Vaii Rocky Maury v The State (2001) SC668

• Jurisdiction: Papua New Guinea
• Citation: (2001) SC668
• Date: 20 July 2001
• Court: Supreme Court
• Year: 2001

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

Supreme Court: Injia J, Sawong J, Kandakasi J

Judgment Delivered: 20 July 2001

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

2 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

3 R v ToVarula [1973] PNGLR 140, R v Coney (1882) 8 QBD 534, Porewa Wani v The State [1979] PNGLR 593, Paulus Pawa v The State [1981] PNGLR 498, The State v Tom Morris [1981] PNGLR 493, Garitau Bonu and Rosanna Bonu v The State (1997) SC528 and Ian Napoleon Setep v The State (2001) SC666 referred to

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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 judgment.

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 1 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...