The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (2001) N2298

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2298
• Date: 16 October 2001
• Year: 2001

Full Title: The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (2001) N2298

National Court: Kandakasi J

Judgment Delivered: 16 October 2001

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Admission of witness statements by consent—Party consenting not at liberty to call rebuttal evidence on the basis of rule in Browne v Dunn (1893) 6 R 67 (HL) and to question credibility of witnesses—If rebuttal evidence is called little or no weight should be placed on such evidence—Acceptance of such evidence may amount to unfair trial for party consenting.

2 CRIMINAL LAW—Particular offence—Aiding and abetting armed robbery—Robbery of a boat—All of State's evidence by consent—No direct evidence against accused—Only inference open on the available evidence pointing to guilt of accused—Return of guilty verdict—Criminal Code s386(1), s386(2)(a) and (b).

3 EVIDENCE—Effect of evidence admitted by consent—Prevents compliance of rule in Browne v Dunn (1893) 6 R 67 (HL) and consenting party from presenting rebutting evidence—If rebuttal evidence is presented little or no weight should be attached—Court still obliged to assess weight of evidence tendered by consent or not rebutted before decision on verdict.

4 EVIDENCE—Assessment of—Inconsistencies between prior statements in record of interview and subsequent oral evidence—Inferences to be drawn from totality of evidence—Matter of logic and common sense—Evidence or claims inconsistent with logic and common sense not credible—Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself—Only inference open accused evidence incredible and unreliable.

5 WITNESSES—Credibility of witnesses—Statements of witnesses tender by consent amounts to no contest on their credibility—Accused person giving brief oral evidence in contradiction of statements made in record of interview with no explanation of the reasons for the inconsistencies—Such witnesses are untruthful and unreliable in the absence of any credible explanation for such inconsistencies.

6 Browne v Dunn (1893) 6 R 67 (HL), The State v Ogadi Minjipa [1977] PNGLR 293, The State v Saka Varimo [1978] PNGLR 62, The State v Kauva Lavau and Kamo Kauva (1996) N1523, The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498 and Garitau Bonu and Rosanna Bonu v The State (1997) SC528 referred to

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Kandakasi J: Edward Toude ("Edward"), Walter Yogana ("Walter"), Tana Barida ("Tana") and John Taylor Anani ("John"), you all pleaded not guilty to one count of armed robbery contrary to s386(1) and s386(2)(a) and (b) of the Criminal Code ("the Code") allegedly committed on 22 March 2001 at Tarakwaruru Wharf. That was here in the Milne Bay Province, on a boat known as MV 434 (or "the boat") from where a sum of K14,700.00 ("the money") belonging to Kiwali Exports of Alotau was stolen. You did not carry out the robbery but the State alleges that by virtue of s7 of the Code, you are principle offenders. This is because it alleges you aided and abetted the commission of the offence by a gang numbering about 6 men armed with 2 factory made shot guns, 3 metal pipes and one double–edged grass knife being dangerous weapons.

The specific allegations against each of you are that, there was a plan for the robbery and each of you knew of it and played the following parts:

· Edward—you were the supercargo on the boat and were in charge of the money on the boat. You went to Tana and spoke to him that day before the robbery, thereby suggesting that you spoke to him about the intended robbery.

· Walter—you were on the boat at the time of the robbery. Though you had no right to, you had the keys to the captain's cabin ("the cabin") where the money was kept. The captain did not know of you having the key but Edward did. When the robbers came onto the boat, you opened the cabin door thereby making it easy for the robbers to enter and steal the money.

· Tana—you knew of the robbery before it took place and got paid for your part in it. Because of that you failed to do anything to prevent the robbery from taking place.

· John—you supplied one of the guns used by the robbers and got paid for it.

The State admitted into evidence with your consent a number of statements in evidence against you. These are the statements of:

1. Beryl Kibikibi of Kiwali Exports undated—Exhibit "A"

2. William Inia dated 27 March 2001—Exhibit "B"

3. Jerome Kunsoro dated 27 March 2001—Exhibit "C"

4. Charles Sigerua dated 31 March 2001—Exhibit "D"

5. Kaniku Togunitu dated 4 April 2001—Exhibit "E"

6. Kinizi Wingi dated 4 April 2001—Exhibit "F"

7. Warriupa Jeffrey dated 5 April 2001—Exhibit "G"

8. Kinzi Wingi dated 18 April 2001—Exhibit "H"

9. Kinzi Wingi dated 4 April 2001—Exhibit "I"

10. Kinzi Wingi dated 10 April 2001—Exhibit "J"

11. Warriupa Jeffrey dated 5 April 2001—Exhibit "K"

12. Warriupa Jeffery dated 5 April 2001—Exhibit "L"

13. Robert Bala dated 3 April 2001—Exhibit "M"

14. Kinzi Wingi dated 4 April 2001—Exhibit "N"

15. Record of Interview for John Taylor Anani—Exhibit "O"

16. Robert Bala dated 7 April 2001—Exhibit "P"

17. Record of Interview for Tana Barida—Exhibit "Q"

18. Record of Interview for Edward Toude—Exhibit "R"

19. Record of Interview for Walter Yogana—Exhibit "S

In addition to these documentary evidence, the State also called detective constable Warriupa Jeffery who gave a brief sworn evidence. He is the policeman who carried out the necessary investigations, conducted the necessary records of interviews and charged each of you. He was not cross–examined in any meaningful respect to cast any doubt on the State's case by the defence, which I find was consistent with the defence having consented to the State's evidence.

According to Beryl Kibikibi's statement (exhibit "A"), MV 434 was schedule to travel out of Alotau in the midnight of 18 March 2001, bound for Empflats Island through Wedau, Pem, Taraks for overnight and then Goodenough Island. As the captain and the supercargo were both drunk, she left a sum of K15,000.00 in cash with a Jacob and Jerome (securities) to hand them over to the captain or the supercargo to buy marine products. The boat left as scheduled and called into Wedau and left for Pem on 21 March 2001.

On 23 March 2001, a message was left for her to call regarding MV 434 at Tarakwaruru. She returned the called and spoke to an Elsie at the District Office there and learned of a hold up of MV 434. After initially failing to speak to either the captain or the supercargo, she eventually managed to speak to Edward, the supercargo. Her first question to Edward was "How much was stolen?" and Edward answered "everything." So she next asked "Did you buy any produce?" and he answered "Approximately K300.00. The rest were left in the trunk." She then questioned him as to why he left all the money in the trunk instead of hiding them or keeping them in a secured place. Edward's response was, because he was sick and not feeling well. She then asked him as to his and the other crews' whereabouts or activity at the time of the robbery, and he told her that they were all on the boat, some sleeping because it was midnight while others were listening to music from a cassette player. She then decided not to ask any more questions until they returned to Alotau and asked them to return to Alotau right away. Thereafter, she reported the robbery to police.

MV 434 returned to Alotau in the early hours of 24 March 2001. The captain and the supercargo, Edward and the rest of the crew went to her office to report on the incident. She ascertained that they planned that only one person would speak for them all. Instead of that happening, she questioned them one by one. Through that process, she found out that Edward lied to her on the telephone and his report at the office when he said he was on MV 434 when the robbery took place. He was in fact not on the boat.

The key evidence for the State is from two sources. First is the statement of Inia William ("Inia") a passenger bound for Goodenough and was on MV 434 when the robbery took place. He says in his statement (exhibit "B") MV 434 after leaving Alotau and calling into the other destinations along the way, headed for Tarakwaruru and the North Coast of Goodenough Island to buy marine products for Kiwali Exports. After going to a number of other places, she docked in at Tarakwaruru at about 400 pm on 21 March 2001 and overnighted there. The captain of the boat left the boat with the rest of the crew and cargo still on board and went to visit his wife at Irikaba village.

The next morning about 5.00 am, the supercargo, Edward took control of the boat and sailed to Pem to...