State v Konga [1987] PGNC 12; N621 (23 September 1987)

Unreported National Court Decisions

N621

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN KONGA

Mount Hagen

King AJ
22-23 September 1987

KING AJ: The defendant has ed not gnot guilty to the charge in the indictment presented against him that on 29 September 1983 he stole from one Miti Ketika with actual violence the sum of K578 the property of the Kagamuga Coffee Company and that at the time he was armed with a dangerous weapon namely an axe and was in the company of others. (I should mention out the outset that the indictment in fact charged that K640 was taken but the State counsel said in reciting the short facts that the figure was actually K578 and the defence counsel indicated that since his defence was that the accused was not present at the time of the robbery and not involved in it he was not embarrassed by the alteration in the amount and did not require a formal amendment of the indictment.

The State case comprised the evidence of two witnesses, Miti Ketika and Tan Kangil, both of whom said they were coffee buyers employed by the abovenamed company, that they had been given K640 each by the Manager early on the morning of 29 September 1983 to buy coffee, and that whilst driving around buying coffee they came to Wurup market about 9 am, 10 am. Ketika said he got out, bought a bag of coffee which he put on the back of the vehicle being driven by Kangil, and was about to get in to the vehicle when the accused came up holding an axe in one hand and snatched the bag Ketika was carrying containing the balance of the money and ran off. Ketika gave chase calling the accused’s name but gave up in a dense coffee filled.

The evidence of the driver Kangil completely supported Ketika.

Both said it was a fine clear day and both said they knew the accused by sight and name; that thier families were connected to his tribe by marriage; and that they had seen him regularly at Wurup market. They also gave evidence of having identified him to the police in the cells well after the robbery.

The defence submitted.

1. & T60; That the identification was unsatisfactory and reminded me of the cautions expressed on John Beng -v- The State 1977 PNGLR 115.

2. ـ T60; That the identific in tlls wfair and unsd unsatisfatisfactoractory.

3. &ـ T60; That inat in particular a discrepancy was shown in the eve of Ketikause he made a statement in which he said thid the acce accused used his alleged brother Warua Konga and eleven others were involved in the robbery ade no mention of any otherothers until the statement was put to him when he gave evidence.

4. &#T60; inat ew vi thefaboveabove the accused’s evidence given on oath that he was not there and in fact lived with differentle inBaiyeer dit shoe preferred. It was pointed out that the record of d of interinterview view was cwas consisonsistent.

5. ټ&#F60; lynally that that there was no evidence of violence.

Despite these criticisms I have no hesitation in acceptingstateessesy were not shaken in cross examination. The discrepancy in Ketika’#8217;s ev;s evidencidence, if it is a discrepancy, was explained by reference to the lapse of time, his forgetting Warua Konga until reminded, and the fact that there were many other people in the market some of whom began to run when the accused ran. Neither state witness had any reason to be biased against the accused. Indeed their connections with him according to their own evidence, if not close, were certainly enough to give them every incentive not to falsely or hastily accuse him.

As to the identifications in the cells, the State case does not depend on it and I regard it as superfluous. I agree it was less than satisfactory in that the witnesses said they were told the accused was in the cells by reference to his name, and in that Kangil said he was taken straight to the cell where the accused was without being shown other cells containing other people. However these things are understandable since both witnesses said they knew the accused by sight and by name and had already told the police that.

Finally, on the evidence in the case, especially as to clear visibility, the problems discussed in Beng’s case (supra) are not a factor. I reject the accused’s evidence although I do not take into account against him the fact that he did not call his wife and Warua Konga. He gave evidence that his wife had left him and gone away and the State Counsel informed me that Warua Konga was at large and being sought by the police. One would hardly expect them to have been called. However the accused’s denials were, as submitted by the state, simple and without substance and he contradicted himself by first denying that he had ever been to Wurup market and then conceding he had been there for political purposes.

As to the question of violence, I am satisfied that the mere physical snatching of the money bag, as the state submitted, amounted to violence. For the sake of completeness however, I should say that on the whole of the evidence I am not satisfied the accused used his axe in a threatening fashion although the fact that he was holding it could only have added to the apprehension of the witness Ketika.

The accused is convicted of the offence charged.

Lawyer for the State: S. Norum.

Lawyer for the Defence: D. Poka