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State v Damusuk [2016] PGNC 54; N6229 (22 March 2016)

N6229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1077-1096 OF 2013

THE STATE

V

TIMOTHY DAMUSUK
1st accused

KULEM KISOU
2nd accused

KABIANG LOD
3rd accused

KADAMAN NANUI
4th accused

MULUK PANALUAN
5th accused

LUWI SIAM
6th accused

Madang: Cannings J
2015: 18, 19, 20 March, 17, 23 April, 3, 19, 23 June, 9 July,
12, 13, 14, 18, 19, 20 August, 9 September, 3& 4 December
2016: 22 March

CRIMINAL LAW – rape: Criminal Code, Section 347(1) – abduction: Criminal Code, Section 350(1) – unlawful deprivation of liberty: Criminal Code, Section 355(b) – robbery: Criminal Code, Section 386(1).

EVIDENCE – confessions – probative value depends on nature and extent of confession and circumstances in which it was made – need to exclude reasonable doubt that a confession is false.

EVIDENCE – accomplice evidence – danger of relying on evidence of a co-accused against another co-accused – necessary for trial judge to give warning of risks involved.

EVIDENCE – circumstantial evidence – principles to apply – absence of identification evidence

Six accused were each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery following an incident in a bush location in which three complainants (scientists conducting research) were allegedly held up with weapons, threatened with violence and robbed and one of the complainants was allegedly abducted, unlawfully deprived of her liberty and sexually penetrated without her consent. The State alleged that each of the accused either directly committed each of the offences or aided or assisted other accused in doing so. All pleaded not guilty. The three complainants gave evidence but were unable to identify the persons responsible for committing the offences and no other witness gave direct evidence of involvement of any of the accused. In seeking convictions, the State relied on three types of evidence: (1) confessions by the accused as to their individual involvement as set out in police records of interview and confessional statements; (2) evidence of their co-accused also being involved (accomplice evidence) as set out in police records of interview and confessional statements; (3) evidence of property stolen from the complainants or other suspicious property being found at the homes of some of the accused. All accused were arrested and remanded in custody soon after the alleged incident. During the course of the trial, before the close of the State's case, four of them escaped and have not returned to custody. The trial against all six accused continued in their absence. The two who remained in custody gave sworn evidence, both during a voir dire on the records of interview and confessional statements of all accused and in the trial proper. Their evidence was that they had been mistreated by the Police and forced to make false confessions and that they were somewhere else, doing something else, at the time of the incident. Their general defence was denial of any involvement; their specific defence was an alibi.

Held:

(1) It was not seriously contested and the Court accordingly found as undisputed facts that the events described by the three complainants in their evidence actually occurred and that all but one of the offences charged in the indictment were committed by a group of young men.

(2) Though none of the complainants could identify whether any of the accused was in that group of young men, and there was no other direct evidence of their involvement, it was open to the State to prove their involvement by reliance on confessional evidence, accomplice evidence and circumstantial evidence.

(3) Where a decision is made to admit into evidence a record of interview or confessional statement or any other evidence of an accused admitting to involvement in an offence, it remains necessary for the Court to make an assessment of the probative value of that evidence, taking into account the nature and extent of the admission or confession and the circumstances in which it was made. It is part of the Court's duty to afford the accused the full protection of the law, to exclude reasonable doubt that a confession is false.

(4) As the State was also relying on the evidence of accomplices, it was necessary to apply the principles for assessing accomplice evidence: the Court, as the tribunal of fact, must caution itself of the danger of convicting or making a finding of fact adverse to any of the accused based on the testimony (sworn or unsworn) of an accomplice.

(5) Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon afterwards in the possession of a person not the owner, a presumption of fact may be raised against that person, if he does not give a reasonable account of how he got the property, to the effect that he stole the property.

(6) As each of the accused raised an alibi (though only two gave evidence in support of it) it is necessary to consider the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, including: the burden of proof does not shift from the prosecution; in practical terms, the accused must lead some evidence of an alibi; it must be sufficiently convincing to create a reasonable doubt in the mind of the judge; how strong or convincing the alibi evidence must be, depends on the strength of the prosecution case, if the prosecution case is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the tribunal of fact as to the guilt of the accused.

(7) As the State based its case on circumstantial evidence (admissions by some accused of their own involvement, accomplice evidence and evidence of stolen or suspicious property being found at the homes of some of the accused) it was necessary to have regard to the principles about entering a conviction based on circumstantial evidence: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.

(8) Having applied the above principles and cautioned itself as to the risks involved in entering a conviction based on confessions, the evidence of accomplices and the doctrine of recent possession, the Court concluded that the State had presented a strong case against each of the accused, which was not tangibly dented by the evidence of the accused, bearing in mind that four of the accused gave no evidence and the evidence, including the alibi evidence, of the two who gave evidence was vague and uncorroborated. The only reasonable inference to draw from the proven facts was that each accused was involved in the incident and committed five of the six offences charged on the indictment.

(9) The State proved its case beyond reasonable doubt and all accused were found guilty of five of the six charges.

Cases cited:

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719
Bank of South Pacific Ltd v Anton Sekum (2011) N4588
Billy Nara v The State (2007) SC1314
Devlyn David v The State (2006) SC881
John Jaminan v The State (No 2) [1983] PNGLR 318
Onama Andrew v The State (2009) SC997
Paulus Pawa v The State [1981] PNGLR 498
R v Griffin [1974] PNGLR 72
The State v Ben Gregory CR No 170 of 2003, 12.03.07, unreported
The State v Boria Hanaio (2007) N4980
The State v Francis Laumadava [1994] PNGLR 291
The State v Justin Komboli (2005) N2891
The State v Mathew Lewaripa (2015) N6027
The State v Steven Tari Nangimon Garasai (2010) N4137
The State v Toipo Dimasi (2008) N3550
The State v William Nanua Kapris & 12 Others (2011) N4305
The State v William Nanua Kapris (2010) N4139

Dates

The events referred to in this judgment occurred in 2013 unless otherwise indicated.

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigations Division
Const – Constable
CR – Criminal file reference
Gen – General
GPS – Global Positioning System
Insp – Inspector
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PPC – Provincial Police Commander
ROI – record of interview
RPNGC – Royal Papua New Guinea Constabulary
Sat – Saturday
SC – Supreme Court judgment
Sgt – Sergeant
Snr – senior
Supt – Superintendent
Tue – Tuesday
UDL – unlawful deprivation of liberty
USA – Unites States of America

Glossary

The following people and places are referred to in the judgment.

People

Aweti Salir – First Const, State witness #6

Benjamin Freeman – complainant re count 6, State witness #3

Bulisa Iova – complainant re count 5, State witness #1

Bumae Zakang – Snr Const, State witness #13

Dr Alexandra Class – complainant re counts 1 to 4, State witness #2

Dr John Bolgna – Head, Obstetrics, Modilon Gen Hospital, State witness #12

Dr Tanja Ihle – doctor, Gaubin Rural Hospital
Franz Mongati – Snr Sgt, arresting officer, State witness #9
Hon Jim Kas MP – Governor, Madang Province
Jau Gamui – local guide, from Kevasop, State witness #4
Kabiang Lod – third accused
Kadaman Nanui – fourth accused
Kiura Yarti – First Const, State witness #14
Kulem Kisou – second accused
Lail Langly – Kabiang Lod's brother
Leo Mondo – villager, Kevasop village, State witness #8
Lukeson Saiam - local guide/field assistant – referred to in evidence
Luwi Siam – sixth accused
Maine Gamui – local guide/field assistant – referred to in evidence
Malau Lail – wife of Lail Langly
Martin Howley – Sgt, investigating officer, State witness #11
Mondo Ruang – referred to in evidence (a suspect, not charged)
Muluk Panaluan – fifth accused
Nikson Saian – villager, Kevasop, State witness #5
Sylvestar Kalaut – Chief Inspector, PPC, State witness #10
Timothy Damusuk – first accused
TS – village youth, informant
Wepu Kurim – First Constable, State witness #7
York Kupeng – Snr Const, referred to in evidence

Places

Duson – village, Karkar Island
Gamog – village, Karkar Island, accuseds' village
Gaubin Hospital – hospital, Karkar Island
Jomba police station – police station, Madang town
Karkar Island – island, Sumkar District, Madang Province

Kevasop– village, Karkar Island, closest village to crime scene
Kinim – police station, Karkar Island
Komoria– village, Karkar Island

Kubugam – boat stop, North Coast Road, Madang Province
Kulili – plantation, Karkar Island
Kulili – police station, Karkar Island
Kurum– village, Karkar Island
Madang – province, in which lies Karkar Island
Madang – town, provincial capital
Malas – village, Karkar Island
Marup– village, Karkar Island
Mom – village, Karkar Island
Mt Kanagio – mountain, Karkar Island, site of volcanic crater
Mt Uluman – mountain, Karkar Island
Pain Urung – village, Karkar Island
Sumkar – district of province in which Karkar Island lies

TRIAL

This was the trial of six accused each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery.

Counsel:

F K Popeu, for the State
A Meten, for the accused

1. CANNINGS J: The six accused are each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery. The charges relate to an incident on Karkar Island, Sumkar District, Madang Province on the morning of Friday 19 April 2013 in which three complainants (scientists conducting research) were held up with weapons, threatened with violence and robbed and one of the complainants was raped.

2. The State alleges that each of the accused either directly committed the offences or aided or assisted the other accused in doing so. All pleaded not guilty. They are:

• first accused, Timothy Damusuk;
• second accused, Kulem Kisou;
• third accused, Kabiang Lod;
• fourth accused, Kadaman Nanui;
• fifth accused, Muluk Panaluan;
• sixth accused, Luwi Siam.
  

3. The three complainants gave evidence but were unable to identify the persons responsible for committing the offences and no other witness gave direct evidence of the involvement of any of the accused. In seeking convictions, the State relied on three types of evidence:

(1) confessions of the accused as to their individual involvement as set out in police records of interview and confessional statements;

(2) evidence of their co-accused also being involved (accomplice evidence) as set out in police records of interview and confessional statements;

(3) evidence of property stolen from the complainants or other suspicious property being found at the homes of some of the accused.

4. All accused were arrested and remanded in custody within three weeks after the incident of 19 April 2013. The trial commenced in March 2015, almost two years after the incident. During the course of the trial, in July 2015, before the close of the State's case, four of the accused escaped from custody: the first, fourth, fifth and sixth accused. They have not been returned to custody. The trial against all six accused continued in their absence. I ruled that those who had escaped gave up their right under Section 37(5) of the Constitution to be present at their trial. The Section 37(5) right is not absolute. If an accused either escapes from custody or absconds while on bail, he can be tried in his absence (The State v Justin Komboli (2005) N2891, Bank of South Pacific Ltd v Anton Sekum (2011) N4588, The State v Mathew Lewaripa (2015) N6027).

5. The two who remained in custody (the second accused, Kulem Kisou, and the third accused, Kabiang Lod) gave sworn evidence at two stages of the trial. First, during a voir dire on the records of interview and confessional statements of all accused. This resulted in the admission into evidence of the records of interview and confessional statements of the four accused who had escaped and the refusal to admit such documents in respect of the two who remained in custody. Secondly, in the trial proper. Their evidence was that they had been mistreated by the Police and forced to make false confessions and that they were somewhere else, doing something else, at the time of the incident. Their general defence was denial of any involvement. Their specific defence was an alibi.

UNDISPUTED FACTS

6. A number of undisputed facts have emerged from the evidence:

• Two of the complainants, Dr Alexandra Class and Mr Benjamin Freeman, aged in their early 30s at the time of the incident, are married to each other. They are United States citizens. They are biologists. The third complainant, Mr Bulisa Iova, of a similar age, is a PNG citizen. He is also a biologist. He is employed by the PNG National Museum. Dr Class and Mr Freeman engaged Mr Iova to assist them conduct field research into the behaviour of birds in tropical environments, on Karkar Island, in April 2013.
  
• They spent 11 days near Mom village, then moved camp to a bush location near Kevasop village. They obtained permission from the village leaders before setting up their camp at the foot of Mt Kanagio. They engaged three villagers as local guides and field assistants. They spent two days there before the incident at the centre of this case occurred.
  
• They arose at 5.30 am on Friday 19 April and had breakfast. The three complainants left the camp at 6.00 am. They left the guides at the camp and headed along a bush track up the mountain, towards its volcanic crater. They asked the guides to follow them up the mountain, 45 minutes later.
  
• They reached the base of the crater at 7.30 am. Dr Class was 20 metres ahead of Mr Freeman and Mr Iova, out of their line of sight. She heard her husband shout three times a Spanish word meaning "Run!" Then two men holding guns approached her, in a menacing manner. They stripped her naked.
  
• They sexually penetrated her without her consent. Then other men arrived. They were armed with knives. All their faces were covered with ski masks. They also sexually penetrated Dr Class without her consent. Each of the perpetrators introduced his penis into the vagina of the complainant, such acts falling within the definition of "sexual penetration" in Section 6 of the Criminal Code. They also stole some personal items.
  
• Meanwhile members of that same group of men held up Mr Freeman and Mr Iova, stripped them naked, tied them up and stole personal items from them.
  
• It was a violent incident. All complainants were traumatised but their physical injuries were not serious. About 15 minutes after the incident their local guides arrived and assisted the complainants to Kevasop village. Later that day Dr Class underwent medical examination and treatment on Karkar Island. The complainants were taken to the mainland at Madang.
  
• A Police operation was mounted the next day, Saturday 20 April and an investigation team was dispatched from Madang town to Karkar Island.
  
• The Police, acting on information received from various Karkar Island residents, compiled a list of six suspects, all young men who lived at Gamog village. The Police staged a dawn raid on Gamog village on Tuesday 30 April, apprehending the six accused and seizing a number of items allegedly stolen from the complainants.
  
• On the same day, 30 April, four of the accused were taken by boat to the mainland and detained in custody. Two of the accused did not fully cooperate with the Police and there was a bit of trouble detaining them, until 5 or 6 May, when they were also apprehended and taken to Madang.
  
• In the period from 31 May to 12 June all accused were subject to formal police interviews. Some were recorded by the Police as having made separate confessional statements. Each record of interview, prepared by the Police, shows each accused as having made substantial admissions as to his involvement in the incident of 19 April.
  
• Each accused has since alleged that he was forced to make false admissions, and that he was threatened and subject to human rights abuses at the hands of the Police. Those allegations were grounds of objections to the admission into evidence of all the records of interview and confessional statements. Those objections were determined by the Court following a voir dire hearing.
  

THE INDICTMENT

7. Each of the accused is charged with six offences:

• count 1: rape, in circumstances of aggravation, contrary to Sections 347(1) and (2) of the Criminal Code, committed against Dr Class;
  
• count 2: abduction, contrary to Section 350(1)(a)(i) of the Criminal Code, committed against Dr Class;
  
• count 3: unlawful deprivation of liberty, contrary to Section 355(a) of the Criminal Code, committed against Dr Class;
  
• count 4: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Dr Class;
  
• count 5: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Mr Iova;
  
• count 6: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Mr Freeman.
  

COMMISSION OF OFFENCES

8. I find that the State has proven beyond reasonable doubt – and it was not seriously disputed by the defence – that five of the six offences charged on the indictment were actually committed at the time and place and in the manner alleged. The State has, for two reasons, failed to prove count 2 (abduction). First, the drafting of this charge is not compliant with the Criminal Practice Rules 1987. It does not charge one of the elements of the offence under Section 350(1)(a)(i) of the Criminal Code: that the accused had an intention to "carnally know" the complainant. Secondly, I am not satisfied on the evidence that the complainant was "taken away", which is another element of the offence.

9. As to count 1 (rape), the two elements of the crime of rape under Section 347(1) of the Criminal Code have been proven, in that the perpetrators, whoever they were:

• sexually penetrated the complainant, Dr Class;
• without her consent (The State v Steven Tari Nangimon Garasai (2010) N4137).
  

10. The offence was committed in circumstances of aggravation under Section 347(2) of the Criminal Code as the persons who committed the offence were in company with each other and armed with dangerous weapons, which are aggravating circumstances under Sections 349A (a) and (b) of the Criminal Code.

11. As to count 3 (unlawful deprivation of liberty), the three elements of the offence under Section 355(a) of the Criminal Code have been proven, in that the persons who committed this offence:

• detained the complainant, Dr Class;
• against her will;
• unlawfully (The State v William Nanua Kapris & 12 Others (2011) N4305).
  

12. As to counts 4, 5 and 6 (armed robbery, which is more correctly called robbery in circumstances of aggravation), the four elements of robbery (as defined in Section 384 for the purposes of Section 386(1) of the Criminal Code) have been proven, in that the persons who committed these offences, in relation to each of the three complainants:

• stole things from them;
• threatened to use actual violence against them;
• in order to obtain the things stolen;
• immediately before the time of stealing (The State v Boria Hanaio (2007) N4980).
  

13. The offences were committed in circumstances of aggravation as the perpetrators were armed with dangerous weapons (guns and knives) and in company with each other, which are aggravating circumstances under Section 386(2) (a) and (b) of the Criminal Code.

THE CRITICAL ISSUE: DID ANY OF THE ACCUSED COMMIT THE OFFENCES AT MT KANAGIO ON 19 APRIL 2013?

14. Was any of the accused a member of the group of young men who committed the offences? Did any of them directly commit the offences or aid or assist others in committing the offences? Resolution of these issues requires:

• a summary of evidence for the State;
• a summary of evidence for the defence;
• an assessment of the probative value of each of the three categories of evidence produced by the State;
• an assessment of the defence evidence, in particular the alibis;
• a formal determination, in relation to each accused, of the question whether he committed any one or more of the five offences, taking into account that the State's case is based on circumstantial evidence.
  

EVIDENCE FOR THE STATE

Oral evidence

15. Fourteen witnesses gave oral testimony, as summarised in the following table. Twelve of the witnesses gave evidence in person in the National Court at Madang.

16. Dr Class and Mr Freeman gave their evidence, via Skype, from the USA; the link to the courtroom in Madang being set up and operated by technical officers of Divine Word University of Madang. On application by the State, and against the objection of the defence (on the ground of unfairness to the accused), I made a special measures order under Section 37B(1)(b) and (c), and (2)(h) of the Evidence Act, permitting the evidence of Dr Class and Mr Freeman to be given by means of those facilities. In determining that those special measure were necessary I considered all the matters set out in Section 37A and 37B(3), (4) and (5) of the Evidence Act. Sections 37A and 37B, which are contained in Division III.3 (special measures for vulnerable and intimidated witnesses) are set out in full in an appendix to this judgment.

TABLE 1: ORAL EVIDENCE FOR THE STATE

Voir dire

17. Mrs Meten, counsel for each of the accused, objected to the admission into evidence of the record of interview (Tok Pisin original and English translation) of each accused. Those records stated that each accused made admissions about his involvement in the incident of 19 April. Mrs Meten also objected to the admission into evidence of the confessional statements of 4th accused, Kadaman Nanui, and 6th accused, Luwi Siam. The grounds of objection in each case were that the admissions had been made involuntarily. It was claimed that each accused was threatened and tortured and intimidated and admitted to a crime in which he played no part, due to ignorance and fear.

18. A voir dire (a separate hearing within the trial to determine the admissibility of contested evidence) was conducted. Evidence for the State was given by Snr Sgt Mongati, Chief Supt Kalaut and Sgt Howley. Evidence for the defence was given by 2nd accused, Kulem Kisou, and 3rd accused, Kabiang Lod. No evidence was given by the other four accused as they had, by the time the voir dire was conducted, in August 2015, escaped from custody. The trial was proceeding without them.

19. In determining the objections, I took the approach set out in The State v William Nanua Kapris (2010) N4139. An involuntarily statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means he was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistences or pressure, it cannot be voluntary. Likewise if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 (confessions induced by threats) of the Evidence Act, which states:

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.

20. As to who bears the onus of proof, the rule operates in this way. First, the accused must adduce evidence that on the balance of probabilities supports the allegation of involuntariness. If that burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible. If the burden is discharged, the onus shifts to the State to negate the allegations beyond reasonable doubt.

21. I ruled that in the case of the four accused who had escaped, they had not adduced any evidence in support of the allegations of them making involuntary admissions. Therefore their objections failed. Their records of interview were admitted into evidence, as were the confessional statements of 4th accused, Kadaman Nanui, and 6th accused, Luwi Siam.

22. As for the two accused who gave evidence, 2nd accused, Kulem Kisou, and 3rd accused, Kabiang Lod, I ruled that they each adduced evidence that on the balance of probabilities supported the allegation of involuntariness. The onus then shifted to the State to negate the allegations beyond reasonable doubt. That onus was not discharged. Their objections were sustained. Their records of interview were not admitted into evidence.

Exhibits

The following exhibits were admitted into evidence on application by the State.

TABLE 2: EXHIBIT LIST

EVIDENCE FOR THE DEFENCE

Two witnesses gave evidence for the defence.

TABLE 3: ORAL EVIDENCE FOR THE DEFENCE

ASSESSMENT OF PROBATIVE VALUE OF THREE CATEGORIES OF EVIDENCE PRODUCED BY THE STATE

Admissions and confessions

23. Mr Popeu, for the State, emphasised that four of the six accused admitted to their involvement in the incident of 19 April:

• 1st accused Timothy Damusuk, made admissions in his record of interview [exhibits 21A, 21B]
  
• 4th accused, Kadaman Nanui, made admissions in his record of interview [exhibits 22A, 22B] and in a confessional statement [exhibit P23]
  
• 5th accused, Muluk Panaluan, made admissions in his record of interview [exhibits 24A, 24B]
  
• 6th accused, Luwi Siam, made admissions in his record of interview [exhibits 25A, 25B] and in a confessional statement [exhibit P26].
  

24. None made complete admissions. In their formal interviews all denied having sex with the complainant Dr Class. (However, in his confessional statement the 4th accused, Kadaman Nanui, said he did have sex with her.)

25. Defence counsel Mrs Meten argued that the probative value of all the admissions was lessened by the circumstances in which the records of interview and confessional statements were prepared. I agree that where a decision is made to admit into evidence a record of interview or confessional statement or any other evidence of an accused admitting to involvement in an offence, it remains necessary for the Court to make an assessment of the probative value of that evidence. The Court must consider the nature and extent of the admission or confession and the circumstances in which it was made. It is part of the Court's duty to afford the accused the full protection of the law, to exclude reasonable doubt that a confession is false (Billy Nara v The State (2007) SC1314, Onama Andrew v The State (2009) SC997).

26. Having done that, I consider that the confessional statements of Kadaman Nanui and Luwi Siam are only of moderate probative value, because of the unusual circumstances in which they were made before Chief Supt Kalaut. However the four records of interview are of high probative value. They show that four of the accused made substantial admissions as to the direct or indirect involvement in commission of the three robbery offences. The fact that they denied committing the offence of rape is not significant as they have each admitted involvement in planned criminal activity. They have also given evidence of a motive: they were angry with the complainants for coming on to their land, allegedly without permission.

Accomplice evidence

27. Mr Popeu submitted that there is evidence, in the records of interview that have been admitted into evidence, of the involvement of all accused in the incident of 19 April. He points out that, as well as admitting their own involvement in the incident of 19 April, the 1st, 4th, 5th and 6th accused, in their records of interview, stated that each of the other accused was involved, including the 2nd and 3rd accused. They did not give the names of any other persons.

28. This is significant, particularly in relation to the 2nd accused, Kulem Kisou, and the 3rd accused, Kabiang Lod, as their purported admissions, contained in their records of interview, are not in evidence. It is therefore a useful exercise to set out what is stated about their involvement in the records of interview that have been admitted into evidence.

TABLE 4: ACCOMPLICE EVIDENCE RE 1ST ACCUSED & 2ND ACCUSED

29. Is it permissible to use the evidence of one accused to implicate another accused? Mr Popeu submitted that it was, especially in this case where there are multiple accused saying the same thing about the involvement of others.

30. Mrs Meten submitted that the evidence of each accused against every other accused should be excluded, for two reasons. First, all statements made in the records of interview were made involuntarily, due to fear and intimidation. Secondly, the rules regarding accomplice evidence make it too dangerous to rely on the admissions in the records of interview against any accused other than the interviewee.

31. I reject Mrs Meten's first argument as the issue of involuntariness has been settled by the Court's decisions arising from the voir dire: four records of interview and two confessional statements were admitted into evidence. I have already indicated that I am placing little weight on the confessional statements. However, the evidence constituted by the records of interview is of high probative value, at least in so far as the interviewee makes admissions as to his own involvement.

32. Mrs Meten's second argument requires closer consideration. I agree that this is a case where the State is relying on the evidence of accomplices to implicate each of the accused. The Court therefore has to apply the conventional principles on accomplice evidence: it must caution itself of the danger of convicting or making a finding of fact adverse to any of the accused based on the testimony (sworn or unsworn) of an accomplice, particularly those parts of it that are uncorroborated. This caution is administered to take account of the risk that an alleged accomplice might fabricate evidence against an accused to get even or exonerate himself or shift blame to the accused (The State v Francis Laumadava [1994] PNGLR 291, Abraham Saka v The State (2003) SC719).

33. I therefore warn myself of the danger of making a finding that any of the accused was involved in the incident of 19 April based on the statements of other accused included in the four records of interview that have been admitted into evidence. With that danger in mind, I note the following:

• the statements are consistent in that each interviewee names each of the other five accused and does not name any other person as being involved;
  
• each record of interview has been admitted into evidence, following a voir dire, and I have assessed each record of interview as being of high probative value;
  
• this is not a case of the accomplice evidence being uncorroborated, as there is corroboration in the form of (a) the admissions of personal involvement in each of the four records of interview that have been admitted into evidence and (b) circumstantial evidence provided by some of the stolen property being found in the possession of some of the accused.
  

34. After taking account of those considerations I have decided that it is safe and fair to use the accomplice evidence contained in each of the four records of interview against all other accused, including the 2nd and 3rd accused.

Evidence of stolen or suspicious property in possession of accused

35. Mr Popeu submitted that there is evidence that some of the property stolen from the complainants was found in the possession of some of the accused soon after the incident of 19 April, and that this amounts to strong circumstantial evidence that implicates the accused, especially those who held the property. There is also some property, not stolen, but suspicious, that implicates the 4th accused. The property falling into those categories, which has been admitted into evidence, is summarised in column 2 of the table below, together with the name of the accused (column 1) in whose possession the property was found.

TABLE 5: STOLEN OR SUSPICIOUS PROPERTY IN POSSESSION OF ACCUSED

36. Before assessing the probative value of that evidence, I point out that, although defence counsel quizzed the Police witnesses during cross-examination about whether they had search warrants authorising their search of the houses of the accused (they had none) and suggested that there was a question-mark over whether the property had been lawfully seized, there was no formal objection to admission into evidence of these items. I considered whether I should intervene by requiring both counsel to make submissions on their admissibility. I decided not to do so as I was satisfied that the searches of the houses and the surrounding area and seizure of properties, though in some cases conducted at short notice, were conducted with the consent and assistance of the owners and occupiers of the houses: the family members of the accused concerned. I have concluded that the properties have been lawfully seized and properly admitted into evidence.

37. Mrs Meten submitted that the Court should give little weight to the evidence of stolen or suspicious property found in possession of the accused. Mrs Meten highlighted that:

• the 1st accused, Timothy Damusuk, had no such property in his possession;
  
• the 2nd accused, Kulem Kisou, gave a reasonable explanation for the stolen property being in his possession: it was given to him by Luwi Siam, on behalf of two other boys, at midday, on 19 April;
  
• the 3rd accused, Kabiang Lod, gave a reasonable explanation for the stolen property being in his possession: on 21 April at the sports field, 4th accused, Kadaman Nanui, gave him a mountain bag and some other items and told him that they had come from Mondo Leo and TS, so he took the items to his house to hold for Kadaman;
  
• there was no evidence linking the homemade guns and rice bag in the possession of 4th accused, Kadaman Nanui, to the incident of 19 April;
  
• the 5th accused, Muluk Panaluan, had no such property in his possession;
  
• only one stolen item was found in the possession of 6th accused, Luwi Siam.
  

38. My assessment of those submissions is as follows.

The 1st accused, Timothy Damusuk, had no stolen or suspicious property in his possession.

The 2nd accused, Kulem Kisou, had seven items stolen in the incident of 19 April in his possession, including Dr Class's blue backpack mountain bag. At this juncture the doctrine of recent possession is relevant. It was explained by Prentice J in R v Griffin [1974] PNGLR 72 (followed by Lay J in The State v Ben Gregory CR No 170 of 2003, 12.03.07, unreported, and by Davani J in The State v Toipo Dimasi (2008) N3550) in these terms:

Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, a presumption of fact may therefore be raised against that person to the effect that he stole the articles, where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused on being questioned has given an explanation of his possession which is admittedly untrue... the presumption of guilt does arise. This is a presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal.

39. The accused's explanation for the stolen property being in his possession is critical. Here, it is very limited: he explains only his possession of Dr Class's blue backpack. He has given no explanation of the other six stolen items being in his possession. And his explanation is very vague: the backpack was given to him by another accused, Luwi Siam. The whole explanation is unsatisfactory. The presumption arises that he stole the items in the incident of 19 April.

40. The 3rd accused, Kabiang Lod, had three stolen items in his possession, including Mr Freeman's green backpack. I consider his explanation about being given the backpack by the 4th accused, Kadaman Nanui, on 21 April, is limited, vague and uncorroborated. The whole explanation is unsatisfactory. The presumption arises that he stole the items in the incident of 19 April.

41. As to the 4th accused, Kadaman Nanui, I agree that there was no evidence linking the homemade guns and rice bag found in his possession to the incident of 19 April. Nevertheless having homemade guns in his possession 11 days after the incident, and having them hidden in a rice bag close to his home, gives rise to suspicion about his motives and the use to which such items had been put, calling for an explanation from the accused. He gave no explanation, as he had absented himself from the trial by the time his opportunity to explain arose. The presumption arises that he was involved in the incident of 19 April and that those guns were used by the accused to threaten the complainants.

50. The 5th accused, Muluk Panaluan, had no stolen or suspicious property in his possession.

51. The 6th accused, Luwi Siam, had one stolen item in his possession: Mr Freeman's Garmin GPS device. He gave no explanation, as he had absented himself from the trial by the time his opportunity to explain arose. The presumption arises that he stole the item in the incident of 19 April.

ASSESSMENT OF PROBATIVE VALUE OF DEFENCE EVIDENCE

52. As each of the accused provided an alibi (though only two gave evidence in support of it) it is necessary to apply the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, including:

• the burden of proof does not shift from the prosecution;
• in practical terms, the accused must lead some evidence of an alibi;
• it must be sufficiently convincing to create a reasonable doubt in the mind of the judge;
• how strong or convincing the alibi evidence must be, depends on the strength of the prosecution case: if the prosecution case is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the tribunal of fact as to the guilt of the accused.
  

53. On the last point, I indicate, prior to making a final determination of the guilt of any of the accused, that it appears that the State has presented a strong case against each of the accused. The alibi evidence therefore needs to be reasonably strong.

54. The alibi evidence is either non-existent or poor. The 1st, 4th, 5th and 6th accused have not given evidence. As for the 2nd accused, Kulem Kisou, his alibi – being at Gamog with his grandfather mending a fence on the morning of 19 April – is vague and uncorroborated. He was an unimpressive witness. His demeanour was poor and his responses to questions in cross-examination were evasive and unconvincing. As for the 3rd accused, Kabiang Lod, his alibi – being at the sports field at Gamog with his elder brother and the brother's wife, cooking food for their sports group, on the morning of 19 April – is vague and uncorroborated. He was an unimpressive witness. His demeanour was poor and his responses to questions in cross-examination were evasive and unconvincing.

55. Mr Popeu made a telling point in submissions: the trial commenced in March 2015, almost two years after the incident of 19 April 2013, the trial took a long time to complete – the Court heard evidence from March to September 2015, the Court liberally granted adjournments – and despite all that time, no one from Karkar Island came forward to support the alibis or give evidence in support of any of the accused. This supports the State's argument that these were false alibis.

FORMAL DETERMINATION OF WHETHER ANY OF THE ACCUSED COMMITTED ANY OF THE OFFENCES

56. Before making a formal determination of whether any of the accused committed any of the offences with which they have been charged, I pause to note this feature of the State's case: there is no direct oral testimony by any person who witnessed commission of the offences. Though the confessional evidence and the accomplice evidence can arguably be regarded as direct evidence, I think it is better (as it is unsworn evidence and it comes from no person other than an accused) to place it, together with the evidence of stolen and suspicious property being found in the possession of some accused, in the category of circumstantial evidence. It is prudent to do this as part of the continuing process of affording each of the accused, even those who have escaped, the full protection of the law.

57. I will apply the principles governing circumstantial evidence, as explained by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

• the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
  
• to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.
  

58. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

• do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.
  

First accused, Timothy Damusuk

59. The proven facts are:

• he admitted his involvement in the incident of 19 April;
• three of his co-accused stated that he was involved in the incident;
• he claimed an alibi, but brought no evidence in support of it.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

Second accused, Kulem Kisou

60. The proven facts are:

• three of his co-accused stated that he was involved in the incident of 19 April;
• stolen property was found in his possession, soon after the incident of 19 April;
• he gave a false alibi.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

Third accused, Kabiang Lod

61. The proven facts are:

• three of his co-accused stated that he was involved in the incident of 19 April;
• stolen property was found in his possession, soon after the incident of 19 April;
• he gave a false alibi.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

Fourth accused, Kadaman Nanui

62. The proven facts are:

• he admitted his involvement in the incident of 19 April;
• three of his co-accused stated that he was involved in the incident;
• he had homemade guns in his possession, soon after the incident of 19 April;
• he claimed an alibi, but brought no evidence in support of it.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

Fifth accused, Muluk Panaluan

63. The proven facts are:

• he admitted his involvement in the incident of 19 April;
• three of his co-accused stated that he was involved in the incident;
• he claimed an alibi, but brought no evidence in support of it.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

Sixth accused, Luwi Siam

64. The proven facts are:

• he admitted his involvement in the incident of 19 April;
• three of his co-accused stated that he was involved in the incident;
• he had stolen property in his possession, soon after the incident of 19 April;
• he claimed an alibi, but brought no evidence in support of it.
  

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences.

VERDICTS

The following verdicts are entered:
.
TABLE 6: VERDICTS

Verdicts accordingly,
_______________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

APPENDIX: SECTIONS 37A AND 37B OF THE EVIDENCE ACT

37A. Interpretation.

For the purposes of this Division—

"child" means a person under the age of 18 years;

"complainant" means a person against whom an offence is alleged to have been committed;

"crime of violence" means any offence against Division V.1 (Assault and Violence to the Person), Division V.3 (Homicide), Division V.4 (Offences Endangering Life or Health) and Division V.5 (Assaults) of the Criminal Code;

"sexual offence" means any offence against Division IV.2 (Offences Against Sexual Immorality), Division IV.2A (Sexual Offences Against Children), Division IV.2B (Commercial Sexual Exploitation of Children) and Division V.7 (Sexual Offences and Abduction) of the Criminal Code.

37B. Special measures order.

(1) An order under Subsection (2) shall be made where a witness in a criminal proceeding is—

(a) under the age of 18 years at the time of the hearing; or

(b) the complainant in a proceeding relate to a sexual offence; or

(c) the complainant in a proceeding relate to a crime of violence.

(2) If, in the opinion of the Court, the quality of a witness's evidence would likely to be diminished by reason of fear of distress in connection with testifying in the proceedings, the Court shall, subject to Subsection (3) and (4), order that one or more of the following special measures be used for the giving of evidence by that witness:—

(a) the use of a screen or other arrangement to prevent the witness from seeing the accused;

(b) the presence of a support person of the witness' choosing seated with the witness when he or she is giving evidence; or

(c) dispensing with the wearing of wigs and robes while the witness is giving evidence;

(d) planned seating arrangements for people who have an interest in the proceedings, including the level at which they are seated and the people in the witness line of vision;

(e) the adjournment of the proceedings or any part of the proceedings to other premises;

(f) the exclusion from the court, while the witness is giving evidence, of all or any persons without an interest in the proceedings;

(g) the examination of the witness through an intermediary, who shall communicate and explain—

(i) to the witness, the questions put to the witness, in a language appropriate to the witness' age and development; and

(ii) to the court, the answers given by the witness in reply;

(h) permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom.

(3) In determining what special measures are appropriate, the Court shall consider—

(a) the availability of any necessary equipment or facilities; and

(b) the age of the witness; and

(c) the opinion of the witness; and

(d) which of the special measures would be likely to maximize as far as practicable the quality of the witness's evidence.

(4) A judge need not make an order under Subsection (1) where he determines that to do so is contrary to the interests of justice.

(5) In determining whether the use of special measures is contrary to the interests of justice, the judge shall consider—

(a) the nature and alleged circumstances of the offence to which the proceedings relate; and

(b) the right of the accused to a fair trial; and

(c) whether the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings; and

(d) any behaviour towards the witness on the part of the accused, or members of the family or associates of the accused; and

(e) whether the use of special measures would cause unnecessary delay in the proceedings.

(6) The use of special measures does not in any way affect the weight to be given to any evidence in a criminal proceeding.