The State v William Nanua Kapris (1st accused); Jacob Peningi Okimbari (2nd accused), Collin Masilo (3rd accused), Bonny Solomon (4th accused), Johnny Gumaira (5th accused), Damien Inanei (6th accused), Kito Aso (7th accused), Joyce Maima (8th accused), Kia Warren (9th accused), Bobby Selan (10th accused), Reuben Micah (11th accused), Isabella Kivare (12th accused), Elvis Bala Aka (13th accused), Peter Allan Popo (14th accused) (2011) N4232

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2011
• Court: National Court
• Citation: (2011) N4232
• Docket Number: CR NOS 251 OF 2010 &1455, 1457, 1433, 1444, 1447, 235, 287,78, 79, 1459, 1431, 76, 77, 239, 237 & 235 OF 2009
• Year: 2011
• Judgement Number: N4232

Full Title: CR NOS 251 OF 2010 &1455, 1457, 1433, 1444, 1447, 235, 287,78, 79, 1459, 1431, 76, 77, 239, 237 & 235 OF 2009; The State v William Nanua Kapris (1st accused); Jacob Peningi Okimbari (2nd accused), Collin Masilo (3rd accused), Bonny Solomon (4th accused), Johnny Gumaira (5th accused), Damien Inanei (6th accused), Kito Aso (7th accused), Joyce Maima (8th accused), Kia Warren (9th accused), Bobby Selan (10th accused), Reuben Micah (11th accused), Isabella Kivare (12th accused), Elvis Bala Aka (13th accused), Peter Allan Popo (14th accused) (2011) N4232

National Court: Cannings J

Judgment Delivered: 22 March 2011

N4232

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 251 OF 2010 &

1455, 1457, 1433, 1444, 1447, 235, 287,

78, 79, 1459, 1431, 76, 77, 239, 237 & 235 OF 2009

THE STATE

V

WILLIAM NANUA KAPRIS (1st accused)

JACOB PENINGI OKIMBARI (2nd accused)

COLLIN MASILO (3rd accused)

BONNY SOLOMON (4th accused)

JOHNNY GUMAIRA (5th accused)

DAMIEN INANEI (6th accused)

KITO ASO (7th accused)

JOYCE MAIMA (8th accused)

KIA WARREN (9th accused)

BOBBY SELAN (10th accused)

REUBEN MICAH (11th accused)

ISABELLA KIVARE (12th accused)

ELVIS BALA AKA (13th accused)

PETER ALLAN POPO (14th accused)

Madang: Cannings J

2010: 11, 12, 16, 17, 18, 19, 23, 24, 25 August,

7, 8, 9, 13, 14, 21, 23 September,

5, 12, 13, 14, 15, 18, 19, 20, 21, 22 October,

2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 17 November,

7, 9, 13, 14, 15 December,

2011: 22 March

VERDICTS

CRIMINAL LAW – trial – 14 accused charged with various charges on three indictments – 1st indictment: one charge of armed robbery and one charge of conspiracy against all 14 accused – 2nd indictment: 13 charges of kidnapping and 14 charges of unlawful deprivation of liberty against nine accused – 3rd indictment: one charge of receiving stolen property against 12 accused.

The State presented three indictments against 14 accused, which related to the armed robbery of a bank and the kidnapping and unlawful detention of bank staff and their family members. The first indictment charged each of the accused with one count of armed robbery and one count of conspiracy to commit armed robbery. The second indictment charged nine of them with 13 counts of kidnapping and 14 counts of unlawful deprivation of liberty. The third indictment charged 12 of them with receiving stolen property. All accused pleaded not guilty to all charges against them. It was an agreed fact that the robbery had occurred and the offences of kidnapping and unlawful deprivation of liberty had apparently been committed in connection with it. However, it was contended by the defence that the alleged kidnap victims had colluded with those who had actually committed the robbery.

Held:

(1) Of the 14 accused charged on the first indictment, 12 accused were found guilty of armed robbery and conspiracy, and two accused were found not guilty of armed robbery and conspiracy.

(2) Of the nine accused charged on the second indictment, seven were found guilty of 13 counts each of kidnapping for ransom and 14 counts each of unlawful deprivation of liberty, and two accused were found not guilty of all counts.

(3) Of the 12 accused charged on the third indictment, four were found guilty of receiving stolen property, and eight accused were found not guilty of that charge.

Cases cited

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719

Biwa Geta v The State [1988-89] PNGLR 153

Devlyn David v The State (2006) SC881

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

Paulus Pawa v The State [1981] PNGLR 498

R v Amo and Amura [1963] PNGLR 22

Taiya Balua v The State (2006) SC878

The State v Alpen Popo [1978] PNGLR 18

The State v Alphonse Asarombo & Timothy Lokora (2010) N4035

The State v Boria Hanaio, Bula Hanaio & Timothy Komu (2007) N4012

The State v Francis Laumadava [1994] PNGLR 291

The State v Iori Veraga (2005) N2849

The State v Kusap Kei Kuya [1983] PNGLR 263

The State v Raphael Walimini (2004) N2627

The State v Titeva Fineko [1978] PNGLR 262

The State v Wama Dua, Daniel Bema & John Goga (2005) N2854

The State v William Kapris & Ors (2010) N4139

Dates

The events referred to in this judgment occurred in 2008 unless otherwise indicated.

Abbreviations

The following abbreviations appear in the judgment:

2IC – second-in-charge

BSP – Bank South Pacific

CCTV – closed-circuit television

Chf – Chief

CID – Criminal Investigations Division

Const – Constable

CR – Criminal file reference

Dep – Deputy

Det – Detective

Insp – Inspector

km – kilometre

MOCIT – Major Organised Crime Intelligence Team

N – National Court judgment

NRL – National Rugby League

No – number

Ors – Others

PMV – public motor vehicle

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

PPC – Provincial Police Commander

Reg – registration

RSP – receiving stolen property

s – Section

SC – Supreme Court judgment

SDA – Seventh-Day Adventist

Sgt – Sergeant

SMK – Salim Moni Kwik

Snr – senior

Supt – Superintendent

Tech – Technical

UDL – unlawful deprivation of liberty

v – versus

WNB – West New Britain

TRIAL

This was the trial of 14 accused charged, variously, with conspiracy and armed robbery, kidnapping, unlawful deprivation of liberty and receiving stolen property.

Counsel

P Kaluwin, A Kupmain & M Pil for the State

D L Dotaona for the 1st accused

M Mwawesi for the 2nd, 7th, 12th & 13th accused

A E Raymond for the 3rd, 4th, 5th, 6th, 9th & 14th accused

S L Daniels for the 8th, 10th & 11th accused

22 March, 2011

1. CANNINGS J: On the morning of Saturday 5 July 2008 an armed robbery took place at the Madang branch of Bank South Pacific. The State alleges that, at Lae and Madang from 24 June to 5 July, the 14 accused conspired with each other and other persons to commit the robbery. The State alleges that on the evening of Friday 4 July and in the early morning of Saturday 5 July the bank’s manager and two other bank officers and members of their families were kidnapped and taken to a hotel 40 km out of town, where they were detained at gunpoint by some of the accused. The State alleges that the bank officers were forced by some accused to go to the bank later on Saturday morning and open the strongroom and cash compartments within it, from which K2,407,315.35 cash was stolen. In the course of the robbery another bank officer was detained. The State alleges that the accused who directly committed the robbery joined with those who detained the bank officers and their families and went to Lae later on Saturday where over the next few days they met with the other accused who had remained in Lae and distributed the proceeds of the robbery.

2. None of the accused denies that the offence of armed robbery was committed at Madang on 5 July 2008. They all deny, however, actually committing the offence or enabling or aiding those who committed it.

3. The State presented three indictments:

· The first indictment charged each of the 14 accused with one count of armed robbery under Section 386 of the Criminal Code and one count of conspiracy to commit armed robbery under Section 515 of the Criminal Code.

· The second indictment charged nine of them with 13 counts of kidnapping under Section 354(1)(a) of the Criminal Code and 14 counts of unlawful deprivation of liberty under Section 355(a) of the Criminal Code.

· The third indictment charged 12 of them with receiving stolen property under Section 410(1) of the Criminal Code.

4. The 1st accused pleaded guilty, on arraignment, to some charges but later with the leave of the court changed his plea to not guilty to all counts (oral ruling 10.11.10). All other accused pleaded not guilty to all charges on arraignment and did not change their pleas. All accused therefore pleaded not guilty to all charges.

5. This judgment provides reasons for the court’s verdict on each accused in relation to each charge. It is set out as follows:

PART A – THE EVIDENCE

PART B – FINDINGS OF FACT

PART C – THE OFFENCES AND THEIR ELEMENTS

PART D – CHARGES FACED BY EACH ACCUSED

PART E – DETERMINATION OF VERDICTS FOR EACH ACCUSED

PART F – SUMMARY OF VERDICTS

PART A: THE EVIDENCE

6. Sixty witnesses gave oral evidence for the State and 110 exhibits were admitted into evidence, including witness statements by some persons who did not give oral testimony.

7. For the defence, eight of the accused gave sworn evidence and six other defence witnesses gave evidence in the course of seven voir dire hearings. After the close of the State’s case and rejection by the court of no-case submissions by all accused (oral ruling, 09.12.10):

· none of the accused gave sworn evidence;

· 12 remained silent; and

· two made unsworn statements from the dock.

8. Only one defence witness gave evidence in the trial proper.

9. The evidence is summarised in the following order:

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