The State v John Michael Awa, Eric Steven Gitu, Degemba Michael and Harry Ewag (2000) N2012

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 26 June 2000
• Court: National Court
• Citation: (2000) N2012
• Year: 2000
• Judgement Number: N2012

Full Title: The State v John Michael Awa, Eric Steven Gitu, Degemba Michael and Harry Ewag

National Court: Injia J

Judgment Delivered: 19 and 26 June 2000

N2012

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 905/98 — THE STATE -v- JOHN MICHAEL AWA

CR NO. 906/98 — THE STATE -v- ERIC STEVEN GITU

CR NO. 907/98 — THE STATE -v- DEGEMBA MICHAEL

CR NO. 1010/98 — THE STATE -v- JOHN MICHAEL AWA

CR NO. 1011/98 — THE STATE -v- ERIC STEVEN GITU

CR NO. 1012/98 — THE STATE -v- DEGEMBA MICHAEL

CR NO. 1031/98 — THE STATE -v- HARRY EWAG

Lae: Injia J

2000: June 19, 26

FINAL VERDICT

N. Miviri for the State (standing in for L. Rangan)

A. Raymond for all accused

19 June 2000

Injia, J.: The evidence in this trial consists of all evidence presented by both parties before the vior dire and during the vior dire, as set out in the first part of my judgment herein. Both counsel adopted the evidence on the vior dire for the purpose of the substantive trial. Additional evidence adduced by the State after the vior dire are 7 written statements of the accused Michael John Awa, Degemba Michael and Eric Steven Gitu which were tendered as s.93 statements during the committal proceedings. These statements are referred to in the affidavit of the presiding Magistrate John Numapo which is also in evidence and marked Court exhibits "DD.1" — "DD.6" (State).

Before I consider the evidence as a whole for the purpose of arriving at a verdict, I wish to re-state some established principles which I believe are relevant to the case before me. The State carries the burden of proving each and every element of the charge(s) beyond reasonable doubt. There are two charges against each accused. They are aggravated robbery under S.386 and unlawfully taking control of aircraft or "plane hijacking" under S.393. Earlier in the trial, there was reference to a possible charge of unlawful use of a motor vehicle under s.383 but no such charge has been preferred against the 4 accused. Instead the State relies on the evidence of unlawful use of the subject motor vehicle in the various records of interview (ROI) as a circumstance of the two crimes.

There is only one issue in this trial which is common to both charges, and it is one of identification, there being no dispute that the two crimes were committed by a group of young men in the manner described in my findings of fact which are set out in the first part of my judgment handed down on 15 May 2000 and which appear on pages 8 — 9 herein. For purposes of completeness, I set out that part of the judgment hereunder:

I now wish to set the stage for discussion of the case against each accused. It is not disputed that on 30 January 1998, a North Coast Aviation Islander Aircraft piloted by one Shelly Damien left Lae's Nadzab airport enroute Sialum and Finschafen, to deliver pay for public servants based in the area. In the plane were provincial government finance department officers as well as other passengers. At 11am, the aircraft touched down at Sialum airstrip. The District Office vehicle for Tewae/Siassi, a government 10 seater landcruiser, drove up to the tarmac to collect the cargo. They loaded the vehicle with all the cargo and were about to leave when 5 men wearing masks and blue overall clothes wielding guns approached them and held them up. They fired shots into the air and forced the passengers to lie flat on the ground and they searched them. Aircraft passenger Colin A. Ramin (Local Government Manager) lost K487.74 in pay cheque and K550.00 in cash and other payments designated for Yabim Mape Local Government Administration. Aircraft passenger William Bogu (teacher of Dreger High School) lost K150.00. Aircraft passengers Mrs Nancy Bogu (teacher of Dreger High School) and her one year old daughter were also held up. Aircraft passenger Mathias Awagasi (Local Government Council Manager) was also held up. Aircraft passenger Robin Dama (employee of Sialum Local Government Council) was held up and threatened. The driver of the 10 seater landcruiser Peter Novenba was also held up and threatened. Ms Nancy Calistor (typist at Sialum District office) who accompanied the driver to the airport to collect the cargo was also held up and threatened. Mr. Juki Jackro (Sialum Station mini-power operator) who accompanied Ms Nancy Calistor was also held up and threatened. Mr. Kitoli Posanau (Provincial Finance Clerk) based at provincial headquarters was a passenger on the plane and he was responsible for the payroll run. He had with him a total of K24,330.92 in cash and K10,297.60 in cheques (total K34,628.52) designated for Sialum, Wasu, Kabwum and Siassi based public servants, all packed and wrapped. He was also held up and threatened. All of these were monies taken away by the suspects. Councillor Manasing Seket watched the hold up from his home next to the airport and was frightened at what he saw. All this episode took a very short time, 1 — 2 minutes.

After the suspects held them up, they forced them to lie down, fired some shots, and they drove off in the 10 seater landcruiser in a hurry with all the cargo. On the way, they crashed the landcruiser on the side of the road and were unable to get it back on the road. They then returned to the airport and held up the pilot and forced him to fly them out of Sialum, at gun point. He did as he was told.

The pilot flew the plane to Finschafen and was told to land there at the southern end of the airstrip, which he did. At 12:05pm, he touched down and took off at 12.20 pm. The suspects then got out of the plane. When he took off he saw 2 — 3 cars on the airstrip. Thinking they were police, he landed again and waited in the plane but no one approached him so he took off and headed for Sialum.

According to Ms Mary M. Dala (A/Personnel Manager of BMS Lae) police recovered and returned K16,949.02 in cash only. The balance of K17,679.50 (that is K10,297.60 in cheques and K7,381.90 in cash) were not recovered and returned.

None of these witnesses who gave evidence in Court through their certified statements, were able to identify the suspects by name and face, except to give general description of the clothes worn by the suspects and their general appearance. The issue in the main trial no doubt is one of identification. Therefore, the record of interview which the State alleges contains admissions from these 4 accused are critical to both sides in this trial.

The only evidence of identification of course comes from the admissions in the 12 ROI which were admitted into evidence. The 7 statements of the accused submitted in the District Court do not appear to contain any admissions. In addition, in respect of the accused Michael Degemba, there is also the evidence of State witnesses who recovered stolen monies near the scene of the crime and implements of crime from the house of Degemba's relatives which to some extent was admitted in Court by this accused.

In considering the evidence before the court, whether objected to or not, the Court is required to ascertain the truth by carefully assessing the value and weight of the evidence and make findings of fact which support the charge(s). Where there is an admission by the accused, the admission must be sufficiently clear in order for the Court to accept its truth. Where an accused person's statement contains a mixture of admissions and excuses, it is imperative that the whole statement, both the incriminating parts and the exculpatory parts, must be considered in determining the truth: R v. Sharp (Colin), 86 Cr. App. R.274; R v. Azis [1996] A.C. 41. There is a general discretion to reject the truth in an admission if its truth is called into serious questions by the exculpatory statement accompanying the admission.

In a case where the trial involves several co-accused jointly indicted and tried together, it is important to separate the evidence against each co-accused: Keko Aparo & Others v. The State SC 249 (25 May, 1983). Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Anoko [1981] PNGLR 373; of The State v. Joseph Tapa [1978] PNGLR 134.

There are a number of ROI which contain clear admissions. These are ROI No. 7 in relation to Michael John Awa (Plane Hijacking and Armed Robbery), ROI No. 8 in relation to Michael Degemba (Armed Robbery and plane hijacking), ROI No. 9 in relation to Michael Degemba (Armed Robbery and plane hijacking) and ROI No. 11 in relation to Degemba Michael (Armed robbery, Plane Hijacking and unlawful use of get-away motor vehicle). These evidence are sufficient to support a guilty...