Dala v Frogie [2007] PGDC 30; DC536 (7 May 2007)

DC536

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 82 of 2006

BETWEEN

REX DALA
Informant

AND

TOMMY TOM MAJOR FROGIE
Defendant

Goroka: M Gauli, PM
2007: May 07

CRIMINAL - Particular offence – Break, enter and stealing – Identification – Defence of alibi.

Cases Cited
Nil

References
Section 398 (a) (i) of the Criminal Code Act

Counsel
For the Prosecution – Sergeant Bonke, Goroka Police Station
For the Defendant – In Person

07 May 2007

DECISION OF THE COURT

M Gauli, PM: The defendant Tommy Tom Major Frogie stands trial on one count of breaking, entering and stealing pursuant to Section 398 (a) (i) of the Criminal Code Act, Ch. 262. This provision states and I quote:

“(2) A person who -

(a) breaks and enters

(i) a school house, shop, warehouse, counting-house, office, store, vehicle, garage, hanger, pavilion, factory, workshop, tent, caravan, petrol station, ship, aircraft vessel or club; and committed a crime in it; or

(b) _ _ _ _ _ _

is guilty of a crime”.

2. The brief facts are these. On the 11 of December 2006 in the early hours about 4:00 o’clock in the morning a group of criminals broke into the office of the Guard Dog Security which is located along the airport road in Goroka town in the Eastern Highlands Province of Papua New Guinea. The Guard Dog Security personnel’s who reside around the Guard Dog Security Base there were awoken by a noise of shouting. And they saw the defendant walking out of the said office. The defendant Tommy Tom denied being involved in the crime. He said that he was somewhere else at the time the crime was committed. He raises a defence of alibi.

3. There is only one issue to be decided and that is whether the defendant was involved in the commission of the crime.

4. The prosecution relied on the evidence of the two eye witnesses namely Paul Sakias and Ben Philip, both employees of the Guard Dog Security as securities. The prosecutor also relied on the Record of Interview (R.O.I) which is tendered by consent of the defendant, it is marked EXHIBIT ‘C’.

5. The witness Paul Sakias gave evidence that the defendant Tommy Tom was the employee of the Guard Dog Security as a security personnel. Tommy Tom left his employment some three months before the break, enter and stealing occurred on the 11 December 2006. Paul Sakias was awoken by the shouting at the Guard Dog Security barracks. Paul Sakias was about five metres away from defendant Tommy Tom when he saw the defendant walking out of the office of the Guard Dog Security. Tommy Tom was armed with a pistol and he wore a army cap on his head and a buttoned shirt covering his nose and mouth. The area was flooded with bright security lights. Paul Sakias said he identified the defendant by the way he walked as he walked out of the building.

6. The witness Ben Philip, one of the security personnel’s of the Guard Dog Security, gave evidence that he was employed by this security firm after defendant Tommy Tom had left his employment with the same security firm. However each time defendant Tommy Tom returns to Goroka from Lae, the defendant would come around to their barracks, so he came to know of the defendant. Ben Philip gave evidence that on the early morning of the 11 December 2006 he was at the barracks when he was awoken by shouting of some of their co-security personnel’s. He looked out of the window and saw defendant Tommy Tom leaving the security office. Defendant Tommy Tom was wearing a short trousers and a wool cap. He saw Tommy Tom was standing behind the other person who was armed with a pistol. And that person was pointing the pistol towards the window of the barracks where Ben Philip witness was in. On seeing this, Ben Philip dropped or lowered himself to the floor.

He identified the defendant by the way he walked at the time of the incident.

7. The prosecutor tendered the Record of Interview (EXHIBIT ‘C’). In the R.O.I defendant Tommy Tom denied being involved in the alleged crime. He said he was with two other people drinking beer at Piswara Settlement all through the night until the day break the next day. Defendant raised a defence of alibi during the R.O.I.

8. From the evidence for the prosecution as it stands, the eye witnesses Paul Sakias and Ben Philip did not describe the way how Tommy Tom walks. Their evidence also contradicts each other. Witness Paul Sakias said that Tommy Tom was armed with a pistol and he wore an army cap. Witness Ben Philip said Tommy Tom wore wool cap and a short trousers. He made no mention of Tommy been armed with a pistol. I find these witnesses evidence is not consistent at all.

9. The defendant Tommy Tom had raised a defence of alibi in the R.O.I, that he was at Piswara Settlement at the time the break, enter and stealing was committed at the Guard Dog Security Base. The prosecution has failed to provide evidence to discredit the defence of alibi. Where a person charged with break, enter and stealing has raised a defence of alibi during the record of interview, and the investigation officer fails to investigate matters put to him in alibi, the prosecution’s evidence would gain no strength in the circumstances where identification of the person charged is inconsistent.

10. For this reason I do not intend the defendant to give evidence on his defence of alibi. Where prosecution fails to provide evidence against the defence of alibi, the defendant need not be allowed to call evidence to establish its alibi. It is sufficient that the prosecution’s failure to provide evidence against alibi establishes on the balance of probabilities that the defendant’s alibi must sustain and the defendant must be acquitted.

11. Regarding the evidence of identification there is no rule of law that the evidence of one witness as to identification is sufficient or that there must be a police parade for the purpose of identification. It all depends on the circumstances of each case before the Court. The court needs to be satisfied that the evidence of identification is satisfactory and there is no flaw or mistakes that would create any doubt in the mind of the court. I am not convinced by the evidence of the witnesses Paul Sakias and Ben Philip as to the identification of the defendant was satisfactory especially when their evidence of identification was so inconsistent.

12. For the reasons alluded above I find that the prosecution has failed to establish a prima facie case against the defendant that he was involved in break, enter and stealing incident at the Guard Dog Security Base in Goroka on the 11 of December 2006. I find the evidence for the prosecution to be insufficient. And I make an order that the case be dismissed and the defendant discharged fortwith.

For the Prosecution - Sergeant Bonke, of Goroka Police Station
For the Defendant - In Person