The State v Timothy Damusuk

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2016
• Citation: (2016) N6229
• Court: National Court
• Year: 2016
• Judgement Number: N6229

Full : CR Nos 1077-1096 of 2013; The State v Timothy Damusuk, Kulem Kisou, Kabiang Lod, Kadaman Nanui, Muluk Panaluan, and Luwi Siam (2016) N6229

National Court: Cannings J

Judgment Delivered: 22 March 2016

N6229

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1077-1096 OF 2013

THE STATE

V

TIMOTHY DAMUSUK

1st accused

KULEM KISOU

2nd accused

KABIANG LOD

3rd accused

KADAMAN NANUI

4th accused

MULUK PANALUAN

5th accused

LUWI SIAM

6th accused

Madang: Cannings J

2015: 18, 19, 20 March, 17, 23 April, 3, 19, 23 June, 9 July,

12, 13, 14, 18, 19, 20 August, 9 September, 3& 4 December

2016: 22 March

CRIMINAL LAW – rape: Criminal Code, Section 347(1) – abduction: Criminal Code, Section 350(1) – unlawful deprivation of liberty: Criminal Code, Section 355(b) – robbery: Criminal Code, Section 386(1).

EVIDENCE – confessions – probative value depends on nature and extent of confession and circumstances in which it was made – need to exclude reasonable doubt that a confession is false.

EVIDENCE – accomplice evidence – danger of relying on evidence of a co-accused against another co-accused – necessary for trial judge to give warning of risks involved.

EVIDENCE – circumstantial evidence – principles to apply – absence of identification evidence

Six accused were each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery following an incident in a bush location in which three complainants (scientists conducting research) were allegedly held up with weapons, threatened with violence and robbed and one of the complainants was allegedly abducted, unlawfully deprived of her liberty and sexually penetrated without her consent. The State alleged that each of the accused either directly committed each of the offences or aided or assisted other accused in doing so. All pleaded not guilty. The three complainants gave evidence but were unable to identify the persons responsible for committing the offences and no other witness gave direct evidence of involvement of any of the accused. In seeking convictions, the State relied on three types of evidence: (1) confessions by the accused as to their individual involvement as set out in police records of interview and confessional statements; (2) evidence of their co-accused also being involved (accomplice evidence) as set out in police records of interview and confessional statements; (3) evidence of property stolen from the complainants or other suspicious property being found at the homes of some of the accused. All accused were arrested and remanded in custody soon after the alleged incident. During the course of the trial, before the close of the State’s case, four of them escaped and have not returned to custody. The trial against all six accused continued in their absence. The two who remained in custody gave sworn evidence, both during a voir dire on the records of interview and confessional statements of all accused and in the trial proper. Their evidence was that they had been mistreated by the Police and forced to make false confessions and that they were somewhere else, doing something else, at the time of the incident. Their general defence was denial of any involvement; their specific defence was an alibi.

Held:

(1) It was not seriously contested and the Court accordingly found as undisputed facts that the events described by the three complainants in their evidence actually occurred and that all but one of the offences charged in the indictment were committed by a group of young men.

2) Though none of the complainants could identify whether any of the accused was in that group of young men, and there was no other direct evidence of their involvement, it was open to the State to prove their involvement by reliance on confessional evidence, accomplice evidence and circumstantial evidence.

(3) Where a decision is made to admit into evidence a record of interview or confessional statement or any other evidence of an accused admitting to involvement in an offence, it remains necessary for the Court to make an assessment of the probative value of that evidence, taking into account the nature and extent of the admission or confession and the circumstances in which it was made. It is part of the Court’s duty to afford the accused the full protection of the law, to exclude reasonable doubt that a confession is false.

(4) As the State was also relying on the evidence of accomplices, it was necessary to apply the principles for assessing accomplice evidence: the Court, as the tribunal of fact, must caution itself of the danger of convicting or making a finding of fact adverse to any of the accused based on the testimony (sworn or unsworn) of an accomplice.

(5) Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon afterwards in the possession of a person not the owner, a presumption of fact may be raised against that person, if he does not give a reasonable account of how he got the property, to the effect that he stole the property.

(6) As each of the accused raised an alibi (though only two gave evidence in support of it) it is necessary to consider the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, including: the burden of proof does not shift from the prosecution; in practical terms, the accused must lead some evidence of an alibi; it must be sufficiently convincing to create a reasonable doubt in the mind of the judge; how strong or convincing the alibi evidence must be, depends on the strength of the prosecution case, if the prosecution case is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the tribunal of fact as to the guilt of the accused.

(7) As the State based its case on circumstantial evidence (admissions by some accused of their own involvement, accomplice evidence and evidence of stolen or suspicious property being found at the homes of some of the accused) it was necessary to have regard to the principles about entering a conviction based on circumstantial evidence: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt.

(8) Having applied the above principles and cautioned itself as to the risks involved in entering a conviction based on confessions, the evidence of accomplices and the doctrine of recent possession, the Court concluded that the State had presented a strong case against each of the accused, which was not tangibly dented by the evidence of the accused, bearing in mind that four of the accused gave no evidence and the evidence, including the alibi evidence, of the two who gave evidence was vague and uncorroborated. The only reasonable inference to draw from the proven facts was that each accused was involved in the incident and committed five of the six offences charged on the indictment.

(9) The State proved its case beyond reasonable doubt and all accused were found guilty of five of the six charges.

Cases cited:

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719

Bank of South Pacific Ltd v Anton Sekum (2011) N4588

Billy Nara v The State (2007) SC1314

Devlyn David v The State (2006) SC881

John Jaminan v The State (No 2) [1983] PNGLR 318

Onama Andrew v The State (2009) SC997

Paulus Pawa v The State [1981] PNGLR 498

R v Griffin [1974] PNGLR 72

The State v Ben Gregory CR No 170 of 2003, 12.03.07, unreported

The State v Boria Hanaio (2007) N4980

The State v Francis Laumadava [1994] PNGLR 291

The State v Justin Komboli (2005) N2891

The State v Mathew Lewaripa (2015) N6027

The State v Steven Tari Nangimon Garasai (2010) N4137

The State v Toipo Dimasi (2008) N3550

The State v William Nanua Kapris & 12 Others (2011) N4305

The State v William Nanua Kapris (2010) N4139

Dates

The events referred to in this judgment occurred in 2013 unless otherwise indicated.

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigations Division

Const – Constable

CR – Criminal file reference

Gen – General

GPS – Global Positioning System

Insp – Inspector

N – National Court judgment

No – number

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

PPC – Provincial Police Commander

ROI – record of interview

RPNGC – Royal Papua New Guinea Constabulary

Sat – Saturday

SC – Supreme Court judgment

Sgt – Sergeant

Snr – senior

Supt – Superintendent

Tue – Tuesday

UDL – unlawful deprivation of liberty

USA – Unites States of America

Glossary

The following people and places are referred to in the judgment.

People

Aweti Salir – First Const, State witness #6

Benjamin Freeman – complainant re count 6, State witness #3

Bulisa Iova – complainant re count 5, State witness #1

Bumae Zakang – Snr Const, State witness #13

Dr Alexandra Class – complainant re counts 1 to 4, State...