CR NO. 1771 OF 2003; The State v Richard Saku, Peter Ken Yahu & Nakikus Konga (Jr.) (N0.2) (2006) N3283

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 05 December 2006
• Court: National Court
• Citation: (2006) N3283
• Year: 2006
• Judgement Number: N3283

Full Title: CR NO. 1771 OF 2003; The State v Richard Saku, Peter Ken Yahu & Nakikus Konga (Jr.) (N0.2) (2006) N3283

National Court: Lenalia, J

Judgment Delivered: 5 December 2006

N3283

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1771 OF 2003

THE STATE

-V-

RICHARD SAKU, PETER KEN YAHU & NAKIKUS KONGA (JR.) (N0.2)

Kokopo: Lenalia, J.

2006: 23 October

5 December

CRIMINAL LAW – Trial – Evidence - Confessional statement –

Admissions made therein - Record of interview – Confessional statement and record of interview accepted into evidence – No notice of voir dire trial issued to the State – Court finds that confessional statements were obtained in accordance with Rules 2 and 5 of the Judges Rules..

CRIMINAL LAW – PRACTICE AND PROCEDURE – Burden of proof –

Evidence - Circumstantial evidence – Inferences to be drawn – Question of fact – Relationship of inferences to the finding of facts – Guilt of second and third accused – Only rational inference.

Cases Cited:

R v Toronome Tombarbui [1963] PNGLR.55

R v Bularia Gaio [1964] PNGLR.261

R v Lupalupa Sisarowe [1968] 455

R v Ginitu Ileandi [1967-1968] PNGLR 496

Constitutional Reference N0.1 of 1977 under s.19 of the Constitution [1977] PNGLR 362

John Peng v The State [1977] PNGLR 331

The State v Marawa Kanaio [1979] PNGLR 319

The State v Tom Morris [1981] PNGLR 493

Paulus Pawa v The State [1981] PNGLR 498

The State v Kiki Hapea [1985] PNGLR 6

The State v Anton Ames Turiki & Wickie Jack Paltem [1986] PNGLR 138

Allan Koroka v The State & Mariano Wani Simon v The Sate [1988-89] PNGLR 131

The State v Garitau [1996] PNGLR 48

Other cases cited:

Barca v The Queen (1976) 50 A.L.J.R. 108

McDermott v R (1948) 76 C.L.R. 501

Counsel:

A. Kupmain, for the State

T. Potoura, for the 1st Defendant

P. Kaluwin, for the 2nd and 3rd Defendant

5 December, 2006.

1. LENALIA, J: The three accused are jointly charged for one count of aggravated armed robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code. After the trial had been almost completed, the first accused, Richard Saku applied through his lawyer to change his not guilty plea to that of a guilty plea. No objection was raised by the State Prosecutor and the court re-arraigned accused Richard Saku. He then pleaded guilty to the charge. The allocutus was administered and his case was adjourned for addresses on sentence after the ruling on the verdict on all the evidence put to the court by the prosecution and the two accused.

2. The following ruling only relates to the first and second accused. That is to say Peter Ken Yahu and Nakikus Konga Junior.

3. The State evidence against the two accused is that on 28 May 2003, at Talina AGMARK premises in Kokopo, the two accused were amongst a group of men of course including the first accused who conducted an aggravated armed robbery upon Ms. Julie Tamur and Daniel Tarutia who were AGMARK employees and stole from them with actual violence a sum of K25, 000.00 and a motor vehicle, a white single cabin utility Reg.N0.IAA.685. The cash sum stolen and the vehicle were the property of AGMARK Ltd.

4. Evidence tendered were a number of statements from eye witnesses. Exhibits “1” “2” and “3” and “4” to “19” on the back of the indictment are statements of other witnesses. In case of eye witnesses Ms. Julie Tamur, the driver Mr. Daniel Tarutia, an AGMARK Ltd, security guard Billy Rusiat and David Taplar all gave an account of how the robbery was conducted.

5. In case of Julie, she is a cashier with the company and was in that vehicle with the driver Daniel returning from the Bank of South Pacific after doing a withdrawal cash-out payment for salaries of the company employees in the head office and the Rabaul branch office.

6. As they drove into the car park, Ms. Julie left the vehicle with the black bag containing more than several small bags. Those bags contained the amount of money allegedly stolen during the hold up. As Julie was walking out of the vehicle, a man pointed a gun at her. She shouted alarming the driver. As Daniel heard the shouts he came out of the car only to be surprised by another armed man pointing a factory made gun right on his forehead.

7. The gang demanded Julie to give them the money bag. Fearing for her life, she handed over the money bag to them. Two of the gang members got into the back of the vehicle while two or three demanded the driver to give them the vehicle ignitions.

8. The gang insulted and swore at the driver and Julie and so the driver handed over the vehicle key to one of them. In fact they were threatened to be shot if they did not give up the money and the vehicle keys. The gang further ordered Daniel to get onto the back of the vehicle. He quickly got behind a vehicle that had been parked there earlier and took cover.

9. The gang then got into the stolen vehicle and drove away. Only the company vehicle was recovered sometime later.

10. A part from the above evidence, the records of interviews obtained from the second and third accused were tendered by consent. In case of the accused Peter Ken Yahu, he chose to remain silent during the course of interview exercising his Constitutional right under Sections 37 (4) (a) (b) & (c) and 42 (2) of the Constitution. As well, there was no confessional statement obtained from this accused.

11. In case of the third accused, Nakikus Konga Junior, he obviously admitted during the record of interview that he was at Talina AGMARK company premises and he admitted to being involved in the robbery that morning.

12. He further admitted that he was there together with three other mates. In his confessional statement, the third accused mentioned the names of the three persons who were involved in the armed robbery at Talina. He named them as Jerry Tano, Peter Ken Yahu and Richard Saku.

13. A part from the above admissions, it is clear from the confessional statement obtained from accused Nakikus Konga Junior that when they were sitting down at the Kokopo beach front, they saw the AGMARK vehicle parked in front of the Bank of South Pacific. They then left the beach and went to Talina to wait for the staff to return with the money. When the two staff returned, they held them up.

DEFENCE CASE

14. Only accused Richard Saku gave evidence. His evidence was total denial. After he had given his evidence, he instructed his lawyer to change his not guilty plea into a plea of guilty.

15. I heard full submissions from both lawyers, that is Mr. Potoura of counsel for the accused and Mr. Kupmain for the prosecution. Since there was no dispute over the application to change the plea from not guilty to guilty, I re-arraigned the accused and took his plea. He pleaded guilty to the charge. I then accepted the guilty plea and convicted him for the charge of armed robbery.

16. Allocutus was taken and his case was adjourned for addresses on sentence pending the outcome of the ruling on the verdict of the second and third accused cases.

17. The second and third accused (Peter Ken Yahu and Nakikus Konga Junior) were warned in terms of Sections 570 and 572 of the Criminal Code whether they wanted to give evidence and later to call any witnesses on their own wish to give evidence on their behalf. They were also informed that, if they did not wish to give any evidence, they could make unsworn statements from the dock or choose to remain silent. The two accused indicated that they did not want to give any evidence nor make any unsworn statements or call any witnesses. That was the end of the defence case.

ADDRESSES ON VERDICT

18. The two accused did not give evidence nor did they call any witnesses, so the State Prosecutor took the lead in addressing the court first on the verdict. Mr. Kupmain of counsel for the State submitted that the State has proven its case beyond reasonable doubt against the second and third accused.

19. He submitted that, in the record of interview with accused Nakikus Konga (Jr.) and the confessional statement, they contain clear admissions not only about his own involvement, but also the second accused.

20. Mr. Kupmain also referred to certain documentary evidence showing that, the second accused Peter Ken Yahu had been observed to have spent money lavishly after the robbery.

21. Counsel further submitted that when accused Peter Ken Yahu was investigated and asked questions during the record of interview, he never answered but merely indicated he would answer the charge or charges in court. But yet the accused never said anything in court nor did he call any witness.

22. The prosecution counsel submitted that, since the two accused did not give evidence or call witnesses, the prosecution case against the two of them is unchallenged and therefore the court should return verdicts of guilty to the second and third accused. He cited the case of The State v Garitau [1996] PNGLR 48 to support such proposition.

23. In reply to the prosecution address, Mr. Kaluwin of counsel for the 2nd and 3rd accused raised a number of legal issues. First he said, the evidence by Police Constable Paul Wapinan should not be believed because the questioning of the third accused lasted from 10 am to 12 noon but yet only 4 questions were recorded. On the accused Peter Ken Yahu, counsel submitted that, there is practically no evidence against the said accused.

24. Part of Mr. Kaluwin’s argument is that, the accused Nakikus Konga (Jr.) was questioned for two long hours but there was no formal caution given to him. He further submitted that although the...