The State v Sul Gunua (2012) N4642

• Jurisdiction: Papua New Guinea
• Judge: Kangwia AJ
• Judgment Date: 21 March 2012
• Citation: (2012) N4642
• Docket Number: CR No 34 of 2010
• Court: National Court
• Year: 2012
• Judgement Number: N4642

Full Title: CR No 34 of 2010; The State v Sul Gunua (2012) N4642

National Court: Kangwia AJ

Judgment Delivered: 21 March 2012

N4642

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 34 of 2010

THE STATE

V

SUL GUNUA

Goroka: Kangwia AJ

2012: 12 & 21 March

CRIMINAL LAW – Armed Robbery- Circumstantial evidence –Credibility of evidence – Demeanour of witness assessed to establish credibility in evidence – Credibility determined through commonsense and logic test - Issue of identification of accused as an offender- Identification of accused inferred despite lack of direct evidence- Verdict of guilty returned.

Cases cited:

Papua New Guinea Cases

The State v Ali Kei Paiya (CR 478 of 2004),(Unnumbered &Unreported Judgement of 9 August 2005);

The State v Martin Maso Naipao (CR 92 of 2005) (Unnumbered & Unreported Judgement of 23 June 2005);

The State v So’on Taroh (2004) N2675;

Paulus Pawa v The State ([1981] PNGLR 504;

The State v Gari Bonu & Anor [1996] PNGLR 48;

The State v Tom Morris [1981] PNGLR 493;

The State v Cosmos Kutau Kitawal (No 1) (2002) N2245;

The State v Peter Molihombu (2003) N2365;

The State v Immanuel Bais (2003) N2416

Overseas Cases

Barca v The Queen (1975) 133 CLR 104;

Woolmington v R (1935) AC 462;

Counsel

B.Gore, for the State

F.Kua, for the Accused

21 March, 2012

1. KANGWIA AJ: Mr. Sul Gunua was charged with one count of armed robbery under section 386 (1), (2) (a) & (b) of the Criminal Code Act. At the close of the case for the State he made a no case to answer submission. The Court ruled that he had a case to answer and the defence called evidence. This is now the decision on verdict.

2. The facts were not disputed and are as follows. On 20 July 2009 there was an Armed Robbery at Dae Wong Trading - West Goroka. Four men armed with a shot gun and a pistol held up the employees and made off with more than K97, 654.00 cash and K456. 00 worth of goods. The robbers made their get away in a company vehicle also.

3. The vehicle was abandoned near Kamaliki and the suspects escaped on foot. Police gave chase soon after. Some five hours later the accused was apprehended in a coffee garden by two policemen. At the time he was apprehended he had a factory made shot gun, two live cartridges and a lot of cash on him. The cash was later totalled on the indemnity receipt to be K6, 050.00. The accused was charged thereafter. He pleaded not guilty and the matter went to trial.

4. The evidence for the State consisted of the following documents and exhibits tendered by consent:

1. The record of Interview in the Pidgin version.

2. The record of Interview of the English translation.

3. Police indemnity receipt showing K6, 050.00.

4. Statement of Alcantara Calito dated 24 July 2009 which was given to police.

5. Statement of Utove Sok dated 24 July 2009 which was given to police.

6. Statement of Evelyn Pius dated 24 July 2009 which was given to police.

7. Two live and red cartridges.

8. One factory made shotgun.

5. The statements were made to police Investigators and certified as true by the makers. The statements of persons tendered by consent are briefly set out to appreciate their contents in relation to the State’s case overall.

STATEMENT OF ALCANTARA CALITO

6. His statement states that he is a manager with Dae Won Trading.

On Monday 20 July 2009 at 11am or so he collected the taking for Friday & Saturday from the ground floor office and took them to the top office. Once inside the top floor office he heard heavy footsteps on the steps. An armed man pointed a gun through the hole on his office door and demanded money. He could not escape because the building had no exit. Under gun point he opened the door. The armed man rushed in and grabbed the money bag behind the table and rushed out.

He regained his senses and went to the ground floor to find the robbers had escaped in a company vehicle.

7. Through a stock take he discovered that cash totalling K97, 654.00 and store goods valued at K456.00 were stolen in the robbery. He could not recognise any of the robbers as it happened so fast.

STATEMENT OF UTOVE SOK

8. He was the driver for Dae Won Trading. On that day he drove out to do delivery. He returned with some undelivered cargo and reversed into the wholesale. When he stopped he was held up by a man with a shot gun while another armed man was on the left side of the vehicle. He was ordered out of the vehicle. More men jumped on the vehicle and they drove away. Police came to the scene after the robbery and gave chase.

STATEMENT OF EVELYN PIUS

9. She is a cashier with Dae Won Trading. She was at work that day and saw an armed man follow her boss into his office. Then more armed men appeared from inside the building. One of the robbers stood in front of her and the other cashier and ordered them to hand over the money. She gave the robber whatever cash she had in her hand. She could not recognise his face or the face of any of the others as it all happened so suddenly.

The State called three witnesses who gave sworn evidence. Their evidence in brief is as follows:

EVIDENCE OF INNA DAVID

10. She was employed as a cashier at Dae Won Trading. On 20 July 2009 between 10am and 11am she heard a call out from the other cashier. She then saw two men enter the store. One went to the office while the other went towards her and ordered her and the other cashier to hand over the money. She did as ordered. The other robber came out of the office and they quickly left. It all happened very fast. She described the one who held her up as wearing a wool cap which covered most of his face and she could not recognise him. She did not recognise the accused during the robbery.

EVIDENCE OF ERICK POSA

11. He was the arresting officer. On 20 July 2009 he was on duty when a radio broadcast reported an armed robbery at West Goroka. He went to the scene with other policeman. They were told of the robbers escape with a company vehicle. He and his group of policemen followed the rest to Kamaliki. He and the driver followed the highway to await the others. Two to three hours later a suspect was apprehended. He drove into the coffee factory nearby and saw the accused with two policemen.

12. The policemen gave him two live cartridges, a shot gun and some cash. He conveyed the accused to the police station and searched him. He found K1000. 00 in the accused pocket. He cautioned the accused and placed him in the cells. On 21 July 2009 he conducted the Record of Interview. Upon questioning he stated that there was no other robbery reported that day. He also stated that he knew the accused from past similar offences.

EVIDENCE OF JOE KUNO

13. He was one of the police men who apprehended the accused in the coffee garden some hours after the armed robbery. He told of how he stopped the accused and removed the shotgun, cartridges and cash. He then handed the accused over to the arresting officer. He further stated that no other person was arrested. The accused was arrested far away from the abandoned vehicle and five hours after the robbery.

He told the Court that he had not known the accused prior to his apprehension.

For the defence case the accused gave sworn evidence.

EVIDENCE OF SUL GUNUA

14. He is married with four children. He lives at 6 mile along the Okuk Highway towards Simbu. He was employed as a guard with Suwai Security Company. On 20 July 2007 it was his day off so he was at Kamaliki. He went there to stay with his brother’s son.

15. In the morning he went to look for fire wood in the coffee block. He then saw some boys who told him to go to where they were. They gave him some money but did not know how much. They enquired about where he lived. He told them that he lived around where they were standing. They then gave him the shotgun and the cartridges and told him to keep them since he lived nearby. They told him that they’d return to pick them up later. He then took them and went along the road when police stopped and apprehended him.

16. Upon examination as to what he was doing there when he resided at 6 mile he stated that his brother had a block in the area and lived there so he went to visit him. That was when he met the boys. The boys told him that he had seen them already and gave him the money, gun and cartridges. Police later apprehended him at the back of the coffee factory.

When he was questioned at the police station, he did not say anything to the police because he did not know anything about the robbery.

17. During cross examination he told the Court that his brother Michael Gunua lived in a block near the back of the factory at Kamaliki. His brother’s house was 200 meters from the factory. He was collecting firewood when he met the boys who gave him the items. He did not know the boys but accepted what they gave him out of fear.

The place where he was arrested was not a plantation but it was one of many plots of coffee owned by individual block holders.

18. He denied being a part of the group that robbed Dae Won Trading. When asked why he did not tell police about his presence there he stated that he did...