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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 834 of 2014
BETWEEN
THE STATE
AND
VANESSA BASSE
Madang : Salika, DCJ
2016: 18, 19 May; 23 June
CRIMINAL LAW – Practice and Procedure – conspiracy – agreement to do an unlawful act – conspiracy to steal.
CRIMINAL LAW – Practice and Procedure – witness an accomplice – evidence of an accomplice – Criminal law –
Practice and Procedure – s.7 of Criminal Code – accused a principal offender.
Cases cited:
Davis v Director, Public Prosecutions (1954) AC 378
Davis v DPP (1954) AC 578
R v Ready [1942] VicLawRp 2; (1942) VLR 85,
McNee v Kay [1953] VicLawRp 2; (1953) VLR 520
State v Nataemo Waun (1977) PNGLR 152.
VERDICT
23 June, 2016
INTRODUCTION
1. SALIKA DCJ: The accused is charged with the following charges:-
Count 1
Vanessa Basse of Derimbat, Lorengau, Manus Province stands charged that she on the 7th day of January 2014 at Madang in Papua New Guinea conspired with one Emily Baling and others to commit a crime namely to steal a
Motor Vehicle a Mazda BT50 Double Cabin utility white in color, registration No LBC 317 valued at K75, 000.00 the property of Zebedee
Zongur.
Count 2
Vanessa Basse of Derimbat, Lorengau, Manus Province stands charged that she on the 7th day of January 2014 at Malolo Hotel, North Coast Road, Madang in Papua New Guinea stole from one Zebedee Zongur with threats of actual
violence a motor vehicle a Mazda BT50 Double Cabin Utility Registration No.LBC 317 valued at K75, 000.00, the property belonging
to Zebedee Zongur.
Count 3
Vanessa Basse of Derimbat, Lorengau, Manus Province stands charged that she on the 7th day of January 2014 at Vidar, North Coast Road in Papua New Guinea, unlawfully detained one Zebedee Zongur in the bushes against
his will.
Count 4
Vanessa Basse of Derimbat, Lorengau, Manus Province stands charged that she on the 8th day of January 2014 at Sisiak Settlement, Madang in Papua New Guinea unlawfully detained one Zebedee Zongur in a house against his
will.
ALLEGATION
2. The State alleged that on the 7th January 2014 about 7.00 am the accused called Emily Baling on her cell phone at her Kazam village that she would be picked up at
9.00 am that day. Emily Baling was picked up at the appointed time by Vanessa Basse in a 10 seater motor vehicle in company with
4 men and one other woman. They drove into Madang town to Kina Beach. At Kina Beach, Emily Baling heard Vanessa and the 4 men making
plans to rob Zebedee Zongur.
3. The State alleged that Vanessa texted a message to Zebedee Zongur to pick up Emily at Modilion Mobil Station. Emily was dropped
by Vanessa and others at Modilion Mobil Station to wait for Zebedee.
4. The State then alleged that at about 2.00 pm Zebedee picked up Emily near the Modilion Mobil Service Station and driven on the North Coast Road towards Malolo Plantation Road.
5. The State further alleged that Vanessa texted a message to Emily instructing Emily to get Zebedee to turn the vehicle around and go to a beach near the Malolo Plantation Hotel. Emily told Zebedee to turn around and go to the beach. Zebedee turned the vehicle around and went back to follow the road to the beach.
6. The State alleged that when they turned around to go on the smaller road to the beach, they stopped and when they stopped they were held up by 5 people armed with 2 pistols and an axe. They forced Zebedee out of the driver’s seat and placed him at the back of the vehicle.
7. The State alleged that these persons took over the Zebedee’s vehicle and drove back towards Madang town. At Vidar they left the main road and followed a smaller dirt road inland stopping in the bushes. The men then removed Zebedee and Emily from the motor vehicle and put them outside of the vehicle in the bushes. They then tied Zebedee’s legs and hands with ropes. The men then removed mobile phones off Zebedee and Emily and left two of the men to guard them while 3 of the men drove away in Zebedee’s vehicle.
8. The State alleged that between 5pm and 6pm Zebedee’s vehicle was seen at Zedland Ltd’s office premises. There at Zedland office Vanessa Basse was seen coming out of Zebedee’s vehicle and opening the Zedland office with 2 men and coming out of the office with the two men and then driving out.
9. The State alleged that at about 2 am on 8 January 2014, a 10 seater motor vehicle went to pick up Zebedee and Emily and the other two men who were guarding them. Zebedee and Emily and the two men got into the 10 seater vehicle and driven to Sisiak No 2 Settlement. Vanessa later joined Zebedee and Emily at Sisiak No2 and after sometime a 10 seater vehicle came and got them and took them to Madang Airport round about where Zebedee, Emily and Vanessa were dropped off separately.
10. Zebedee later went to the police and reported the matter to the police and Vanessa and Emily were arrested and charged for their alleged involvement in this whole episode.
11. It was also alleged by the State that when Vanessa and the two men went into the Zedland office they took money from the office.
12. The state invoked s.7 of the Criminal Code and alleged that Vanessa, Emily and 4 or 5 other men conspired and formed a plan to rob Zebedee of his motor vehicle and his money.
13. Those were the allegations the State made against the accused. The State decided to give immunity against prosecuting Emily Baling in return for her to testify against Vanessa Basse.
Evidence
14. Before calling oral evidence the State Prosecutor tendered into evidence by consent the Record of Interview conducted by Police Investigating Officer with the accused and a voluntary statement given by the accused to the investigating officer dated 12 February 2014. The documents are Exhibits A and B respectively. In her voluntary statement she said the following.
I recall on Tuesday 7th of January, 2014, at about 4pm, I was at Inter Oil when my friend Emily from North coast rang me using Zebedee’s mobile phone. When I answered, she said Zebedee wanted to talk to me. But Zebedee did not talk to me; however, I told Emily that I would wait at the Coca Cola Depot where Zebedee usually picks me. So I went there and at the same time, I saw Zebedee’s car came stopped beside me. As I opened the door of the car to get in, a black skin guy, tall and slim pointed a factory-made pistol on my neck and forced me to get into the car. I got into the front seat and realised that Zebedee and Emily were not in the car. A driver of the car who had brown skin and was fat, handed me a key and told me that, the owner said I knew the key to the door. We drove to Jacob Wama’s area where I got off first and walked to Zebedee’s Zedland Finance office whilst two boys followed me. I opened the door and the boys followed me into the office. The two boys were armed with a pistol each and told me to get a ‘cheque book’ which I took from the table and gave it to them. They asked me for Safe keys so I searched the table and found the keys and gave it to them. They opened the two Safes and took cash money and put them in Zebedee’s bag. When they finished, we went outside and one of them locked the door to the office. We drove to the side of the International School near Gold field where I was blindfolded. They took me out and put me in another car which I believe was a 10 seater. They brought me to a house made of bush material and they removed the piece of cloth over my face. At around 9pm, they brought me to Zebedee and Emily who were in a permanent building (house). They said if Zebedee did not co-operate, they will kill me and Emily. Later, they put us in a 10 seater and we drove to Sisiak: 2 and Public Tank. At a roundabout, we dropped off Zebedee and I was dropped off at Wagol Bridge, LBC area. Emily remained in the car and they drove off. We were dropped off at late night. One of the man in the car got out with me. He tried to touch my skin, but I avoided him saying I was a married women. He left me at the junction of the Roundabout and I went home. On that same night, I rang Zebedee told him that I would report the matter at Yomba Police Station in the morning, but he did not allow me. I also please call my husband Ogem Joe and he rang me and I told him what happened to me. He said he would come and deal with it. Then on Wednesday 12th February, 2014, at about 11am, the police picked me at rent house. I was brought to CID office where my statement was taken.
15. The first witness called was Zebedee Zongur. He is the owner and Manager of Zedland Ltd, Zedland Ltd is located in Jacob Wama building, Modilion Road and has been operating since 2008. Zedland is involved in Real Estate and Mini Loan Finance.
16. He said on 7 January 2015, he was in his office and at about 2pm he received a call from Emily Baling and she told him she had no transport to go back to her village and asked him if he could drop her off. He told her he was busy at that time and told her he will drop her off later in the afternoon.
17. In the afternoon he picked up Emily at the Service Station in Madang Town, drove to North Coast, Malolo Hotel. He said at Malolo Hotel Emily told him to stop at Malolo Beach Front as she wanted to relieve herself. He said he stopped at Malolo Beach Front and that’s where 4 or 5 men held them up with pistol and took the car keys from him and told him and Emily to sit at the back seat of his double cabin vehicle.
18. The vehicle was then driven to Vidar and driven to the bush. In the bush, the men took them out of the vehicle and took them from the road further into the bush. There their mobile phones were taken off them and Emily gave Vanessa’s phone number to them. They called Vanessa and told her to wait at certain location. Two of the men drove in Zebedee’s vehicle, the other two guarded them at the point of a pistol in the bush at Vidar.
19. Zebedee said at 7pm the men came back, this time in a 10 seater vehicle and picked him and Emily and the two guards who were guarding them. He said he was blind folded when in the 10 seater vehicle and he was lying on the floor of the vehicle. He said he did not see or know where they were and he only felt the movement of the vehicle. He said his hands and legs were tied up and they were taken to a settlement and he was dragged into a house and locked up in a room.
20. The blindfold was removed when in the room, but his hands and legs remained tied. The ropes binding his legs and hands were later untied in the room later on. He said also in that room was Emily but the room was locked.
21. Zebedee said at about midnight the men came back with Vanessa because he said he recognised Vanessa’s voice when they were talking.
22. The men then told them about releasing them, but that they must promise not to report the matter to the police and that if he did report they would kill him and he was scared to report the matter and after he promised not to report to police, he was blind folded and dragged to the vehicle. He was then taken to the airport roundabout and taken out of the vehicle there. He was dragged from the road and his blindfold was removed. He was the first person to be released. He said Emily and Vanessa were still in the vehicle after he was released. He walked from there to his residence. He said he was scared and did not report the matter to police but after encouragement from friends he reported after a week to the police.
23. On the next day on 8 January 2014 he did go to his Zedland Ltd Office. His office was not broken into but things from his office were stolen including the motor vehicle.
24. He was informed by the State Prosecutor that Vanessa had made a statement to police where she said she called Zebedee on that same night to report the matter to police and that Zebedee told her not to report. Zebedee said her statement in that regard was not true because that night his mobile phone was taken by the 4 men and he had no phone that night until the next day when it was returned by a boy.
25. The next witness called by the State was Emily Baling. She is from Kazam village along the North Coast Road in Madang but lives with her parents at Arongis. She is unemployed having only completed Grade 8 education.
26. The evidence was that on Monday night which would have been the 6th January 2014 Vanessa called her and told her that there was a birthday party and that she would be picked up on Tuesday 7th January 2014. On Tuesday she was picked up from her village by Vanessa and they went to Kina beach in Madang town.
27. She said Vanessa got her phone and sent a message to Zebedee Zongur to pick her (Emily) from Mobil Service Station and take her to her village. She said Vanessa and the boys took her to the Mobil Service Station in Madang town. She said Zebedee picked her from there and drove her to the North Coast road to Malolo Hotel. She said while on that part of the road a text message came from Vanessa telling her to tell Zebedee to turn around and go to the beach side.
28. She told Zebedee to turn around and go to the beach side. Zebedee did and went to the beach side where he stopped. She got off and Zebedee followed and that’s when they were held up by 5 men with a pistol, axe and a screw driver. They were then put at the back of the vehicle. The keys of Zebedee’s vehicle were taken off him and they were driven to Vidar plantation and into the bushes. They were kept at that bush for some time until the men came back and picked them up.
29. She said they were taken to Beon junction and taken to a house to an iron roof house. There in that house they were locked up for some time. Then the men came back and picked them up again and taken to Madang Airport junction. They dropped her off next to the banana trees not far from where Zebedee and Vanessa had been dropped off. She went to her cousin’s house after being dropped off.
30. She was asked how she came to know Vanessa Basse and she said she knew her when she was living with her cousin Sonya Andoka whose house is in the same area as Vanessa’s house.
31. She was asked whether she knew any of the 4 men but she said she did not know any of them.
32. She further elaborated on her evidence at Kina Beach by saying that at Kina Beach they (meaning the 4 men and Vanessa) told her to go to a spot and there they will hold him up. She said Zebedee picking her up from Madang town and driving along the road was according to the plan. She said she got to know Zebedee through Vanessa because Zebedee and Vanessa were friends and some time earlier Vanessa worked for Zebedee.
33. In relation to her evidence in the bush at Vidar she said the boys were asking Zebedee for money and hitting him and told him to write a cheque. At this place Zebedee’s legs and hands were tied up but she was not tied up. She was asked why she could not leave and run away but she said she was told to stay there. Moreover, there were 2 men guarding them with weapons. She said they were left at the Vidar bush at about 2pm and that she was picked up by Zebedee from Madang town at about 10am and held up at Malolo Beach at about 12:30pm. She said the men came and picked them up between 9:00pm and 10:00pm and dropped them off at the Madang Airport junction at about 2:00am. She said Vanessa was in the vehicle.
34. In cross-examination Emily was asked if there was a plan to rob Zebedee and she answered-“yes”-. She was asked if she told Zebedee about the plan to rob him but she said she did not tell him.
35. Also in cross-examination Emily was asked if Vanessa was in the 10 seater motor vehicle that came to pick them up from Vidar and she said Vanessa was in the 10 seater vehicle. She was also asked if Vanessa was locked up in the same room as herself and Zebedee at the Beon junction house and she said-“no”. Emily’s evidence about Vanessa at Beon junction house is that Vanessa “was with the men” in other words. Vanessa was with the men and not locked up with them.
36. In cross-examination she was asked if on 7th January 2014, she conspired with Vanessa to steal Zebedee’s vehicle and she said-“no”. I asked her what then was the plan and she said the plan was to steal money from Zebedee. Then I asked her if she was part of the plan and she said-“no”. I then asked her if it was part of the plan to use her and she said-“yes” and I then asked her if she agreed to the plan and she said-“yes, they asked to use me and I agreed with them and said yes”. I asked her who asked to use you and she said Vanessa.
37. The next state witness was Loreta Wama. She is a teacher. At the material time she was on sick leave and on that day 7th January 2014 and time between 5:30pm and 6:00pm she was at her father’s house, which is also where she resides. At that time she was on the house verandah facing Zedland office. She said she saw Vanessa Basse walking to Zedland office followed by 2 young men. She observed Vanessa open the door to Zedland Ltd office and the 2 young men also went in. She said Vanessa and the 2 men were there for some 5 to 10 minutes before they came out again. She said she did not know what happened in the Zedland Office and about the whole matter but said as Vanessa was Zebedee’s girlfriend she was not concerned.
38. She said Vanessa and the 2 men came in Zebedee’s vehicle to Zedland office. Loreta was asked how far she was from Vanessa and the 2 men when she saw them and she said the distance from where she was to the car park was about 20 meters. She said from where she was seated on their house verandah she could see everything from the car park to Zedland Ltd office.
39. She was asked how they walked and she said Vanessa came out first and the 2 men were at her back and they walked to the office and went in. She said she saw everything clearly.
40. The State closed its case after this witness and the defence then made a no case submission which was dismissed and the accused elected not to give oral evidence because she said what she is to say was already in evidence which is her statement dated 12 February 2014 and which is now Exhibit B.
Undisputed Evidence
41. On submissions on verdict both counsel agreed to the following undisputed facts;
Issues
42. As Vanessa Basse denied her involvement in the commission of the 4 charges the issues are;
INVOKING OF SECTION 7 OF CRIMINAL CODE
43. Before addressing the issues, it is to be noted that in relation to all the charges the State invokes section 7 of the Criminal Code. Section 7 of the Criminal Code provides;
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; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(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.
IS EMILY BALING AN ACCOMPLICE
44. The Oxford Advanced Learners Dictionary 8th Edition defines accomplice as;
“a person who helps others to commit a crime or to do something wrong.”
45. The Osborne: A Concise Law Dictionary defines an accomplice as;
“any person who, either as a principal or as an accessory has been associated with another person in the commission of an offence”.
46. In Davis v Director, Public Prosecutions (1954) AC 378, the House of Lords held that persons who participate in the actual crime charged, whether as principals or accessories before or after the fact, are to be treated as accomplices. That is the common law position. In Victoria it was held by the Full Court in R v Ready [1942] VicLawRp 2; (1942) VLR 85, that an accessory after the fact is not an accomplice, within the meaning of accomplice stated in Davis v DPP (1954) AC 578. Frost C J appears to favour the views of the Full Court of Victoria. In the State v Nataemo Waun (1977) PNGLR 152. In McNee v Kay [1953] VicLawRp 2; (1953) VLR 520 the Victoria Full Court said;
“An accomplice must be a person privy to the criminal intent of the accused ......”.
Frost CJ was of the view that it was up to the tribunal of fact to decide the question of whether a witness was an accomplice.
47. In this case evidence from Emily Baling herself is that she agreed to be part of the plan. She was a person privy to the alleged criminal intent of Vanessa Basse. She agreed to take part in commission of the alleged crime. Accordingly I find Emily Baling an accomplice and therefore an accomplice witness for the purpose of this trial.
EVIDENCE OF AN ACCOMPLICE
48. In the State v Nataemo Waun (supra) the court there held that the common law rule of practice required a jury to be warned that it is dangerous to act on uncorroborated evidence of an accomplice but that they are entitled to convict on the uncorroborated evidence, if they think fit, was applicable in the circumstances of PNG. This means the Court which is the trier of facts is entitled to convict on the uncorroborated evidence of an accomplice witness if the court thinks fit. It also means the Court must warn itself of the danger of acting on the evidence of Emily Baling, who is an accomplice witness.
49. The reasons for caution are obvious in that accomplices tend to fabricate evidence, concoct evidence and have the tendency to minimise their own part in the commission of the crime. In this instance therefore I so remind myself of the dangers of acting on the evidence of Emily Baling because she as I have already found was an accomplice. She knew the criminal intention of Vanessa before the crime was actually committed.
50. Moreover another reason for caution is that when an accomplice is willing to be a witness for the State there is an expectation of a reward by the accomplice. In most cases the State usually offers not to charge the accomplice or offer some reduced sentence in return. In cases where the State offers immunity from prosecution to an accomplice it is considered that the evidence has been bought. It may also be considered to be bribed evidence.
51. I only raise these matters because they affect the weight to be given to the evidence of an accomplice witness and why it is wise I have already cautioned myself of that danger to act on Emily’s evidence. Emily was given immunity from prosecution upon her agreeing to give evidence for the State.
OTHER EVIDENCE
52. In this matter as alluded to earlier in the judgement the State also called Zebedee Zongur and Loreta Wama. Zebedee’s evidence is both direct and circumstantiated. He was robbed of his vehicle and his liberty was taken away as a hostage to effect their primary plan which was to steal money from his Zedland Ltd office. That is direct evidence. Loreta’s evidence was both direct and circumstantiated as well. She saw Vanessa and 2 men go into the Zedland Ltd office between 5:30 and 6:00pm on 7th January 2014. Her evidence gives meaning to the evidence of Zebedee and Emily when connected together in the sequence of events as they happened.
53. The accused gave a voluntary statement to the police which was tendered into evidence by consent. Her statement connects the
earlier events to her being seen with 2 men go into Zedland Office between 5.30 pm and 6.30 pm. It also connects her to the events
later that night until she is dropped off.
DEALING WITH THE ISSUES
54. The evidence is that Vanessa planned with 4 or 5 other unknown men to rob Zebedee and his company Zedland Ltd of its money. Vanessa and the 2 men who went to Zedland office between 5:30 and 6:00pm on 7th January 2014 did steal money from that company but she is not charged for stealing that money. She is charged for conspiracy to stealing Zebedee’s motor vehicle. While Vanessa, Emily and the 4 men might have conspired to steal only the money from Zedland, as the plan was executed for Zebedee to pick Emily to take her to her village in the motor vehicle that was stolen, it was inevitable that Zebedee’s motor vehicle had to be involved in a big way to effect their plan, and as we now know everything fell into place as planned.
55. I find from all the evidence that Vanessa Basse did conspire with Emily Baling and the 4 or 5 unknown men to commit a crime, and that was to steal Zedland Ltd money, but in order to steal the money they had to find a way to isolate Zebedee the owner of Zedland and get the Zedland office keys, safe keys and steal Zebedee’s vehicle. This they did successfully with Emily’s consent and essential mens rea. Accordingly I find that stealing of Zebedee’s motor vehicle was a necessary outcome or event to effect the stealing of the money. The identities of the 4 or 5 men involved in this conspiracy appear to be unknown. I do not believe this to be the case. I believe the identity of some of the 4 or 5 men involved in this incident are known to both Vanessa and Emily. But I do not make anything out of this. This is simply an observation only and I will take it no further.
THE REMAINING ISSUES
56. All the above other issues are consequential to the conspiracy to steal charges. The State invoked Section 7 of the Criminal Code in relation to Vanessa’s participation in the commission of these offences. The facts in relation to the above issues are not in dispute. Pursuant to Section 7 of the Criminal Code, criminal responsibility must attach to Vanessa in relation to the other issues.
57. Vanessa according to the evidence of Emily was a major player in this whole episode. She in other words was a principal. Criminal responsibility will attach even though the crime takes effect on an unintended victim or property or by an unintended mode. (Michael [1839] EngR 207; (1840) 173 ER 867)
58. Vanessa may not have been present when the 4 or 5 men held up Zebedee and Emily at Malolo Hotel beach road. She may not have been present at the Vidar Bush or Sisiak 2, but her involvement in the plan and conspiracy to carry out these crimes is covered under Section 7 of the Criminal Code.
59. By operation of Section 7 of the Criminal Code Act Vanessa is therefore a principal offender in all the offences committed and charged in this indictment. Accordingly I find her guilty on all 4 counts she is charged with.
________________________________________________
Public Prosecutor: Lawyer for the State
Meten Lawyers: Lawyer for the Accused
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