The State v Kevin Anis and Martin Ningigan (2003) N2360

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [2003] PNGLR 344
• Date: 07 April 2003
• Year: 2003

Full Title: The State v Kevin Anis and Martin Ningigan (2003) N2360

National Court: Kandakasi J

Judgment Delivered: 4 or 7 April 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Defence consenting to admission of witness statements as evidence for the State—Effect of—Defence going into evidence making a claim not fully disclosed to the State and its witnesses not given the opportunity to comment upon—Fair hearing within the meaning of s37(3) of the Constitution means fair notice of defence to the State and its witnesses—Rule in Browne v Dunn (1893) 6 R 67 (HL) considered and applied—Defence evidence not put to State witness loses credibility—Court at liberty to find in terms of the uncontested evidence without or with little regard to defence evidence—s37(4) Constitution.

2 CRIMINAL LAW—Murder and unlawful wounding from failed armed robbery on highway—Two different vehicles and two different victims—Defence of compulsion raised—Whether the accused acted under compulsion only issue for trial—State's case uncontested and statements of witnesses and records of interviews admitted into evidence with consent of the accused—Accused giving sworn evidence raising defence of compulsion with details for the first time—Defence of compulsion not put to the State witnesses—Rule in Browne v Dunn (1893) 6 R 67 (HL) considered—Inconsistencies in accused evidence and records of interview—No logical explanation offered by accused for being approached by accomplices in the first place—Accused evidence rejected as not being credible—Verdict of guilty returned—s37(3)Constitution—s32(1)(d) Criminal Code.

3 CRIMINAL LAW—Sentence—Murder and unlawful wounding from failed armed robbery on highway—Two different vehicles and two different victims—Defence of compulsion raised—Conviction after a trial—No prior conviction only clear mitigating factor—Pleas of youthfulness rejected due to prevalence of offence by youthful offenders—Claim of not playing a major part in the commission of offence rejected because of s7 of the Code—Mere utterance of "sorry" after conviction following trial meaningless—32 years concurrent sentence less time spent in custody awaiting trail and sentence imposed—s7, s300 and s322 Criminal Code.

4 The State v Micky John Lausi (2001) N2091, Tapea Kwapena v The State [1978] PNGLR 316, The State v Angela Colis Towavik [1981] PNGLR 140, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Edward Toude (No 1) (2001) N2298, The State v Tony Pandau Hahuahori (No 1) (2002) N2185, Vaii Rocky Maury v The State (2001) SC668, The State v Ngetto Rex Rongo (2000) N2035, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Lawrence Simbe v The State [1994] PNGLR 38, The State v Joseph Ulakua (2002) N2240, The State v Tom Keroi Gurua (2002) N2312, The State v Wesley Nobudi (2002) N2510, Peter Naibiri and Kutoi Soti Apia v The State SC137, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Tumu Luna (2002) N2205, The State v Kauva Lavau and Kamo Kauva (1996) N1523 and Browne v Dunn (1893) 6 R 67 (HL) referred to

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Kandakasi J: The two of you pleaded not guilty to one charge each of murder and unlawful wounding contrary to s300(1)(b)(i) and s322(1)(a) of the Criminal Code. A trial therefore took place on 2 April after having arraigned both of you the previous day.

You claim to have acted under compulsion or in simple terms, at the threat and or force of another person. That was the only issue for trial. This meant that everything else about these offences stood uncontested.

The uncontested evidence is this. In the early hours of 21 October 2001, between 12.00 midnight and 2am, an armed gang of six men attempted to hold up two motor vehicles travelling on the Sepik Highway at Maringe, in the Yangoru District of this Province. The first motor vehicle was a Mitsubishi Canter truck, white in colour. The second motor vehicle was a "PMV", a Toyota Dyna truck. That vehicle followed shortly the first vehicle in the same direction as the first, heading for Wewak from Maprik way. The gang's aim was to hold up the trucks and steal from their occupants' vanilla and other properties.

A John Yuibiri and another only identified as a Sakarias appear to be the leaders of the gang. They were the ones who had a 303 rifle and a home made gun. They approached a number of young men, including you two for the purpose of executing a planned hold up of vehicles travelling on the Sepik Highway. They are also the ones that appear to have stepped in front of the two vehicles from their hiding when the vehicles respectively appeared at the scene of the crimes. It is also clear that they are the ones that shot at the vehicles when their drivers failed to stop at their command.

The gunshots fired at the two separate vehicles resulted in head injuries, requiring a number of stitches to a Philip Mali Kindo. Mr Kindo was a passenger in the first vehicle and the gunshot fired by the gang reached him on his head. The gunshot at the second vehicle resulted in the death of a passenger in that vehicle, namely a Jim Patiken (the deceased).

Immediately upon the shooting dead of the deceased, the gang including you two, escaped back into your village, Merenge which is also in the Baimuru area where Maringe, the scene of the crimes is also located. The rest of the gang, including Mr John Yuibiri escaped back into your own villages.

Following report of the incident to the police by the drivers of the two vehicles and their passengers, police came to your village. Whilst in the presence of the police, your village leaders got you two and the rest of the young men in the village to account for your whereabouts at about the time of the robbery. Through this process, you admitted your involvement and the police arrested you and had you charged over the incidents. Mr John Yuibiri was also apprehended with your help in terms of you identifying him and his village.

In your records of interview, you admitted to your involvement both in the planning and the attempted execution of the armed hold up. Except for a brief mention without anything further in Martin Ningigan's record of interview of some force being used to secure your involvement, there is otherwise no detailed account of any force being used by John Yuibiri and his other gang members against the two of you. However, in your defence at the outset of the trial and later in your evidences you claimed being forced into the attempted hold up that went bad by John Yuibiri at gun point for over 6 hours. This is the very and only issue for me to determine on the basis of which your guilt or innocent lies.

I therefore start with the question of, what is the evidence before me on this? For the State is a number of witness statements you agreed to be admitted into evidence. They consist of a total of 14 witness statements marked as exhibits "A" to "M" and your respective records of interview marked as exhibits "O1 to P2".

Your evidence against the State's evidence is your own respective sworn testimonies orally given in Court on Wednesday the 2nd of this instant.

Apart from providing the basis for the undisputed facts as noted above, the evidence for the State is simple. You were free and willing participants both in the planning and execution of the armed hold up of vehicles on the Sepik Highway at Maringe that went wrong, resulting the death of the deceased and injury to Mr Kindo. The statement of Mr Bunbun says, he saw six men trying to effect a hold up of the first motor vehicle, which was driven by him. He says two men ran out to the road, another two each on either side of the motor vehicle. This is supported by Tobias Teddy's statement, who says he saw a total of six men trying to hold up the vehicle he was travelling on. That was the vehicle in which the deceased was. Another passenger in the same vehicle as the deceased, Mathew Giort confirms there were six men trying to effect the hold up and failing that, shot the deceased dead.

Alois Nauruangi's statement speaks of seeing a total of about four men, one first running out onto the road with a gun from the left, running to the right while three others approached from the left side of the road. The driver continued to drive on and the men with the gun on the right side fired the gun at close range and shot dead the deceased. This witness was the deceased's brother travelling with him at the back of the vehicle.

The statement of driver of the second vehicle, Mr Harry Manmale states that he saw three men coming out onto the road with one of them carrying a gun. He therefore...