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

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J
• Judgment Date: 24 October 2007
• Court: National Court
• Citation: (2007) N4012
• Docket Number: CR NOS 122 & 123 OF 2007
• Year: 2007
• Judgement Number: N4012

Full Title: CR NOS 122 & 123 OF 2007; The State v Boria Hanaio, Bula Nanaio & Timothy Komu (2007) N4012

National Court: Cannings, J

Judgment Delivered: 24 October 2007

N4012

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 122 & 123 OF 2007

THE STATE

V

BORIA HANAIO, BULA HANAIO & TIMOTHY KOMU

Buka: Cannings J

2007: 18, 19 September, 24 October

VERDICT

CRIMINAL LAW – trial – robbery – the offence of robbery as distinct from the offence of stealing – definition of stealing: Criminal Code, Section 365 – definition of robbery: Criminal Code, Section 384 – offence of robbery: Criminal Code, Section 386(1) – robbery in circumstances of aggravation: Criminal Code, Section 386(2).

Three men were indicted for armed robbery. It was the State’s case that, armed with a gun and a bushknife, they confronted a group of workers on the roadside and stole the workers’ employer’s vehicle. The accused men admitted to demanding the vehicle and unlawfully using it for one day, but denied that they stole it, that they threatened violence against the workers or that they were armed. They pleaded not guilty and a trial was conducted.

Held:

(1) The offence of robbery, created by Criminal Code, Section 386(1), consists of four elements:

(a) stealing something; and

(b) using or threatening to use actual violence to any person or property; and

(c) in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen; and

(d) at, immediately before or immediately after, the time of stealing it.

(2) The offence of aggravated robbery is committed, according to Criminal Code, Section 386(2), when the robber:

(a) is armed; or

(b) is in company with at least one other person; or

(c) wounds or uses personal violence.

(3) To “steal” a thing, a person must:

(a) take it or convert it to their or another person’s use; and

(b) do so, fraudulently; and

(c) move it or deal with it by some physical act (Criminal Code, Sections 365(2) and (3)).

(4) “Fraudulent” taking or conversion happens when the accused person takes or converts the thing:

(a) with intent to permanently deprive the owner of it; or

(b) with any of the other states of mind prescribed by Criminal Code, Section 365(4).

(5) In the present case, the three co-accused (a) took the vehicle; and (b) did so fraudulently as it was their intention to permanently deprive the owner and the possessor of it and use it as security; and (c) moved it. Therefore they stole it.

(6) At the time they stole the vehicle, the three co-accused threatened to use actual violence. Therefore they were guilty of robbery under Section 386(1).

(7) Further, the State proved that they were armed (with a bushknife, but not a gun) and in company of each other. Therefore they were guilty of aggravated robbery under Sections 386(2)(a) and (b).

Cases cited

The following cases are cited in the judgment:

John Kasaipwalova v The State [1977] PNGLR 257

Tom Amaiu v The State [1979] PNGLR 576

Abbreviations

The following abbreviations appear in the judgment:

aka – also known as

CJ – Chief Justice

cm – centimetres

CR – Criminal

DCJ – Deputy Chief Justice

ie – that is

J – Justice

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

reg – registration

v – versus

VHF – very high frequency

TRIAL

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

Counsel

L Rangan for the State

P Kaluwin for the accused

24th October, 2007

1. CANNINGS J: Three men from the Lemankoa area of Buka Island are before the court, charged with unlawful use of a motor vehicle and armed robbery. They are Boria Hanaio and Bula Hanaio (who are brothers) and Edward Komu.

2. On 10 April 2006 three workers from the World Vision office in Buka town drove to Mangoana to work on a water and sanitation project in the area. They got there about 10 am, parked their vehicle (a blue Toyota Landcruiser reg No BBL 109) on the roadside near a beach and started work. They were constructing a well and installing a water pump with the help of villagers.

3. About 11 am the three co-accused came to the scene, confronted the World Vision workers, had an angry conversation with them, got the keys to the vehicle and drove off with it. The vehicle was at Boria Hanaio’s house that night when the police arrived and it was returned to World Vision the next day.

4. The three co-accused pleaded guilty to unlawfully using the motor vehicle, but not guilty to armed robbery. This is a trial on the armed robbery charge.

5. It is the State’s case that when they confronted the World Vision workers, the three co-accused threatened to use physical violence if they were not handed the keys to the vehicle and that they were armed with a factory-made gun and a bushknife. They were acting in a gang, ie in company of each other. Therefore they should be convicted of aggravated robbery.

6. The co-accused admit to asking for the vehicle as they were concerned that World Vision was not devoting enough resources to projects in their villages; and they admit to using it unlawfully for a day. But they deny that they stole it, that they threatened violence against the workers or that they were armed.

7. This is an intriguing case as it requires examination of the elements of the offence of robbery, which entails a close look at the definition of “stealing”. The argument for the defence is that the three co-accused had no intention of permanently depriving World Vision of the vehicle. They always intended to return it, so they did not steal it. I will return to the finer points of the legal issues after laying out the evidence that was presented.

EVIDENCE FOR THE STATE

8. Nine exhibits were admitted into evidence and two of the World Vision workers gave oral evidence.

9. Exhibits A + B are statements by police officer Lorraine Billy who was present when Bula Hanaio and Timothy Komu were interviewed. Both denied using actual violence.

10. Exhibit C is a statement by police officer Richard Tiotham who was present when Boria Hanaio was interviewed. Boria denied using actual violence.

11. Exhibits D, E + F are statements by the investigating police officer, Reuben Baloiloi, who interviewed each of the co-accused. He says that they admitted removing the vehicle from the World Vision staff but denied the involvement of any offensive weapon.

12. Exhibit G is Boria Hanaio’s record of interview. Boria admitted to removing the keys from the World Vision workers “because they did not provide us any cement for our toilets”. He was with Bula, Timothy and one other person, Edward, aka Blacky. Bula and Timothy were drunk. He and Blacky were not. They removed the vehicle “in a polite way”. They told the workers they were having some problems so they wanted the vehicle. Boria said he was the leader and he drove the vehicle. He did not know anything about the alleged gun. He took the vehicle to his house and left it “till the police went and took it back”.

13. Exhibit H is Bula Hanaio’s record of interview. The motive for taking the World Vision vehicle was “there was no service reaching our place”. Asked what he meant by that, re replied “Toilets”. They removed the vehicle “in a polite way”. They told the workers they were having some problems so they wanted the vehicle. Only himself (Bula) and Timothy were drunk. They had been drinking home brew.

14. Exhibit I is Timothy Komu’s record of interview. Timothy admitted to “stealing” the World Vision vehicle. “We were not happy with World Vision when they did not provide the materials needed for our toilets”. He admitted to being really drunk. He denied issuing any threats with a gun or bushknife. They removed the vehicle “in a polite way”.

15. The first State witness, Stanley Limen, was the driver of the World Vision vehicle. He was in charge of the workers that went to Mangoana. In examination-in-chief he said that while they were installing water pumps the three co-accused came up to them, armed with a gun and a bushknife and started accusing World Vision of using up all the ex-combatants’ money from the Bougainville Crisis. Boria was holding a factory-made gun, about 60 cm long and threatened to shoot him and he found it hard to get a word in. Boria was holding the gun in a downward pointing motion. He (Stanley) was afraid for his life so he gave Boria the keys and he drove off. Bula and Timothy (who had the bushknife) got into the vehicle, then they were joined by two others, who had been in the bush.

16. He and his workmates then walked to Lemanmanu health centre to use the VHF radio to call their base and notify them of their problems. They were not there long when the three co-accused arrived and used threatening words against them. Timothy smashed a bottle of home brew against a tyre rim on the vehicle. They demanded that World Vision give them their money, then they would return the vehicle. Then they left them there and drove off with the wheels screeching.

17. In cross-examination Stanley was asked many questions about the gun that he said Boria was using to threaten him. Stanley said he saw Boria’s finger on the trigger but then said that the gun was beneath a lap-lap. Then it was inside a mountain bag and he only saw the barrel...