The State v Alphonse Asarombo & Timothy Lokora (2010) N4035

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 May 2010
• Court: National Court
• Citation: (2010) N4035
• Docket Number: CR NO 151 & 1439 OF 2009
• Year: 2010
• Judgement Number: N4035

Full Title: CR NO 151 & 1439 OF 2009; The State v Alphonse Asarombo & Timothy Lokora (2010) N4035

National Court: Cannings J

Judgment Delivered: 26 May 2010

N4035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 & 1439 OF 2009

THE STATE

V

ALPHONSE ASAROMBO & TIMOTHY LOKORA

Madang: Cannings J

2010: 15, 19, 20, 22 Aril,

26 May

VERDICT

CRIMINAL LAW – trial – armed robbery – circumstantial evidence – no identification of accused – Criminal Code, Section 386.

The two accused were charged with armed robbery. The State’s case was based entirely on circumstantial evidence: that there had been an armed robbery, that arrangements were made to hire a dinghy, that the accused were running from the direction of the scene of the robbery, chased by security guards, that they were in a group who boarded the dinghy and instructed the captain to drive at full throttle, that they were apprehended by police while in the dinghy, that in the dinghy was a cash bag stolen in the robbery and weapons and other items resembling those used by those who committed the robbery. One accused gave sworn evidence that he had been taken hostage and forced on to the dinghy against his will. The other accused remained silent. The defence case also focused on defects in the police investigation, particularly on the failure to present any witness identifying either accused as being involved in the robbery.

Held:

(1) The principles to apply when a case is dependent on circumstantial evidence are:

· the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt;

· to enter a guilty verdict, it is necessary not only that guilt is a rational inference but that it is the only rational inference that the circumstances would enable the court to draw;

· the question to ask 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, he is guilty. If no, he is entitled to an acquittal (Paulus Pawa v The State [1981] PNGLR 498, Devlyn David v The State (2006) SC881 applied).

(2) The first accused’s evidence that he had been taken hostage was not credible. Other parts of the defence case regarding lack of identification and other direct evidence and defects in the police investigation and allegations of police brutality did not defeat the natural inference arising from the proven facts that the accused were involved in the robbery.

(3) It was not necessary for the State to prove what acts each of the accused actually committed. It was only necessary that the State prove that each accused participated in the robbery in some way.

(4) The only reasonable inference that could be drawn from the proven facts is that each participated in the robbery. Accordingly each accused was found guilty.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881

Paulus Pawa v The State [1981] PNGLR 498

The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

TRIAL

This was the trial of two accused charged with armed robbery.

Counsel

N Goodenough, for the State

J Kolkia, for the accused

26th May, 2010

1. CANNINGS J: On the morning of Monday 8 September 2008 an armed robbery took place at the front of the BNBM Hardware store in Madang town. Two of the store’s employees were held up at gunpoint when they were in a vehicle preparing to go to the bank. A money bag containing K43,491.74 (K17,280.60 cash + K26,211.14 cheques) was stolen. The employees were not physically wounded. The members of the gang left the scene on foot, heading in the direction of the harbour. A short time later the police apprehended the two accused, Alphonse Asarombo and Timothy Lokora, and a few others, in a dinghy on the harbour. Inside the dinghy were the money bag stolen in the robbery and weapons and other items that resembled those used by those who committed the robbery.

2. The two accused are each charged with one count of armed robbery. They pleaded not guilty so a trial has been held. The two employees gave evidence for the State, as did the dinghy operator and the police officer involved in apprehension of the accused and seizure of the items from the dinghy. The employees were unable to identify the accused as being involved in the robbery. The police officer, however, identified them as being in the group apprehended in the dinghy. The first accused gave sworn evidence that he had been taken hostage and forced on to the dinghy against his will. The other accused remained silent.

ISSUES

3. The State presented no direct evidence and rested the case entirely on circumstantial evidence. This means according to the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498 that:

· 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 or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable it to draw.

4. 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.

5. The issues therefore are:

· What are the proven facts?

· Do they lead only to the conclusion that, in relation to each accused, he was involved in the robbery?

WHAT ARE THE PROVEN FACTS?

6. Mr Goodenough submitted that the following were proven facts:

1 On the morning of 8 September 2008 an armed robbery took place at the front of the BNBM Hardware store.

2 Arrangements were made to hire a dinghy and take it to the harbour side.

3 The accused were in a group of men that was chased towards the dinghy and climbed aboard.

4 The accused were in the dinghy when they were apprehended by the police.

5 Inside the dinghy were the money bag stolen in the robbery, weapons and other items resembling those used in the robbery.

7. Each of those propositions of fact will now be tested.

1 Armed robbery on the morning of 8 September

8. The fact that the robbery took place and the details of how it was committed, which emerged from the evidence of the two BNBM employees, were not disputed by the defence.

9. At about 10.00 am the two employees, “S”, a female accountant, and “M”, a male driver, were setting out on a bank run. They both got in the vehicle, S in the front passenger seat and M in the driver’s seat. S was holding the money bag. One member of the gang held a flare gun against M’s neck and grabbed the money bag. At the same time another member of the gang threatened M with a home made gun, pressing the barrel against the back of his right ear. S screamed “Hold up! Hold up” and the gang members fled through the front gate. There was a crowd of people in the car park at the front of the store. S did not get a good look at the face of the person who grabbed the bag. She cannot remember how he looked. M saw the face of the man who held the gun against his head but cannot remember what he looked like. There were about four or five men in the gang. S and M saw them run off in the direction of the PNG Power slipway. They followed them in the vehicle and from a distance saw them get into a dinghy.

2 Arrangements made to hire dinghy

10. This evidence, which came from the dinghy operator, “J”, was not contested. J operates a ferry service with his 19-foot Yamaha, 40-hp dinghy between Kranket Island and town. On the morning of 8 September, after he had brought some passengers to town, a man with whom he was not familiar asked if he could hire the dinghy to go to Pig Island for a picnic. J agreed. With J was his crew, a nine-year-old boy. The man gave J K70.00 and asked him to drive the dinghy to the slipway between Lutheran Shipping and PNG Power where they would meet his family who the man said had gone to the supermarket. J steered the dinghy in that direction. On the way they stopped at Rookes Marine to refuel and the man made a call on his mobile phone.

3 The accused chased towards the dinghy and climbed aboard

11. This evidence, which also came from J, was also not contested. They got to the slipway and waited for about three minutes and then a group of four or five young men came running towards the dinghy as they were being chased by some security guards. The group of young men boarded the dinghy and told J to head off quickly, which he did.

4 The accused were in the dinghy when apprehended

12. The evidence about what happened in the dinghy came from both J and one of the officers, First Constable Mathew Giaut, who apprehended them.

13. The police were alerted to the robbery soon after it happened and gave chase in their own boat, powered by a 60-hp motor. The men told J to speed but he was already on full throttle. There was an exchange of gunfire between the dinghy and the police boat. One of the men who...