The State v Robin Erick and Emil Basilio (2006) N3023

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 22 February 2006
• Court: National Court
• Citation: (2006) N3023
• Docket Number: CR Nos 515 and 516 of 2004
• Year: 2006
• Judgement Number: N3023

Full Title: CR Nos 515 and 516 of 2004; The State v Robin Erick and Emil Basilio (2006) N3023

National Court: Lenalia J

Judgment Delivered: 22 February 2006

N3023

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS. 515 & 516 OF 2004

THE STATE

-V-

ROBIN ERICK & EMIL BASILIO

KOKOPO: LENALIA, J.

2006: 14th 22nd February

Criminal Law – Armed robbery – Not Guilty Pleas - Criminal Code, s.386

(2) (a) (b) (c) Ch. No. 262.

Criminal Law – Trial – Practice and Procedure – Evidence by witnesses

depositions – Undesirability of – Plea of involuntariness in record of interview – No Notice of voir dire – Unsigned records of interview tendered and rejected.

Criminal Law – Trial – Evidence – Rights of an accused person –

Constitutional right to a fair trial – Constitution s.37 (1) (e) (f) (6) – Defence of accused and his/her right to call evidence – Criminal Code s.570 (1).

Criminal Law – Evidence – Where State choose to tender documentary

evidence only – Admissions by accused in record of interview – Failure by prosecution to prove essential elements of charge cannot be cured by admissions.

Cases cited.

The State v Paul Kundi Rape [1976] PNGLR.96

The State v Delga Puri & Tapri Maip [1982] PNGLR.398

The State v Tom Morris [1982] PNGLR.493

The State v Jenny Kebana Peter (2005) N2813

The State v Roka Pep (No.2) [1983] PNGLR.19

State v Aige Kola [1979] PNGLR.620

State v Lasibose Kuriday (1981) N300

State v Wally Kason (1996) CR.No. 1481 of 1995

Fred Eiserman v Nanatsi [1978] PNGLR.457

State v Eddie Sam (2004) N0.2521

John Beng v The State [1977] PNGLR.115

Biwa Geta v The State [1888-89] PNGLR.263

State v Yakoto Imbuni & 4 Ors. [1997] PNGLR.426

State v Anis Noki [1993] PNGLR. 426

Other cases cited.

Subramaniam v Public Prosecutor [1956] 1 W.L.R.965

Surujpaul v R [1958] 1 W.L.R.1050

Counsels.

Mr. L. Rangan, for State

Mr. P.Kaluwin, for Accused

22nd February 2006.

LENALIA, J: The two accused pleaded not guilty to one count of aggravated armed robbery contrary to s.386 (2) (a) (b) and (c) of the Criminal Code, Ch.262. The trial of this case was set to Monday 13th to Wednesday 15th last week. After the charge was read and put to the two accused when they were asked to plea, the two accused entered not guilty pleas. Before the trial was commenced, Mr. Rangan of counsel for the prosecution indicated that, no witnesses would be required by the defence to be cross-examined and therefore, the defence did not want to challenge the documents which the prosecution wanted to tender.

Mr. Kaluwin of counsel for the two accused indicated that though there was no Notice of an expected voir dire trial, the money the subject of the robbery was never stolen and the least the prosecution could have done was to indict the two accused for attempted armed robbery.

The following documents were tendered by consent:

- Statement by witness Elias Makap “A’

- Statement . .. Salomi Makap “B”

- Statement . .. Joe Kinuli “C”

- Statement . .. Martin Pukauliu “D”

- Statement . .. Harry Dale

- Record of interview with Robin Erick “F1 & F2” for Pidgin Original and English version.

- Record of interview with Emil Basilio “G1 & G2” of Pidgin and English translation.

Evidence by the State in this case is this. On 22nd day of December 2003 between 10 and 10.30 am at the Garamut Buying Point situated on the junction to Malakuna No.4 and Warongoi, the victim in this case Peter Embia had just been dropped off by a company vehicle at the buying point to set up in preparation for that day.

He organized the table and set up a few other things. As he was doing this, one of the three men slapped his shoulders. As he looked over his shoulders, he saw three men with one of them pointing the bush knife at him and got Peter’s radio and asked, “Where is the money”.

Some seconds later, two other men came also demanded for money. The two men who came later wore wool hats. Being very frightened for his life, Peter took the bag of money containing K800.00 and gave it to the three armed men. The victim himself did not identify any of those three men. Peter gave a shout but, after the three men had taken the money, they fled into the cocoa and coconut plantation.

The next two witnesses statements that of Elias Makap and his wife

Salome Makap is almost similar. The couple was in their residence in the morning on the date of this robbery. Their residence is situated at the back of the buying point where the robbery took place. After Elias heard Peter calling out for help, he ran to where the buying point is but the robbers already fled. He did not see nor identify anyone of them.

Like Peter, Elias Makap tried to chase the three men but he got frightened because he saw one of the three men threw one hand-grenade to the other and Elias gave up the chase. In fact as soon as they gave up the chase, they all heard a big explosion. The hand-grenade exploded and there is some evidence that, blood stained soil and leaves were seen soon after the explosion.

Salome Makap is married to Elias Makap said just a little time before the robbery took place, she saw three man wearing wool caps carrying ‘pukpuk’ bush knives walking past toward the Garamut buying point. She said, she observed one of them to be Emil. Unfortunately, she does not give the other name of Emil. As well as that, her statement does not reveal the distance from which she stood and identified Emil. I shall return to her evidence.

Joe Kinuli was employed by Bailu Plantation at the time of the robbery. Joe says in his statement that between 6am and 7am he was conducting a normal routine security check when he met three young men standing on the side of the main road. He did not say anything to them but he identified one of them whom he referred to as Emil Basilio. Joe went to his house, had his breakfast and when he returned taking the same route, he saw the same three men again still standing on the same location where he had seen them one or two hours before.

Joe said, he spoke to the three youths and asked them why they were hanging around like that. Joe said, Emil answered him by saying that; they were waiting for some boys to go and prepare local jungle juice. Joe left the three men there and continued to conduct routine patrol around the plantation perimeters. Joe was not at the scene of the robbery. Sometime latter, he heard an explosion. He ran up to the main road then to the buying point where he found Elias Makap and others talking about the robbery.

Marita Pukauliu is a villager from Malakuna No.4 village in Kokopo/Vunamami Local Level Government area. His house is opposite the buying point where the robbery took place. He only heard people shouting that there was an armed robbery and not long after that, he heard a loud bang. When he ran into the cocoa and coconut plantation, he saw a pool of blood on the ground and he ran back as he too was afraid. Obviously, Marita did not identify anyone of the three men who conducted the robbery that morning.

The statement of Orim Konge was objected to by the defence counsel. Orim Konge was the policeman who conducted the record of interview with the two accused. He is the policeman whom the defence wanted to cross-examine in relation to the reason why the two accused declined to sign their records of interviews. Orim Konge was not called by the State.

Only the statement of Harry Dale, the corroborator in this case was tendered. He says he was present throughout the time the record of interview was conducted. He further said, before the record of interview commenced the two accused were each and severally at the time and various dates they were interviewed were given their constitutional rights. He said the two accused were co-operative and they each admitted to what part they played in the armed robbery. Harry also said after the record of interview was completed, the two accused at whatever dates they were interviewed refused to sign their individual records of interviews.

After tendering all the records of interviews and the statements I have discussed above, the State Prosecutor closed the prosecution’s case. Immediately after closure of the State’s case, Mr. Kaluwin of counsel for the two accused submitted that, instead of the two accused giving their evidence and call their witnesses, he wanted to make a submission of no case to answer. In his submission, Mr. Kaluwin said his clients have no case to answer as there is no evidence to establish some essential elements of the charge and to show if the two accused were responsible for committing the crime they are charged with.

The Law.

There are two tests which the court will consider at this stage of this trials as established by the case of The State v Paul Kundi Rape [1976] PNGLR.96. The first of those two tests is, is there some evidence of the essential elements of the charge before the court now which would either prove the elements directly or to enable the court to infer its existence.

As the case law authorities say, this question can only be decided at the end of a trial both for the prosecution and the defence. In other words, it would be wrong for this court to decide now after the prosecution case has been closed if I am satisfied beyond reasonable doubt of the guilt of the two accused: The State v Delga Puri and Tapri Maip [1982] PNGLR.395, see also The State v Tom Morris [1981] PNGLR.493.

The second question I will ask myself is, although there is a case to answer, is there sufficient evidence on which this court could...