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of another person , and the unlawful possession of various
explosives and firearms. There was also a cha rge of theft
of a motor vehicle . Having convicted Mr Mokubung of the
offences I have just enumerated, the trial judge sentenced
Mr Mokubung to an effective life term .
I need not take the charges individually because
for reasons that will shortly become clear, I am satisfied
that leave to appeal to a Full Court should be granted
against both the convictions and the sentences that
followed from them 10
Overall , what is recorded in the trial judge's
judgment seems to me to b e wholly insufficient to justify the
convictions the trial judge returned . The evidence admitted
against Mr Mokubung appears to have been limited to DNA
found on a cell phone at the scene of the robbery, DNA
found on a balaclava which appears, at least on the trial
judgment, not to have been foun d at the scene of the
robbery, h is presence in a car that looked very much like
the getaway car used at the robbery , and the presence in
that car of another one of the accused and firearms which 20
were linked to the r obbery by ballistics tests.
There were also admission statements extracted
from M r Mokubung. Mr Mokubung says that they were
coerced from him. The trial judge rejected that contention
after a trial -within -a-trial . However, it is difficult to ascertain
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from the judgment what Mr. Mokubung’s admissions were ,
and what role they played in the trial judge's ultimate
decision to convict him. In the judgment on sentencing it
emerges that the trial judge felt herself able to reach a
conclusion that Mr Mokubung wa s guilty of all the charges
proffered against him without the admission statements.
The trial judge convicted Mr Mokubung of the
murders that took place in the course of the robbery on the
basis of common purpose . However, I do not think that the
trial judge adequately set out how the doctrine of common 10
purpose fills the gap between evidence of Mr Mokubung's
DNA on a cell phone found at the scene of the armed
robbery and his participation in the murder of the two
people who died.
One can speculate on any number of scenarios that
might fill that gap, and which might have found support in
the evidence led at trial. But criminal c onvictions are
returned not on speculation but upon facts that leave no
reasonable possibility of innocence. Upon reading the trial
judge's judgment as a whole I do not think that there are 20
within that judgment facts that exclude the reasonable
possibility that Mr Mokubung is innocent of any or all of the
counts of which he was convicted.
Turning to the judgment on sentencing , the
cumulative effect of the sentences the trial judge imposed
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4
was an effective life term. Although a number of sentences
of varying length were imposed in relation to the
kidnapping, the robbery, the attempted murder, the unlawful
possession of firearm s and explosives, and the theft , t he
imposition of the life sentences for the two murders mean ,
by virtue of the Correctional Services Act , that all of the
sentences are rolled together into a life term.
Without having made findings in either judgment as
to Mr Mokubung's degree of participation in the murders he
is said to have committed , and the precise respect in which 10
he is said to have made common purpose with whomever
murdered the two deceased, I do not think that the trial
judge equipped herself wit h the facts necessary to justify a
life sentenc e. It seems to me that even if I were to accept
that all the convictions are safe, I would still be left in some
doubt about whether a life sentence could be justified given
the facts that are currently availa ble to me on Mr
Mokubung's alleged degree of participation in the two
murders on which the life sentences were handed down.
For that reason, leave to appeal against the 20
sentences handed down must be granted.
I must record my gratitude to counsel f or the
National Prosecuting Authority who, despite having been
briefed at very short notice and given the benefit of a short
adjournment to read the trial judgments, very fairly