The State v Timothy Thomas Moriloma (No 1) (2003) N2394

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 05 May 2003
• Citation: (2003) N2394
• Court: National Court
• Year: 2003
• Judgement Number: N2394

Full Title: The State v Timothy Thomas Moriloma (No 1) (2003) N2394

National Court: Manuhu AJ

Judgment Delivered: 5 May 2003

N2394

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE AT LAE

CR. 385 of 2002

THE STATE

- vs -

TIMOTHY THOMAS MORILOMA (No. 1)

Lae: Manuhu, AJ

2003: 22nd April & 5th May

CRIMINAL LAW - Particular offence - Armed robbery – Identification – Weighing of evidence – Effect of exercise of right to remain silent on accused person’s evidence.

Cases cited:

The State v Simon Sulu Uraken and Jack Charles Joku (1990) N883.

The State v Tony Pandau Hahuahori (No. 1) (2002) N2185.

Ms C. Nidue, for the State.

Mr Mwawesi, for the accused.

JUDGMENT ON VERDICT

5th May 2003.

MANUHU, AJ: The accused, namely, Timothy Thomas Moriloma, was indicted on two related counts of armed robbery. The first count is that on 13th August 2001, at Mangola Street, Lae, the accused stole from a Maria Kalopei (“Kalopei”) with threats of violence the sum of K2,000.00 in cash, the property of Lings Freezers. It is alleged that the accused was armed with a factory made pistol and was in the company of others. The second count followed from the first. It is alleged that the accused stole from Emmanuel Mark (“Mark”) with threats of violence a vehicle, namely, a single cabin Mazda with registration number BBC 600, the property of Guard Dog Security Services, which was used as a getaway vehicle. It is alleged that the accused was still armed with a factory made pistol and was in the company of others during the commission of the second robbery.

Evidence led by the prosecution shows that on 13th August 2001, between 2.00pm and 3.00pm, the accused and his accomplices went to Mangola Street where the business premises of Lings Freezers was situated. They were armed with a factory made pistol and some knives. They then held up cashier Kalopei by pressing a knife against her chest and by ordering her to open the till. She pressed the cash register and when it opened she was pushed. She hit herself against the counter and fell. The accused and his accomplices then took the contents of the till totaling about K2,000.00 and rushed out of the store. They then pointed the pistol at driver Mark and his crew, and ordered them to get out of their vehicle.

Mark’s uncontested evidence is that he had driven to Mangola Street in response to a panic alarm at the premises of Lings Freezers. He heard a gun shot as he drove into the premises. Soon thereafter, a person, believed to be from the Sepik area came to his side and pointed a “revolver” at his head and ordered him to get out of the vehicle. That person and five others then got into the vehicle and drove away from the scene.

As the stolen vehicle approached the roundabout where the Rainbow store is, a shootout took place between the robbers and prosecution’s witness, James Wong

1 Wong was employed by Seeto Kui, a company associated to Lings Freezers. Wong had been earlier radioed about the robberies.

1 (“Wong”). In the process, two robbers jumped off the vehicle and ran into the market. The remaining robbers continued their getaway through Air-corps Road and eventually abandoned the vehicle at the business premises of UNW. There, prosecution’s witness, Jim Kari (“Kari”), saw two robbers got off the vehicle. One ran into the UNW premises while the other ran to the business premises of New Guinea Motors Winders with the money bag. The latter was apprehended by Kari and later handed to police.

Sometimes later, prosecution’s witness Tim Gidisa (“Gidisa”) approached the abandoned vehicle. He saw a person wearing a pair of light blue jeans and shirt lying on the back of the stolen vehicle. Gidisa also figured out that the vehicle had lots of bullet marks and, the person at the back of the vehicle, the same person that had the money bag, had been shot around his abdomen.

2 An innocent bystander was also ‘accidentally’ shot dead during the shootout.

2

Prosecution’s witness Otto Tivon (“Tivon”) recalled going to see the abandoned vehicle. The robbers had obviously fled by then. He then drove off to check the old airport and the drain near ICI Dulux premises. He returned to the stolen vehicle and was told that a suspect had been seen at the premises of Laurabada Secondhand Clothing. They went there and discovered fresh blood stains. They followed the stains to the back of the building where some pallets were stacked. The security guards located the accused underneath the pallets and advised the police. He was motionless. As the accused was assisted out, a fresh wound was seen on his chin. He was also wearing a pair of jeans that was too small for him. The pair of jeans was pulled off, and underneath was a sportswear. At that moment Tivon noticed a scar on the accused person’s calf muscle. The accused was taken to the police vehicle and later to the police station.

Prosecution’s witness Carl Foro (“Foro”) accompanied Tivon at the relevant time. Relevantly, when they returned to the abandoned vehicle, a security guard at Lauraba Secondhand Clothing signaled for them to go to where he was standing. They were then advised that a suspect had fled in that direction. They followed the side footpath to the back of the building where a stack of pallets was. Foro could see the suspect under the pallets. He had blood on his body and face. Foro assisted in pulling out the suspect who was wearing only a pair of jeans. He was very weak. He also said: “Yupla halpim mi?”

3 (Will you help me?).

3 to which Foro relied: “That’s what we’re trying to do”. The suspect was then taken to the back of the police van. When questioned during examination in chief about the identity of the suspect, the witness pointed to the accused.

The evidence so far shows that only two suspects were apprehended. One was the one with the money bag and shot in the abdomen. The other was the accused, who was located from under the pallets. According to the evidence of prosecution’s witness George Avali (“Avali”), these two suspects were later brought to the hospital for treatment. However, the suspect that was shot in the abdomen later died. The remaining suspect was the accused.

Avali visited the accused, who gave his particulars as Timothy Thomas Moriloma, twenty five years old, of Baimuru, Yangoru, East Sepik Province. He had a dressing to his lower right jaw as a result of a bullet wound. The accused was cautioned and questioned about the subject robberies. His answer was that he was the driver of the stolen vehicle.

On 16th August Avali returned to the hospital to see the accused but he was not there. He was told that the accused had escaped in the evening of 14th August. The accused was, however, recaptured on Saturday 27th October 2001 and was subsequently charged for the armed robberies.

The accused was the sole witness for himself. He strongly denied being involved in the robberies. He said he was in his house with his family on the day the robberies took place. He said he was apprehended on 28th October 2001, which was a Sunday, when he was returning from Church service. He was sharing with his wife about the preaching when he was apprehended. Avali, he said, did not interview him until Wednesday of that week. He told Avali that his name was Thomas Leni Marinae and not Timothy Thomas Moriloma, but Avali said to him to make that explanation to the court.

There is no dispute that the robberies took place. Consequently, the prosecution’s witnesses’ outlined descriptions of the robberies, subject to the pending issue of identification and or involvement, are accepted.

The accused denies involvement in the robberies. During...