Vaii Rocky Maury v The State (2001) SC668

• Jurisdiction: Papua New Guinea
• Judge: Injia J, Sawong J, Kandakasi J
• Judgment Date: 20 July 2001
• Citation: (2001) SC668
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC668

Full Title: Vaii Rocky Maury v The State (2001) SC668

Supreme Court: Injia J, Sawong J, Kandakasi J

Judgment Delivered: 20 July 2001

SC668

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 55 of 2000

VAII ROCKY MAURY

-Appellant-

V

THE STATE

— Respondent-

WAIGANI: INJIA, SAWONG, KANDAKASI, JJ.

2001: 25 APRIL

: 20 JULY

APPEAL — Appeal against conviction — Appellant obliged to show identifiable error to allow interference of trial judge's finding — No identifiable error demonstrated — Appeal dismissed

EVIDENCE — Circumstantial evidence — Appellant present in a stolen vehicle used to commit other offences and sustain injuries from gun shot injuries from a gunfire exchanged with police — Only inference reasonably open on available primary facts point to guilt of the appellant — No error in trial judge finding the appellant guilty — Appeal against conviction dismissed

Cases Cited

Regina v. William Taupa Tovarula & Ors [1973] PNGLR 140

R. v. Coney (1882) 8 Q.B.D. 534

Porewa Wani v. The State [1979] PNGLR 592

Paulus Pawa v. The State [1981] PNGLR 498

The State v. Tom Morris [1981] PNGLR 493

Garitau Bonu & Rosanna Bonu v. The State (1997) SC528

Ian Napoleon Setep v. The State (unreported and unnumbered judgement delivered on 18th May 2001) SCRA No. 42 of 2000

Counsels

Mr. F. Pitpit for the Appellant

Mr. R. Auka for the Respondent

20th July, 2001

BY THE COURT: The appellant lodged an appeal against both his conviction and sentence on one count each of unlawful use of a motor vehicle, armed robbery and unlawful wounding. But he abandoned his appeal against sentence at the hearing of the appeal. In relation to conviction, he contends that there was no direct evidence connecting him to the commission of the offence for which he was found guilty and convicted and sentenced. The State argues that although there was no direct evidence of the appellant committing the offences, there was sufficient evidence to find the appellant guilty and convict him. Thus the learned trial judge did not err in his judgement.

The issue before us is therefore, whether the trial judge erred in finding the appellant guilty when there was no evidence directly connecting him to the commission of the offences. This issue can be determined by looking at the evidence that was presented before the National Court and what use the Court was entitled to make out of them.

The facts are not in dispute. On the afternoon of the 1st of October 1998, a motor vehicle described as a Toyota 4 Runner, Registration Number BAF 433 was stolen at gunpoint from a Julie Giheno by three armed men. One of the three men was identified as Petrus Oa, the appellant's co-accused. The numberplate on the stolen vehicle was then changed and used without the owner's consent.

On the morning of the next day, the vehicle was used to commit an arm robbery at the Jasmire Supermarket. The vehicle was then used as a get away vehicle but police were able to catch up with the robbers with the vehicle. Before the police could arrest the robbers, an exchange of gunshots took place between the police and the occupants of the vehicle.

The gun shoot out resulted in injuries to a policemen who was trying to stop the vehicle from getting away after having committed the robbery at the Jasmire Supermarket. The appellant sustained a gunshot injury to one of his legs. Eventually the police overpowered the robbers and arrested some of them. The appellant was one of the persons arrested and charged.

None of the State witnesses identified the accused as being involved in the offences. There was no evidence directly connecting the appellant to the commission of each of the offences. The only direct evidence against him was his statement in the record of interview. The record of interview was part of the State's evidence admitted with the consent of the appellant.

In his record of interview the appellant stated that he got into the vehicle after stopping it at around the Timothy Store. He says he does not know the driver or any of its occupants. Despite that, they were able to stop for him, who was by that time, very drunk. After the vehicle had stopped for him, he says he asked the driver which way he was going and the driver told him that he was heading for the Manu Auto Port. The appellant then says he asked if he could be given a lift to Manu Auto Port and he was allowed into the vehicle. The appellant says he did not know at that time that, the vehicle was stolen and that it was going to be used for the robbery of Jasmire Supermarket. He says he was not a party to the commission of the robbery at the Jasmire Supermarket and the subsequent exchange of gunfire with the police. He claims he was at the relevant time sleeping because of drinking beer the whole night and only woke up at the sound of gunfire and after receiving a gunshot injury to one of his legs from which he was bleeding. When he woke up he says he saw a highlands man was shooting at a police vehicle.

However this question and answer in his record of interview runs contrary to what he says earlier and we quote:

Q.27

"Next day the four of you drove to East Boroko and robbed the Manager of Jasmire Supermarket of a tin box containing cash money and then escape towards Lahara Avenue and were confronted by police and at that time exchange fire with police and shot the police vehicle and wounded a policeman is that correct? Ans. Yes."

Based on the above evidence, the story appears to be this. On the 1st of October 1998, Julie Gehino's vehicle, a Toyota 4 Runner was stolen at gunpoint by three armed men. One of the armed man was the appellant's co-accused, Petrus Oa. The numberplate of that vehicle was changed to a different one and the vehicle was subsequently used to commit an arm robbery at the Jasmire Supermarket. After the robbery the robbers then tried to escape in the stolen vehicle when they were caught up by police and an exchange of gunfire ensued. The appellant was in the vehicle both at the time of the robbery of the Jasmire Supermarket and at the time of exchanging gunfire with the police. That was immediately after the robbery at Jamsmire Supermarket. The exchange of gunfire resulted in injuries to a policeman. It also resulted in juries to one of the appellant's leg.

The question that needs to be asked is this. Did the undisputed facts support a finding that the appellant was in fact involved in the commission of the offences he was charged with?

The learned trial judge addressed that issue in this manner at page 152 of the transcript:

"The presence of Rocky in Toyota 4 Runner when the vehicle was used before the robbery, during the robbery and exchange of gun shots with the police along Lahara Avenue subsequent to the robbery cannot be disputed. Indeed he raised no issue. The issue is whether he was a participant in all these, directly or as principal under section 7 of the Code."

Then the learned trial judge restated what the appellant said in his record of interview and found as follows:

"What he has said is too good to be of any value. First of all, he had to be best friends of the people in the vehicle in order to stop for him. There was no protest when they did not stop for him to get out. There was little to no protest at the robbery scene. Despite the excitement, he dozed off to sleep then he woke up when he heard gunshot, one of which injured his leg.

I disbelieve him. His presence was not accidental. The State's evidence proved that this was not a fun trip, but properly planned and they all participated in all these activities. As to the injury caused to the constable, it was done to save the whole group from arrest."...