objective test would be to ‘put some terrified person who has been violently attacked or thinks he has, or is about to be, in an unfair position at his trial if the arrogance of hindsight later reveals that his instinctive, defensive action did not actually need to be as extreme as it was’: per Raine Dep. C.J. 12. ...
It has been held in Queensland that the proviso appearing under s. 31(d) applies to all the circumstances dealt with in s. 31 and is not limited to cl. (d); see R. v. Silk ... per Kelly A.J. Whether this is so or not (and regardless of what constitutes the difference between justification under s. 31(c) from justification under s. 31(d)), the proviso applies only where the offence charge is punishable by death, or is an offence in the definition of which, or in the commission of which the causing or intention to cause grievous bodily harm is an element. The offence of unlawful wounding is not punishable by death and the facts of the case take it outside the proviso.
I would also observe that s. 31(c), despite the heading of the section in the terms "Justification and Excuse: Compulsion", is not restricted to an act compelled by actual or threatened violence in the sense of an act of the accused directed towards the victim and carried out under duress brought about by violence or threats on the part of a third party directed towards the accused. For what it is worth, I think that par. (d) should be read in the same way.
For our purpose subsection (1)(d) is relevant. The protection under this provision in my view is similar to the one provided for under subsection (1)(c) but differs in the following respects:
I have, for reasons already given, decided not to accept the evidence of the accused. That leaves only the State’s evidence. Thus on the basis of that evidence, I have to decided whether the accused acted under compulsion within the meaning of s. 32 (1)(c). The states evidence is that, the accused was a member of a gang of 5 young men who held up a Paul Egep at gun point, stole his wallet and vehicle and drove off in the vehicle at high speed. There was a lapse of about five minutes before the people at or near the crime scene reacted against the fleeing vehicle. All of the guns the gang had with them were pointed at the victim Paul Egep and none or nothing at the accused. Police soon caught up with the gang and chased them into the Kaugere settlement, where the gang jumped out of the vehicle while it was still in motion and fled. The accused was apprehended when he was trying to hide in a toilet. He initially admitted to committing the acts of armed robbery and unlawfully using a motor vehicle. In court however, he claimed he made the admissions because of police beatings and threats without any evidence supporting those claims. When given the opportunity, he did not make that clear at the earliest possible. Also he failed to state in the record of interview his claim of being under compulsion.
In the circumstances, I find for the purposes of s. 32 (1)(d) of the Code that, there was no immediate threat of death or grievous bodily harm directed at the accused. I also find that, there is no evidence identifying the person or persons posing the alleged threat apart from a general reference to people in the vicinity (not necessarily related to the victim and therefore having a reason to harm the accused) throwing stones and bottles at a fast getting away vehicle even if, I was wrong in the earlier finding that, there was no threat. Further, even if I am wrong in these findings, there is no evidence of the alleged threat coming from an identified person who was capable of executing it and that, the person posing the threat was physically present at the scene. Furthermore, even if there was a threat, I find there is no evidence to show that the only way to avoid the effects of the threat being executed was for the accused to get into the stolen vehicle and flee with the gangsters. The defendant’s own evidence instead, shows that, he was about two meters away from where the armed hold up was taking place. There was also, from the State’s evidence, a lapse of about 5 minutes before anybody realised what was happening and reacted to it. The accused therefore, had opportunity to avoid what he claims to be threats to his life either by running away or mingle up with the crowd and still escape being harmed. That would have been easy because nobody, not even the victim identified the accused with the gang before he got into the vehicle and flee with the gang on his version of the evidence. In these circumstances, I find that, the defence of compulsion has not been made out.
On the evidence as accepted by this Court and the position taken by the accused, I find that, all the elements of the respective counts
under s. 386 and 383 has been established beyond any reasonable doubt. I thus find the accused guilty on both counts. I therefore
order a return of a guilty verdict respectively on the one count of armed robbery under s. 386 and one count of unlawful use of motor
vehicle under s. 383 of the Code and accordingly convict the accused on both counts. The accused is now a prisoner of the State and shall forthwith be taken into
the custody and detention of State to be held at Bomana CIS, pending his sentence. His bail is therefore revoked and his cash bail
of K500.00 shall be refunded.
______________________________________________________________________
Lawyer for the State: Public Prosecutor
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