The State v Wama Dua, Daniel Bema & John Goga (2005) N2854

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 13 May 2005
• Court: National Court
• Citation: (2005) N2854
• Docket Number: CR 1111, 1113, 1114 of 2003
• Year: 2005
• Judgement Number: N2854

Full Title: CR 1111, 1113, 1114 of 2003; The State v Wama Dua, Daniel Bema & John Goga (2005) N2854

National Court: Kirriwom, J

Judgment Delivered: 13 May 2005

N2854

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1111, 1113, 1114 OF 2003

THE STATE

v

WAMA DUA, DANIEL BEMA & JOHN GOGA

LAE : KIRRIWOM, J

2005 : 05th, 10th & 13th May

CRIMINAL LAW – Particular Offence – Robbery – identification – recognition of known persons - eye witness account supported by circumstantial evidence of subsequent conduct of accused after the offence – evidence of suspected accomplice – no evidence that prosecution eye witness was an accomplice – evidence untainted and reliable – evidence of identification was reliable – verdict of guilty.

Evidence – Accomplice evidence – Need for corroboration – Proof of witness as accomplice – Mere suspicion or accusation insufficient.

Practice and Procedure – record of interview – exculpatory statement exonerating one accused by co-accused – co-accused failed to appear and not on trial – record of interview inadmissible per se – evidence irrelevant and immaterial.

Cases cited:

1 The State v Titeva Fineko [1978] PNGLR 262

2 The State –v- Amoko-Amoko [1981] PNGLR 373

3 Reg v Gregory Ino Gemai [1974] PNGLR 2

4 John Beng v The State [1977] PNGLR 115

Counsel:

J. Wala for the State

R. Yombon & Mr Zilong for the Accused

DECISION

13th May 2005

KIRRIWOM, J.: Wama Dua, Daniel Bema and John Goga have all been charged with armed robbery. Indicted together with them also was one Peter Saina who had escaped from custody while on remand in Buimo and is believed still at large.

The State case is that in the early hours of the morning between 1:00am and 1:30am or thereabouts on 16 December 2002, the accused before the Court in company of three other accomplices who have not been apprehended held up the lone security guard and one Kaden Koyanda, a Chef with Bugandi Shell Service Station with guns and knives and stole money in cash totalling K37, 332.00 that belonged to the Shell Service Station.

All three accused denied the charge and raised defence of alibi. The issue in the case was one of identification and who the court believed.

State called several witnesses including Kaden Koyanda, its only eye witness who had face to face encounter with the robbers on the night in question. Although he is the prosecution star witness on whose evidence the prosecution case substantially rests, his story also adds to the overall chain of circumstantial evidence presented before the Court by the State and the defence that go to establish the prosecution allegation of robbery.

There is no dispute that there was robbery at Bugandi Shell Service Station on the night of 15th December 2002 or in the early hours past midnight of 16th December 2002. The thieves went to the premises during a heavy downpour of rain that night while the premises was on stand-by power after a black-out from the main city power supply. After immobilising the security guard and Kaden Koyanda by tying them both up and placing them in a shed at the back of the Service Station, the criminals then used oxy cylinder to cut open the steel door to the office and also cut into the steel safe and stole the money and escaped. Some money bags, especially coins were left lying around on the floor in the office.

It is also not disputed that on the night of this robbery, these three accused were drinking alcohol and the following morning John Goga and Daniel Bema were apprehended at 2-mile block while asleep. Daniel Bema was arrested together with two moneybags, one was empty and the other still had coins in it, approximately K800 when counted subsequently at the police Station, and taken to the station with them. I will explain how he came into possession of those moneybags as far as he is concerned when I come to his evidence later in the judgment.

John Goga was also apprehended when he was fast asleep except for Wama Dua who was arrested the following day at his work place at Bugandi Shell Service Station. I will discuss their side of the story later in the judgment.

The issue in this trial is one of identification. The only witness who saw and identified these three accused is Kaden Koyanda. Defence sought to show in the trial that Kaden Koyanda was not an independent eye witness as he claimed, he was indeed an accomplice to the robbery and he was part of the group of unknown persons who committed the robbery. Defence tried to show this in the evidence of Wama Duma who claimed he saw Kaden Koyanda’s wife and son in-law carrying into their house a money bag hidden under the shirt early in the morning about 6:30am to 7:00am after the robbery.

The three accused were identified by Kaden Koyanda who saw them at arms length when they pointed the gun at him, bound his legs together with rope and tied up his hands behind his back and left him in the shed together with the security guard whom they had earlier tied up and left there. Kaden Koyanda is a chef who prepares food for the fast-food inside the service station. On the night of 15th December 2002 he started work at about 9pm. After he cleaned up in the kitchen and took the meat out of the freezer and placed it outside to be defrozen for cooking in the morning, there was power blackout. It was raining heavily and he went to the back and started the stand-by generator. Back inside he saw his sleeping area was flooded with rain water from a leak in the roof. He started sweeping the water out and as soon as he opened the back door and poked his head out to sweep out the water, he was confronted by armed men, one pointing gun at his cheek and another pointing a knife at his nose. There was light, a fluorescent tube, above the door that illuminated the place outside the door. He had already seen them and recognised some of them when they blindfolded him with a piece of cloth fastened around his eyes.

He said they were not masked except for Wama Dua who wore a black cap on his head which he pulled down his face. Amongst the persons he saw were Peter Saina whom he called Peter Rimbu. He was from Kagua Southern Highlands, a former employee of the company whom he knew well as a fellow Southern Highlander. Others persons he saw were Wama Dua, Daniel Bema whom he referred to as Six Battery, Muli Kapia and John Goga whom he referred to only as Goga. He said he knew them all. He said Wama Doma was a security guard at the Service Station but was off that night because Sunday was usually his off-days. He said both Goga and Six Battery were regular faces at the Service Station and at 2 mile block where they all live together. There is no dispute about Daniel Bema’s nick name as Six Battery. Everyone in the block calls him by that nick name and he has come to be known by it as he states so in his record of interview. He said he knew these persons quite well and he recognised them that night. After tying him up they left him on the wet floor but he told them to take him to the potato shed. That is where they left him together with the security guard who was also already tied up there. They covered them both with canvas and stationed someone there to guard them as the others went about breaking open the office door with oxy. Sometime later when he and the security guard felt satisfied that the thieves had decamped as the noises had subsided, they freed themselves and inspected the damage. The thieves took the money from the safe which they also cut open with oxy and left behind on the floor were bags of money filled with coins.

He said he gave the names of the persons he saw to the Police in the morning. Defence wanted to discredit his evidence by trying to show that he was apprehended as a suspect in the robbery together with the accused now before the court and he did not call their names that same morning of the robbery until much later only to buy his freedom. It was the defence proposition that the witness himself and other unknown persons who were responsible for the robbery. This suggestion by the defence did not fit in with the general trend of the evidence when the accused John Goga and Daniel Bema were apprehended already that same morning by the Police following raid of 2 mile block which was the nearest settlement to the Service Station except for Wama Dua who was arrested the next day on 17 December, 2002. Unfortunately both Wama Dua’s evidence and Daniel Bema’s evidence do not advance the defence as suggested by their counsel especially when Daniel Bema was found with bags of money and Wama Dua by his own evidence deposes to seeing money bag being hidden inside the shirt by Kaden Koyanda’s son in-law as he and Koyanda’s wife returned to the house that morning. One way or another, both accused had something to do with either being in possession or seeing money bags being part of the bags of coins stolen from...