State v Avia [2023] PGNC 217; N10367 (26 June 2023)

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CRIMINAL LAW – Trial- Armed Robbery – unlawful use of motor vehicle – five persons involved but only accused and two others identified – defence of alibi – Verdict of guilty

Papua New Guinean Cases
Biyang v Liri Haro [1981] PNGLR 28
Garitau Bonu & Rosanna Bonu v The State (1997) SC528
John Jaminan v. The State (N0.2 ) [1983] PNGLR 318
John Beng v The State [1977] PNGLR 155
Paulus Pawa v. The State [1981] PNGLR 498
State v Angosiwen (No 1) [2004] PNGLR 2
The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48
The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2245
The State v Peter Malihombu [2003] PGNC124, N236
The State v. Tauvaru Avaka & Anor (2000) N2024

1. LINGE AJ: This is my ruling on verdict against the accused, Max Meakoro Avia for armed robbery and unlawful use of motor vehicle. On the 23 May 2023 the State presented one indictment against the accused with one (1) count for armed robbery under section 386 (1) (2) (a) (b) & (c), of the Criminal Code.

2. The State alleges that on the 8 January 2019 between 9.00am and 9:30am at Arere Street, June valley, NCD, the accused Max Meakoro Avia and his accomplices robbed Ruth Philip and stole a white Toyota Harrier registration BFA-277.

3. The complainant with her passengers slowed down at a speed bump near the Ororo Primary School, when the accused and accomplices armed with factory made pistol and home-made gun held them up. A warning shot was fired into the air. The accused told the complainant to get out and his accomplices boarded the car and sped off towards the main road.

4. The complainant and two other victims, husband and wife immediately went to the nearest Cop Shop and reported the matter. The State says that when the accused with his accomplices robbed Ruth Philip and stole the Toyota Harrier and personal items, he contravened section 386 (1)(2)(a)(b)(c) and section 383 (2) of the Criminal Code and therefore these charges are brought against him. The State invokes section 7 and 8 of the Criminal Code.

Arraignment
5. On arraignment the accused pleaded not guilty, and the matter then proceeded to trial.

6. The only issue is whether the accused was there and participated in the armed robbery and unlawful use of a motor vehicle?

7. The State tendered the following documents by consent which are marked as exhibits:

No	Document Name	Date	No of Pages	Language	Exhibit No
1	Statement of George Kaman	17^th/05/2019	2	English	S1
2	Statement of Kemos Konga	14^th/06/2019	2	English	S2
3	Statement of Waddell Matane	1^st/04/2019	1	English	S3
4	Statement of Kovson Kairi	15^th/04/2019	1	English	S4
5	Statement of Frank Iamau	17^th/05/2019	2	English	S5
6	Record of Interview	17^th/05/2019	4	Pidgin	S6 (i)
7	Record of Interview	17^th/05/2019	4	English	S6 (ii)
8	Registration Details of the Toyota Harrier	18^th/12/2017	1	English	S7
9	Motor Vehicle Inspection Report	5^th/01/2018	2	English	S8
10	Photographs (8) eight of them.	8^th/01/2019 & 16/05/2019	4	English	S9 (i), S9 (ii), S9 (iii) S9 (iv) S9 (v) S9 (vi) S9 (vii) S9 (viii)
11	Sketch Map of the Crime Scene	17^th/06/2019	1	English	S10
12	Section 96 of the Accused	21^st/06/2019	4	English	S11

8. The State called Ruth Philip and Jackson Lasaro who both gave oral sworn evidence.

9. Ruth Philip is 40 years old from Gulf Province. She is married with 2 children and resides at their family home at June Valley for 20 years. She is employed as an Administration officer with the PNG Trade Union for 21 years.

10 She testified that on the 8 of January 2019 between 9am and 9:30am she was driving her Toyota Harrier Reg.No. BFA-277 near Ororo Primary School, June Valley, Port Moresby when she was held up. Accompanying her in the car were Jackson Lasaro on her left and his wife Mary Lasaro at the back seat.

11. At the speed hump near the school, she slowed down and instantly a warning gunshot was fired and two persons one Christopher Serepikus Kiripi came to her and pointed a gun at her and the other, Max Meakoro, the accused went to the off-side seat and held up Jackson Lasaro. The accused and Serepikus Kiripi then ordered the three occupants out and the accused forced Jackson Lasaro and wife to lie face down on the road and Christopher forced her to the drain and told her to lie down as they drove off in her car. She said she knows the suspects personally as they live at the same street and location. She got up from the drain and Jackson Lasaro from the road and they got a taxi and went to the Cop Shop and reported the matter and were referred to the Waigani Police Station.

12. At around 11:30am and 12pm while at the Waigani Police Station she received a call from the Tokarara Cop Shop police that her vehicle was recovered at Maria Street in Tokarara. A police forensics officer got the spare key from Ruth Philip and went and brought the vehicle to the Waigani Police Station.

13. Ruth Philip told the Court that at around 2 pm after the police completed their crime reports, they then accompanied the police to Gevena Ladies Street, June Valley to seek out the suspects. First, they went to the residence of Christopher Serepikus, but he was not there, so they went over to the accused’s house. Max was at the house at that time, and Ruth identified him. Max’s, family tried to defend him by saying that he was in the house all the time. The police did not arrest him but instead due to the presence of Jackson Lasaro whom Police knew as a community leader, told Max to get the other 4 suspects and to come over to the Tokarara Police Shop near the TST supermarket at 5pm to sort it out.

14. At around 3:30 pm Ruth Philip in the company of the Lasaros, went to the Tokarara Police shop and then to BSP bank near Holiday Inn and put a “Stop” to her bank account following theft of her bank cards, among other things. At around 4:30pm after she finished from the bank, she received a mobile call from her father that Max Avia and his family had gone to their house and started an argument with her family. She then called the police for help, and they told her to go to the house. When they reached their home, the Avia family forcefully entered her premises and attacked them. She said the accused was present and he came and punched her brother, and they exchanged fist. Jackson Lasaro was at the gate and told them not to fight but to stay still and to let the police come and they can sort it out at 5pm but they didn’t listen to him. Her father was trying to stop them from fighting when Max Avia’s big brother punched his father and he fell and died. After that they all ran away.

15. She further testified that on the 8 of January 2019 at the time of the robbery and theft, it had rained, and the crimes were committed when the rain stopped. She testified that the suspects were not wearing any face mask. Christopher was holding a factory-made gun and Max was holding a home-made gun. They got them out of the car as stated earlier, robbed them of their properties and drove away with the car. Other properties stolen were her mobile phone, bank cards, ID cards, grade 10 certificate of her daughter. She confirms that she knows Max Meakoro Avia, and he is from Gulf and Central Province. Then she pointed to the accused on the accused dock as the person who held them up.

16. She said during cross examination that there were others involved in the robbery incident, but she identified Christopher Serepikus and Max Meakoro Aiva who approached and held them up. When put to her that she did not see Max Meakoro Avia she said she saw him. Defence Counsel put to Ruth that in her unsworn Statement already tendered into evidence she didn’t identify Max Meakoro. She told the Court that she did mention Max in paragraph 2 of her unsworn Statement. She confirmed that she identified Max as the one who pointed a gun at Jackson Lasaro. She confirmed going to Gevena Street, Ladies Street to Christopher’s house and then to Max’s house to identify him and they did so, and that was the direction from the police and not to arrest him, and for them to meet at her house to mediate it. She confirmed that Max’s family went to her house twice. The second time at 5pm was when they forcefully entered her premises causing a fight to ensue resulting in her father receiving a punch on his chest and his death.

17. Jackson Lasaro is 40 years old and his from Central Province. He is married with 8 children. He told the Court that he lived at June Valley with his family for 37 years. He works as Manager Kerema, Gulf Province with the National Housing Cooperation for 15 years. He testified that on the 8 of January 2019 between 9am and 9:30 am he was in a silver vehicle, registration number BFA-277 driven by Ruth Philip. He was sitting at the off-side seat and his wife Mary sat at the back seat.

18. He confirmed the robbery and theft incident at the hump near the main gate to Ororo Primary School. He testified that they were held up by “criminals” who he identified as those living at the same community. He saw Christopher Serepikus holding a factory-made gun pointing at Ruth Philip on the driver side of the vehicle and Max Meakoro Avia with a home-made gun came to where he sat and pointed the gun at him. The accused was not wearing any facial cover. Max forced him and his wife from the car and made to lie face down on the surface of the road. When they approached them at the car, he said to them “Christopher and Mea” (Mea he was referring to the accused Max Meakoro Avia) that it’s them, but they didn’t listen to him. They then got into the car and drove away.

19. He testified that he knows Max Meakoro and that he is from East Kerema in Gulf Province. He pointed to the accused in the accused dock when asked to identify the accused in the court room. He said apart from stealing the car they also stole two mobile phones, a laptop for the children and his mobile phone and other items. Those items were never recovered.
20 He confirmed him and wife accompanying Ruth Philip to the Tokarara Cop Shop, to Waigani Police Station where reporting formalities were completed and together with police personnel went to the suspects’ houses at June Valley. They first went to the residence of Christopher Serepikus. He was not there so they proceeded to Max Meakoro Avia’s house at around 3pm. At the residence, the family of Max denied any knowledge. Max was there and he identified him. He testified that the police told Max and family to come for a mediation at 5pm at Ruth Philip Moro’s house.

21. Thereafter they proceeded to BSP for Ruth to put a “Stop” order on her account. Whilst there, he heard from Ruth that the Avia family mobilized and went to Ruth’s house, a distance of 20-30 meters. As soon as they arrived at Ruth’s house, the Avia’s family came a second time and fought with them. He tried stopping them, but they didn’t listen, and as a result Mal Avia, Max’s elder brother attacked and punched Ruth’s father with his fist and he fell and died.

22. In cross-examination he did not deviate from his testimony and add that he identified Christopher Serepikus, Max Meakoro Avia and Waula out of 5 as they were his boys in the community. Defence Counsel showed him his unsworn Statement and he confirmed to the Court that he identified Max at his house. He further stated that when they went to Max’s house, his family said he was not there, but he saw him and identified him at the veranda of the house, and they said they will sort it out at Ruth’s house by mediation. The Meakoro’s went to Ruth’s house and started an argument and so they called the police for assistance. When they arrived at Ruth’s house after the bank, the Avias were there, and a fight broke out. When put to him that the accused was not there at Ruth’s house, he said Max was there and that he saw him on the veranda. He told them that they should be here doing mediation and not fighting.

23. The defence called the accused Max Meakoro Avia and Bobby Avia as his witnesses. Three (3) others, Bianca Avia, Virgil Avia and George Naime were not available to give oral evidence but their unsworn statements were tendered.
Max Meakoro Avia

24. The accused confirmed to the Court that he is Max Meakoro Avia from Miaru village Gulf Province and is 29 years old. He says on the 8 of January 2019, he was at the house at Gevena Ladies Street, June Valley. He says at around 6 am he woke up and helped George Naime to fry flour for breakfast. They finished around 9 am and got his laptop and went into his room to watch movie with his brother Omoro Avia. He says it had showered and then it finished. He says that after watching he slept and around 2pm police came to their yard. He saw Ruth Philip, Jackson Lasaro, his wife and the street people. The police told him to bring himself and his brothers to Ruth Philip’s house so they can have a meeting.

25. He told the Court that he felt bad, so he went with his family to Ruth’s house to find out why they came to their house. At Ruth’s house they were told that she and other victims were not at the house, so they returned to their house but came again at 5pm. He said he was frustrated so they were arguing and then they fought. He said apart from the complainant were her brother and other people. Then they went to their house and police came and arrested him and his brother, cousin and took them to the Waigani police station and then to Boroko Police Station where they were locked and charged for unlawful entering premises.

26. In cross-examination the accused confirmed his identity and originality as stated above. He also confirmed that he lives at the same street with Jackson Lasaro and Ruth Philip Moro and that he knows Jackson Lasaro as a community leader in the area they live in, and that Jackson had lived there for some time. When asked about Ruth Philip he said he does not know her but later he said he knows her as they came to his house and then he went to their house at 5pm. He confirmed that he knows her by face. When asked about the armed robbery incident in the morning on the 8 of January 2019 between 9am and 9:30am at Ororo Primary school he said he does not have any idea. When it was put to him that Jackson and Ruth identified him as one of the suspects who held them up and that he pointed the home-made gun to Jackson and ordered him out with the others he said no. When put to him that he was seen there at the scene not wearing any mask, he said it wasn’t him. When put to him that it was him there and he was not with his family he said no.

27. He confirms that at 2pm the complainants and the police came to his house. When asked if he was there, he said no, but when put to him that he just told the court they came to his house he said he was there and then when put to him that they identified him he said no but when put to him that he was at the veranda, and they identified him he said yes, he was there. When asked about Serepikus he said he doesn’t know him. When put to him that Serepikus was one of his co-accused’s, he said no. The Record of interview was shown to him, and he read question and answer 24 wherein he named Christopher Serepikus, and when put to him that he knew him he responded that he knew him when the complainants came and called his name at his yard. When put to him that he was part of the group who held up the complainant and stole the vehicle and their properties in the morning he said no. In re-examination he said on the 8 of January 2019 he was at the house, and they came to his house. He knows the complainants by face and knows where they live. He heard Christopher Serepikus name when they brought him to the station.

28. Bobby Avia is 59 years old and married with 3 children. He resided with his wife and adult children Omoro Avia, Mal Avia and their sister Bianca Avia at Gevena Ladies Street in June Valley since 2019. Max Meakoro Avia was his neighbour and because of the incident he used his name.

29. He told the Court that on the 8 of January 2019 between at 9 am and 9:30 am he was at their home with Max, Virgil and Bianca and her husband George Naime. He said Max was baking flour outside the open space of the house and he was at the veranda of the house watching. The baking flour finished, and his son Mal Avia gave money to Max to buy flour. He said they stayed till 11am-12pm and they went to their rooms and watched movies. He said they were all there and he didn’t go anywhere. He said they finished their breakfast around 11am and the boys went into their rooms. He was not working at the time and was in his room when he heard the police vehicle and the complainants rushing into their yard cocking the gun and said “ol we”. He saw Jackson whom he knew as a community leader and Ruth after going to the police station. He testified that Max was in his room. He said they ran out of the house and had an argument because they came and said “m chol”. He said they asked for all the boys in the house, and he mentioned Max, George, himself and Bianca. Virgil and Bobby Junior had left around 10am and 11am. They went to Ruth’s house around 4pm after Virgil and Bobby Junior returned, and when they all arrived there, an argument and confrontation occurred between their family and Jackson and Ruth’s family and the boys from the street that assisted them. After that confrontation they went back to their houses. He said they lived at the residence for about 2 years, and they were renting.

30. In cross-examination he confirms Jackson Lasaro and Ruth Philip Moro resided on the same street where he resided. He confirms knowledge of Jackson Lasaro as a community leader in the area. He knows Ruth Philip after they went into his yard at 2pm looking for Max Meakoro Avia. He confirms that when they came to his house Max was with him at his house. They came and pointed to Max as one of the suspects but did not arrest him. The police officer told him about the armed robbery incident and theft of a vehicle being the reason why they came to his house to identify Max as he was one of the suspects.

31. When put to him that Max was identified by the Jackson and Ruth as one the criminals who held them up as he was not wearing any mask and they saw him, and they came to get him as a suspect he said no. When put to him that during that time of the armed robbery Max was not at the house frying flour, he said no. When put to him that there were some hours within the time of stealing the vehicle to 2 pm and there was ample time for Max to return to the house and the arrival of police at their house, he said no.

32. He confirmed to the Court that he was out of work at that time except for his wife and late son Mal Avia. He agrees that Max was a suspect that was why the police with the others came to his house. In re-examination he reiterated that from 9 am to 9:30 am Max was with him the whole time. The defence also tendered the unsworn statements for Bianca Avia, Virgil Avia and George Naime as alibi defence. Defence then closed its case.

33. The State submits that Ruth Philip is a credible and reliable witness and has a truthful demeanour as she spoke clearly and loudly that she saw the accused pointed a homemade gun to Jackson Lasaro at the same time a Christopher Serepikus (Kiripi) pointed a factory-made gun at her and removed her from the car. She was not swayed during cross-examination and maintained her story.

34. The State further submits that the identity of the accused is confirmed by the victim at the time of the offence, at his house and in Court. That what may appear to be a minor lapse in the evidence of Ruth Philip was fixed by her when she referred to paragraph 2 of her unsworn Statement wherein, she said that the accused was part of the criminal group that held them up.

35. Further, the State submits that Jackson Lasaro clearly identified the accused, Max Meakoro who was not wearing any mask had pointed a home-made gun at him and removed him and wife Mary from the car. At the same time Christopher Serepikus (Kiripi) pointed a factory-made gun at Ruth Philip and removed her from the car. State further submits as it is in evidence that Jackson Lasaro resided at the same street as Meakoro, and he knew him by name and is from Gulf Province who he again identified at his house, and at Ruth’s house, and he correctly identified him in the court room. His testimony is credible, and he is a reliable witness with a truthful demeanour, State submits.

36. As for the accused, State submits that his evidence is unreliable. State submits the following incidences to illustrate unreliability firstly when he said he does not know Ruth Philip, but when questioned about going to her house, he said yes. And when asked if he was there when Police and the State witnesses came to his house, he said no but when put to him they identified him at the veranda of his house he said he was there, and they identified him he said yes. That clearly shows that he was lying to the Court and is trying to distant himself from the State witnesses who clearly identified him.

37. The State submit further that defence witness Bobby Avia merely looked after the accused after the incident and the story he relates to the court is to distance Max from the incident realizing that Jackson and Ruth live in the same area, and they had identified Max. He cannot be considered as a truthful and reliable witness.

38. The State further submits that the Court should consider the witness evidence of Max going out to look for floor that morning between 9am and 9:30am the period the incident occurred.

39. Defence case is that Max Meakoro Avia did not take part in the robbery and unlawful use of a motor vehicle.

40. Counsel submit that the State’s witness Ruth Philip did not positively identify Max Meakoro. Also, the second witness Jackson Lasaro even though he identified Max, did not identify what clothes he was wearing at the time of the armed robbery.

41. He also submits that the evidence of his being at his house frying flour between 9 and 9.30 on the 8 January 2019 must be believed. This was supported by Bobby Avia as well as the by the unsworn statements of alibi evidence of Bianca Avia, George Naime and Virgil Evere.

42. As to identification, defence submit that this was uncertain and is a case of mistaken identity. Ultimately defence submits that the State has not proven its case beyond reasonable doubt.
Consideration

43. The issue for my consideration is whether the accused was involved and participated in the armed robbery and unlawful use of motor vehicle.

44. The Offence of Robbery is established by Section 386 (1) (2) (a) (b) (c) of the Criminal Code. It states:

Penalty:Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

46. In assessing whether the accused has committed the offence armed robbery and theft, I must be satisfied that the evidence before the Court has established beyond reasonable doubt that:

(vi) used personal violence by threating the victims with guns and stole the car.

47. First for my consideration is the alibi raised by the accused. He denies being at the scene of the armed robbery and theft and had filed a Notice of Alibi. He relies on the evidence of Bobby Avia and the unsworn evidence of Bianca Avia, Virgil Avia and George Naime. His evidence is that he woke up at around 6 am and helped George Naime to fry flour for breakfast. They finished around 9 am and got his laptop and went into his room to watch movie with his brother Omoro Avia.

48. Bobby Avia testified that Max was baking flour outside the open space of the house and the flour finished, and his son Mal Avia gave money to Max to buy flour. No clarification was made as to when exactly that morning did Max go to buy flour. His evidence is that they stayed till 11am-12pm and they went to their rooms and watched movies. He said they were all there and he didn’t go anywhere.

49. The accused did not say anything about going out to buy flour. This is a material fact which the accused chose to hide. If I accept Bobby Avia’s evidence, then the accused’s alibi defence is shattered. The only thing to establish is the probable time of Max’s exit from the house to go purchase flour. In the evidence of Bobby Avia Max was baking flour...and the flour finished, and he went to buy flour. The only inference that I can draw for the probable time for Max to exit the house to buy flour must be after 6 am and before 9 am, which is the time he said he finished frying flour. Coincidently the alleged offence was committed between 9 am and 9.30 am on the 8 January 2019.

50. As regards the unsworn statements of Bianca Avia, Virgil Avia and George Naime, these are not tested in cross examination and have less probative value to support Max’s alibi, and I will not admit into evidence.

51. I now turn to the question of identification of the accused at the scene of the crime. The 2 State witnesses gave good evidence of identification. The accused had no facial cover or mask during the commission of the crime. He was clearly identified by Jackson Lasaro as the person who held a homemade gun and pointed at him. Jackson Lasaro identified Max Meakoro as one of the boys from the same street and Ruth Philip knows the 2 suspects personally as they live at the same street and location. They both knew him by face and name and is from Gulf Province and again identified him at his house, Ruth’s house, and in the court room.

52. The crucial role of positive identification cannot be underestimated in cases where identification is an issue. It confirms or otherwise the accused person presence and thus the perpetrator of the offence or aided and abet the commission of the said offence. In this case it would determine whether the accused was involved and participated in the armed robbery and unlawful use of motor vehicle. In John Beng v The State [1977] PNGLR 155, the Court held that there is a good quality of identification evidence against the accused and found him guilty.

53. It is also common sense and logic that no one person can be in two places at the same time. The accused is either at the crime scene or not and the Court will assess the evidence taking into account in particular the issues of credibility and truthfulness of witnesses in its assessment of evidence.

54. The test of credibility of a witness is subjected to the court’s overall assessment of the evidence. It is incumbent upon the Court to assess the overall evidence tendered to establish the truth and to ascertain if there are gaps and inconsistencies. In The State v Angosiwen (No 1) [2004] PNGLR 2 the National Court considered the matter of consistency of evidence in a criminal trial and held:

“In so far as is relevant here, one of the applicable tests or principles is consistencies in a witness' own evidence and other evidence called by a party. In The State v Peter Malihombu [2003] PGNC124, N236 I found amongst others that there were a number of inconsistencies in the prosecution's evidence. I found the inconsistencies serious enough to cast a serious doubt on the case against the accused. Many other cases have considered and applied this test. It emerges clearly from these authorities that where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on”.

55. The State witnesses Ruth Philip and Jackson Lazarus are consistent with and corroborate each other in all material facts. On the other hand, there are unexplained inconsistencies in the evidence of Bobby Avia and Max Meakoro Avia. The first is timing when breakfast ended. Max says they finished around 9 am and got his laptop and went into his room to watch movie with his brother Omoro Avia whereas Bobby Avia said they stayed till 11am-12pm and they went to their rooms and watched movies.

56. Secondly, when it was put to the accused that he was at the scene of the crime and he was not with his family, he said no. He confirms that at 2pm the complainants and the police come to his house. When asked if he was there, he said no, but when put to him that he just told the court they came to his house he said he was there. When it was put to him that they identified him he said no but when put to him that he was at the veranda and they identified him, he said yes he was there.

57. If the Court finds the accused and his witnesses were s evasive, untruthful and unreliable then it must reject their evidence. On the other hand, it the State evidence is incredible and uncertain and one of mistaken identity, then the Court must find the accused not guilty.

58. The State also submits that the Court ought to take cognizance of what is referred to as logic and common-sense test. It was stated in The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2245 that:

"Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

59. The National Court formally stated and applied this test in The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, which the Supreme Court affirmed in Garitau Bonu & Rosanna Bonu v The State (1997) SC528 on appeal from the National Court. An earlier statement and application of this principle is represented by the case of Paulus Pawa v. The State [1981] PNGLR 498.

60. In this case, the victims who are the only State witnesses reside in the same area and street as the accused in June Valley. They know each other by face and name. In their evidence, both defence witnesses acknowledged Jackson Lasaro as the community leader. That on the date and time of the armed robbery both Ruth and Jackson identified Max Meakoro Avia as the person holding a home-made gun, went to the off-side seat and told them to come out. It was a clear day and he was not wearing any mask and they clearly identified him from close proximity. Even Jackson said Mea as in Max Meakoro Avia “its us”, but they went ahead and robbed them. When the victims came with the police to Christopher’s and Max’s house to show the police the suspects, that was logical and common-sense action on the part of the victim based on identification, following laying of a compliant and to proceed to the suspects’ houses to identify them and in the case of the accused again in court.

61. The State case is that it is common sense and logic that if Max was not involved in the armed robbery, he would not have gone up to Ruth Philip’s house with his family and people in the community twice and then start a fight. Whereas the defence argued that it is not common sense and logic for Max to get his family to go for mediation at 5 pm when he knew that did not commit the robbery.

62. In the end the Court must exercise what it consider as common sense and logic and in this scenario it is my view that if the accused was not part of the gang, then he should have been more civil in his approach and not confrontational thereby, curtailing or putting an end to any likelihood of mediation as suggested by the police to take place at 5 pm that afternoon.

63. In my view it is common sense and logic that Bobby Avia as the father of the accused would give a version of the story to account for his son’s whereabouts on that morning. He was not at the crime scene and would not know if Max was there or not. In his story he said Max went out to buy flour and as a tribunal of fact, it is reasonably open to this Court to conclude that the only rational inference to draw is that the accused was with others between 9am and 9:30am to commit the offences. That was a window of opportunity to join in the commission of the offence.

64. The State witnesses would not have a reason to lie in this court. They were at the crime scene and witnessed what took place at the crime scene in the morning, at his house and even at Ruth’s house. On the other hand, based on common sense and logic, the behaviour and the incidences that follow the robbery on the part of the accused points to him as the same person known as Max Meakoro Avia that held them up earlier.

65. I consider the defence common sense argument that the delayed arrest of the accused as being due to the death of Ruth Philip’s father so as to claim payment and not because of the identity of the accused as the offender. This is a matter for proving in evidence and there is no such so I reject this proposition by defence.

Rule in Brown v Dunn

66. I now turn to the Rule in Brown v Dunn (1893) 6 R 67 (HL) which rule invokes fairness and entails the need to put the defence case to the prosecution’s witnesses so that, they will be given the opportunity to comment on it and either, retract or abandon their evidence. Put another way, the accused’s case should be put to the prosecution witnesses in cross-examination so that they can refute or explain. This was not done, and they never put their case to the State witnesses.

67. The failure to put the defence case to the State witnesses has the risk of a rejection of the defence evidence not put to the prosecution’s witnesses or less weight attached to it. This Rule is engrained in this jurisdiction as stated in The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2245:

"Where an accused calls evidence without first in fairness putting it in cross–examination to the prosecution witnesses, such evidence should be treated as recent inventions and unreliable. This stems from well-known authorities like that of Browne v Dunn (1893) 6 R 67(HL)."

"The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasized in Papua New Guinea: ... If it is not done the weight of the particular evidence given by the party, in this case the accused is reduced.

The object behind this is in line with our system of justice. Fairness to both parties must prevail in all trials before our Courts. This principle requires an accused person to put his case to the witnesses called against him or her so that in fairness the witnesses can comment and choose to either maintain or retract their evidence. This must be done during cross-examination because under our trial procedure, the prosecution does not normally and readily have a right or opportunity to either recall witnesses or call new witnesses to rebut fresh evidence introduce by the defence."

69. In this case, even though the accused had filed a notice of alibi, the Court allowed defence to call evidence in which case the rule in Brown and Dun is applicable. As it is, the accused never put his case the State witnesses. The following were not put to the State witnesses to afford them the opportunity to refute:

(i) That in the morning on the 8 of January 2019 between the 9am and 9:30am the accused was not there and was not part of the group that held up the victims;

(ii) That between that time he was at the house with his family frying flour and watching movies.

70. The Statements attached to the section 96 Statement that were not part of the exhibits relating to the alibi witnesses were never put to the witnesses nor where the authors of the statements called.

71. The defence line of question was about the State witnesses not identifying him at the crime scene. State witnesses however affirmed the evidence in chief that they saw and clearly recognized and identify the accused at the crime scene. The defence didn’t put their case of Alibi to the State witness and logically it means admission to the State case of being at the crime scene.

72. Both State witnesses’ demeanour come across as confident and firm when giving evidence. As for the accused, he was hesitant and very thoughtful as if looking for a proper answer when questioned. Bobby Avia clearly demonstrated a demeanour of a father batting for his son so as to distance the accused from the crime scene. He was clearly nervous and defensive. I am impressed with the overall demeanour of the State witnesses.

73. At the end of this trial, it comes to the question of who the Court should believe. The question of who to believe is assessed on the credibility, truthfulness and demeanour of the witnesses.

74. The Court can also make a finding based on the notion of common sense and logic and inferences that can be drawn.

75. As well as all of the above consideration, the elements of the charge must be proved. Specifically, whether the accused had committed one count of armed robbery in contravention of s. 386 (1) (2) (a) (b) & (c), of the Criminal Code and unlawful use of a motor vehicle contrary to s. 83 (2) of the Criminal Code.

76. I am satisfied that the elements of the offence have been proved. It means that accused, Max Meakoro Avia stole the silver Toyota Harrier reg. no. BFA- 774 belonging to Ruth Philip Moro, armed with a home-made gun, in company of 4 others and had used personal violence by issuing of threats with the guns and stole the car.

77. I also affirm the positive identification of the accused and that the State has proved it case beyond reasonable doubt that the accused is positively identified at the crime scene and had committed the crime of armed robbery and theft.

78. In holding as such, I dismiss the accused version that during the commission of the armed robbery he was not at the crime scene nor participated in the armed robbery.

79. I therefore find the accused, Max Meakoro Avia of Miaru Village, Malalaua, Gulf Province that on the 8 January 2019 at Arere Street, June Valley National Capital District in Papua New Guinea committed armed robbery on Ruth Philip and Jackson Lasaro and his wife, then stole Ruth Philip’s Toyota Harrier Vehicle and other properties in the company of others.

2. The accused is convicted of armed robbery under section 386 (1) (2) (a) (b) & (c), of the Criminal Code

Ordered Accordingly
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Public Prosecutor: Lawyers for the State

National Court of Papua New Guinea

State v Avia [2023] PGNC 217; N10367 (26 June 2023)